Immigration Law Practitioners' Association
A Briefing for Peers on the Asylum and
Immigration (Treatment of Claimants, etc.) Bill
Second Reading in the House of Lords
15th March 2004
Clause 14 - the Unification of the Appeal
System
A
challenge to the Rule of Law.
‘The
Bill attempts to immunise manifest illegality. It is an
astonishing measure. It is contrary to the rule of law.
It is contrary to the constitutional principle on which our
nation is founded that Her Majesty’s courts must always
be open to all, citizens and foreigners alike, who seek just
redress of perceived wrongs.’
Lord Steyn - 3rd
March 2004.[1]
‘It
is a novel, bizarre and misguided principle of the legal
system that if the exercise of legal rights is causing
administrative inconvenience, the solution is to remove the
right..… a right of appeal is a valuable and necessary
constraint on those who exercise original jurisdiction.’
Tony Blair
- in 1992. [2]
1.
Summary of ILPA’s concerns on Clause 14
As long
ago as 1771 the principle was established that an African
slave was no less entitled to the protection of the courts
than was a British subject. Clause 14 threatens to end
that principle. It takes decisions about asylum and
immigration away from the courts. In so doing, it
disapplies the rule of law and will upset the constitutional
checks and balances on government power. It threatens
to provoke a constitutional crisis between the courts and the
executive. It is fundamentally undemocratic and sets a
dangerous precedent of restricting the basic legal rights of
an unpopular minority.
2.
What Clause 14 says.
Clause 14
creates a single tier tribunal called the Asylum and
Immigration Tribunal – or AIT - to hear all immigration
appeal cases [sub clauses (2) to (6)]. (This single
tier tribunal replaces the existing structure of a first tier
appeal to an adjudicator with a right of appeal to the second
tier Immigration Appeal Tribunal – or IAT.) Much
more significant is the removal (or ‘ousting’) of all
supervision by the higher courts of all immigration
appeals and Home Office removals in appealable cases [sub
clause (7), new clause 108A]. In place of rights of
appeal, it is proposed that the new Tribunal will have the
power to review its own decision [clause 14(6)], and, if it
wishes, seek a non-binding opinion from the Court of Appeal [clause
14(7) new clause 108B].
This will mean
that there will be:
·
no rights of appeal to the Court of Appeal or
the House of Lords;
·
no judicial and statutory review by the
High Court of the Tribunal’s decisions or procedures;
and
·
no legal challenges to Home Office acts of
deportation or removals following an appealable decision.
·
no right to challenge decisions or acts on the
grounds that they contain an error in law, or breaches of
natural justice or the Human Rights Act [new clause 108A sub
clauses (3) and (5)].
Clause 14
affects all those subject to immigration
control, not just refugees.
3.
The need for proper judicial safeguards
The
current constitutional legal safeguards are needed to protect
basic human rights and to consider complex issues of law.
The law in question is constantly developing and involves
interpretation and application of increasingly complex
national law and rules, international treaty provisions and
principles of international law, including EU law. Because
of the gravity of the issues under consideration, abolition
of access to the courts will undoubtedly lead to miscarriages
of justice. As a High Court judge said in such a case
recently:
If the
possibility of judicial review had not existed the claimants
would wrongly have been returned to the Ivory Coast.[3]
In other
words, Britain will be sending refugees abroad to torture and
death.
4.
Passage of the bill so far
The
Government did not make the full extent of their proposals
clear at the time of the few weeks of unspecific consultation
in October 2003. At Committee in the Commons, the
junior minister David Lammy struggled in the face of a
barrage of criticism. The bill was amended slightly to
reflect new ideas about how the single tier should review
itself. The clause was then roundly criticised in
reports by the Commons Home Affairs Committee, the Joint
Committee on Human Rights and the Commons Constitutional
Affairs Committee. At report stage on 1st
March new amendments clarified and reduced the scope of the
ouster of judicial review of Home Office acts. In over
2 ½ hours of debate on the floor of the House of Commons
only Mr Lammy stood up to defend the bill, and over 30 Labour
back benchers voted with the Liberal Democrats to delete the
appeals clause. The Tories put forward and voted on their own
amendment, which was supported by the Liberal Democrats.
5.
The Government’s case – multi-layered
appeals and abuse
Ministers have
said the proposals are necessary to counter abuse and delay
in the appeals system[4], and
to reduce costs[5].
These problems are overstated, in our view, and it is wholly
disproportionate to rely on them as justification for the
proposed attack on access to the courts.
The current
two-tier system with onward rights of appeals on a point of
law is the general model advocated for Tribunals by the
report of Sir Andrew Leggatt in his 2001 report Tribunals
for users: one system, one service[6].
This was the first major review of Tribunals for 40 years.
Sir Andrew further recommended that precedent set by second
tier tribunals should bind the first tier, leading to
uniformity and consistency of decision-making in the lower
tier and greater certainty for tribunal users. The
Leggatt model balances fairness and efficiency. The
government has to argue that immigration is a special case.
Abuse
It is a much-peddled
myth that the great majority of asylum claims are abusive.
Recent Home Office figures show that 20% of asylum appeals
are allowed by the first tier adjudicator – i.e. one in
five Home Office asylum decisions are found to be wrong.
Other appeals are successful at later stages - the Refugee
Council estimate that in 2001, 51% of asylum seekers were
successful either at the different stages of appeal or where
the Home Office withdrew their refusal decision.[7] A quality
appeal system clearly is vital to protect human rights.
It is easy but
wrong to think all failed appeals are abusive. The
President of the soon to be abolished Immigration Appeal
Tribunal, Sir Duncan Ouseley, recently suggested that none
of the cases that proceeded to the Tribunal against the
decision of the first (Adjudicator) tier of appeal should be
considered abusive.[8]
Proper legal safeguards are vital to protect cases with merit.
Weak cases can
be effectively targeted by existing measures addressing the
merits of individual cases – such as improved decisions
on legal aid funding, the targeted use of costs penalties,
striking out of actions by the courts or certificates
curtailing appeal rights. The government legislated
radically in these areas in 2002, and is now implementing
strict new controls on legal aid in March and April 2004.
The Court of Appeal gave strong new guidance on striking out
weak judicial review applications in December 2003.[9] We need time for such
changes to bed down, not new experimentation with basic
constitutional safeguards.
Delay
The government
say that it is only in immigration law that weak appellants
want to draw out their cases and delay proceedings. This
is not true – a litigant in any field who has a weak
case is likely to want to delay judgement against him. Further,
the government say genuine refugees want quick decisions.
This is of course true, but the biggest cause of delay is the
Home Office. ILPA’s members are constantly trying
to speed up Home Office procedures on behalf of clients who
are sick of delays – and they frequently have to
judicially review the Home Office to get a decision. It
has not been uncommon for asylum claimants to be in limbo
with no decision for up to 5 years. Most decisions on
new claims are now made in two months - but there are still
20,000 asylum claimants in a backlog going back many years.
Further, there are often delays of many months if not years
between the Home Office receiving a request for an appeal and
them notifying the courts. Delays in the system can be
best tackled by improving Home Office and tribunal
bureaucracy and decision-making.
All avenues of
appeal are already subject to strict timetables. This
includes the new Statutory review –introduced in
the Nationality, Immigration and Asylum Act 2002 as a
restricted and rapid High Court replacement for judicial
review of the Tribunal’s decisions granting permission
to appeal. Introduced in 2003, Statutory Review takes only 4
weeks, but is now to be scrapped by the Government before
there has even been time to assess its impact.
Although
delays at the existing Tribunal have arisen over the last
year or so, this is because the Tribunal has not been
properly resourced to deal with a rise in the number of
appeals against decisions of adjudicators. This is the
view of the President of the Tribunal.[10] Now that asylum claims are falling
drastically, we can expect the Tribunal to catch up over the
next few months.
The government
has said there are between 5 and 13 layers of appeal to
suggest asylum seekers routinely “play the system.”
In fact, on its own figures, only about 14% of appeals ever
get to the second layer. This is because about half of
those who lose their first appeal do not even try to appeal
further, and only a third of those that do try are allowed to
do so. Weak cases are filtered out because they are not
given permission to appeal. It is simplistic to
try to avoid any level of complexity in the appeal procedure
– this reflects the importance and complexity of the
legal issues that need differing levels of court scrutiny.
Higher appeals are vital for checking issues of fundamental
human rights, particularly when poor Home Office decision-making
means that 20% of decisions are still overturned on appeal.[11]
Cost and legal aid cuts
The
government are already instituting a new tightened regime of
legal aid, aiming to drastically cut the immigration legal
aid budget. Many quality solicitors are stopping legal
aid immigration work. ILPA believes these changes may
in fact prevent cases with merit to fail on appeal because
proper representation is not funded. It is reckless to
justify further reforms that will restrict access to justice
on the basis of cost – particularly before the full
effect of the legal aid measures has been felt.
6.
Numbers and abuse - the misuse of statistics
Ministers have
relied on misleading statistics. They argue that the
changes are proportionate as in only a small percentage of
asylum cases is the first appeal outcome changed by further
appeal. The implication is drawn that the remainder of
cases are abusive, and the resources are wasted on them.
The
value of precedent
This
approach ignores the qualitative value of appeals. It
overlooks the value that appeals add in terms of legal
precedent. Even an unsuccessful appeal may identify
important legal errors that do not change the final result in
that particular case. But in a later case, the same
error may be the difference between life and death. So
whatever the outcome, the Tribunal’s decision provides
essential guidance for future decisions. The precedent
set means that future appeals (and Home Office decisions) are
more likely to get it right first time. Legal precedent
is the tried and tested mechanism to ensure quality and
consistency in first tier appeal decisions. It is the
way in which case law lives and evolves.
The Immigration Appeal
Tribunal
In any event
the use of appeal statistics has been misleading. In
respect of the current second tier of appeal – the
Immigration Appeal Tribunal (or IAT):
·
The figures available[12]
are inherently unsatisfactory, as they do not track cases
over time and do not take into account the effect of
increasing backlogs at the Tribunal. ‘On the basis
of the Home Office’s published figures, it is not
possible to say what proportion of applicants whose claims
are rejected by the adjudicators seek leave to appeal to the
Tribunal.’[13]
·
Further, the figures exclude all immigration (non asylum)
appeals.[14]
·
At Commons Standing Committee the junior minister, David
Lammy, claimed the IAT makes a difference in final outcome
only 3-4% of appeals.[15] This percentage is
wholly irrelevant to the question of abusive misuse of the
Tribunal. It judges the Tribunal’s performance
against all appeals, not just those where an
application was even made to the Tribunal.
·
The Government ignore the fact that many of the appeals
against adjudicators’ decisions are brought by the Home
Office not by refugees. The figures do not
differentiate these cases
·
At Report debate in the Commons Mr Lammy said the IAT allowed
only 2,000 out of 33,000 applications. This ignores the
initial filter of refusal of permission, which takes only 2-4
weeks and filters down the 33,000 applications to the
Tribunal by two thirds.
·
In fact the IAT gave permission for a full hearing in10,699
cases – this is only 14% of the total number of appeals
heard by adjudicators (78,050).
·
The figures show the proposed unification of the appeal
system would impact directly on thousands of asylum
appellants a year[16]
– not to mention non-asylum immigration cases. Even
if it were only hundreds, as the minister has suggested, is
this really an acceptable level of miscarriage of justice to
sacrifice in the name of expediency? Would such an
argument be accepted for removing access to the courts in,
say, criminal law? What area of justice is next for
such treatment?
A Tribunal
decisions not to allow an appeal to itself is regulated by
Statutory Review. This is perhaps the third layer of
review. In the year 2003 there were only 322
applications and almost 20% were successful.[17] The entire procedure takes only 4
weeks and those that fail have no other remedy.
Court of Appeal
In the Court
of Appeal – the next layer - the figures show there are not
large numbers of abusive and time-wasting applications.
·
During the ‘legal year’ (October – September)
2000 – 2001, the Court of Appeal heard only 57 appeals
from the Immigration Appeal Tribunal.
·
During the legal year 2001 – 2002, the Court of Appeal
heard only 66 appeals from the Immigration Appeal Tribunal[18].
·
During 2002 there may have been as few as 38 substantive
appeals at the Court of Appeal – while the Tribunal
determined 5,565 appeals[19].
·
In other words, only about 1% of Immigration Appeal Tribunal
determinations are appealed to the Court of Appeal.
·
This is less than 0.01% of all asylum appeals.
·
In an analysis by ILPA of appeals to the Court of Appeal from
the Immigration Appeal Tribunal for 2002, half of the 38
cases were successful.[20]
House of Lords
In the House
of Lords – the final layer - there were only 2 full
hearing in 2002. The Home Office brought one of them. Both
set significant points of principle.
In general, it
is clear that appeals to the Court of Appeal and the House of
Lords are not time wasting or abusive; they preserve the
quality and development of our law.
‘The
argument for removing the jurisdiction of the House of Lords
cannot rest securely on the principle of removing scope for
unmeritorious appeals, since few cases proceed to the highest
court. The House of Lords should retain its usual
overall jurisdiction in immigration cases.’
Constitutional
Affairs Committee[21]
Judicial Review
Statistics for
judicial review are unstable and difficult to interpret.
All applications are initially filtered by a decision on
whether to grant permission, or “leave” to proceed.
Many cases settle after the permission stage. This is
often with the Home Office conceding there has been an error,
and in statistical terms such cases may be recorded as
withdrawn. According to the House of Commons Library[22], typically “about
one quarter to one third of such [permission] applications
are granted.” Of those that go to a full hearing,
the Library suggests “There are no apparent trends in
the outcome of judicial review hearings. In some years
the majority of cases are successful, whereas in others most
cases are dismissed.”
While we
would not seek to defend some weak or time-wasting
applications that are made, the problem is of a scale and
nature that can be tackled by measures other than abolition
of the right of access to the courts. As David Heath MP
said in Standing Committee
‘It is indeed a novel
principle of dealing with an abuse of process by removing the
process rather than the abuse.’
7.
The supervision of the tribunal by itself
‘We
are concerned that the limited system of review proposed is
insufficient to guarantee that an appellant will receive a
just determination of his application’
Constitutional
Affairs Committee[23]
The
Government says the new AIT could provide adequate legal
safeguards because it will supervise itself without the
courts. At Report debate the minister even sought to
argue that the internal review was “independent” in
a legal sense[24]. This is all
muddled and dangerous thinking:
·
Instead of any appeal, there is the opportunity to apply to
the AIT itself for a limited review of its own
decision offends the basic principle of natural justice that
‘no one should be a judge in their own cause’.
This is a rotten foundation on which to build a new legal
institution.
·
The internal review occurs only once and is limited to
written grounds raised. Only exceptionally can there be oral
argument or evidence at the review. This clearly
inhibits justice. It will prevent review of important
issues that may have arisen late or have been overlooked. It
is of particular concern when many appellants are poorly
represented – a problem likely to be exacerbated by new
restrictions in legal aid.
·
The ability of the Tribunal to seek an opinion from the Court
of Appeal is clearly inadequate. It prevents the courts
from intervening in cases where the Tribunal is blind to its
own error.
·
The new Tribunal President will have unprecedented and
unchecked power to supervise his own law making.
·
The Government plans to call members of the new tribunal
“immigration judges”, as if this gives them more
authority to review themselves in isolation from the rest of
the legal system, and in the hope of blurring distinctions
between administrators (which they are) and the judiciary (which
they are not).
In the
new AIT speed is valued over justice and over getting the
result right. Without the courts supervising and making
law the new Tribunal will inevitably fail to safeguard the
human rights of refugees and immigrants. The law and
legal culture of the Tribunal will stagnate, cut off from the
mainstream courts.
8.
The value of judicial review of removal decisions
The amended
ouster of judicial reviews of Home Office removal decisions [subclause
7; new clause 108A (2)(e)] will exclude only a fraction of
current challenges to the Secretary of State. Yet
supervision of immigration service removals is vital –there
have been cases of fresh but compelling evidence being
ignored, of removal effected of the wrong person and to the
wrong country, and of removal in breach of an undertaking to
court. Without judges looking over their shoulder the
quality of Home Office decision-making in this vital area is
bound to fall still further.
‘We
are deeply concerned that the provisions of the new ouster
clause are intended to prevent the courts from reviewing any
deportation or removal decision; this may include cases
involving serious error, for example where the wrong person
has been identified for removal’
Constitutional
Affairs Committee[25]
9.
Constitutional crisis - the “nuclear option”
Several
leading lawyers and retired judges have expressed the view
that any legislation seeking to end the courts’ inherent
jurisdiction to enforce the rule of law would stand to be
struck down by the courts as unconstitutional.[26] The Lord
Chief Justice has spoken of the danger that the proposed
ouster clause “could bring the judiciary, the executive
and the legislature into conflict.” Such a battle
between two arms of the realm would be unprecedented in
modern times and potentially destabilising. The
government is toying with what has been called the “nuclear
option”.
10.
The innocent bystander – immigration appeals
The
proposals have been justified purely in terms of the need to
get to grips with the problem of abuse by asylum seekers.
But clause 14 affects all those subject to
immigration control, not just refugees.
It is proposed that, husbands, wives, sons and daughters
wishing to visit or join family in the UK will be barred from
using the courts to challenge the new Tribunal’s
decisions. These cases often raise important and complex
issues of the right to family life – a right enshrined
in article 8 of the European Convention of Human Rights.
Such issues demand court scrutiny just as asylum cases do
– yet access to the courts is to be denied without a
word of justification. Fixated on the high profile
politics of asylum, the government seems impervious to the
inevitable adverse consequences of the changes on race
relations.
11.
Who agrees with us?
The proposals
have been roundly criticised by three parliamentary
committees and leading judicial and legal figures and
academics. Many have voiced an expectation that the
House of Lords will reject the measure as unconstitutional
and disproportionate.
·
The Joint Committee on Human Rights: “The
Committee considers that it could be strongly argued that
there is a real danger that the ouster of judicial review of
tribunal decisions contemplated by clause 14 would violate
the rule of law and that the differences of legal authority
and seniority between the proposed Tribunal on the one hand
and the Court of Appeal and the House of Lords on the other
make it inappropriate to allow self-review by the Tribunal to
be the only way of correcting errors which affect Convention
rights or rights under the Refugee Convention.”[27]
·
House of Commons Constitutional Affairs Committee
– “We are deeply concerned that the provisions
of the new ouster clause are intended to prevent the courts
from reviewing any deportation or removal decision; this may
include cases involving serious error. ….An ouster
clause as extensive as the one suggested in the Bill is
without precedent. As a matter of constitutional
principle some form of higher judicial oversight of lower
Tribunals and executive decisions should be retained. This
is particularly true when life and liberty may be at stake[28].
·
The Home Affairs Committee: “the
real flaws in the system appear to be at the stage of initial
decision making, not that of appeal..” It
recommended that the appeals proposals “should not be
brought into force until the statistics show a clear
reduction in the number of successful appeals at first tier
adjudicator level.”[29]
·
The Council on Tribunals: “It is of
the highest constitutional importance that the lawfulness of
decisions of public authorities should be capable of being
tested in the courts. … In the Council’s
view it is entirely wrong that decisions of tribunals should
be immune from further legal challenge."[30]
·
Lord Woolf – the Lord Chief Justice:
“ Extensive consultation took place with myself and
other members of the judiciary before the Bill was introduced….Our
advice was that a clause of the nature now included in the
Bill was fundamentally in conflict with the rule of law and
should not be contemplated by any government if it had
respect for the rule of law.
“We advised
that the clause was unlikely to be effective and identified
why….In addition we argued that ouster was not necessary
and action could be taken which was more likely to be
effective than a clause of this nature. Importantly, we
pointed out that the danger of the proposed ouster clause was
that it could bring the judiciary, the executive and the
legislature into conflict. Apparently this was of
little concern.”[31]
·
Lord Mackay of Clashfern - former Lord Chancellor
“I just hope that Parliament is not prepared to say we
will prevent the ordinary courts of law from intervening to
protect claimants ... from, for example, breaches of natural
justice.”[32]
·
Sir Andrew Collins – High
Court judge and former Tribunal President:
“And do not forget that this jurisdiction can be life
and death. It is all very well to talk about the
problems of asylum and flooding in with bogus cases but the
fact is there are some genuine ones and, if you make a mista1ke,
you can be costing someone his life.”[33]
·
Professor Vernon Bogdanor of
Oxford University: “The clause….is
not to be condemned merely because it will promote
inefficiency. It is a constitutional outrage, and almost
unprecedented in peacetime.”[34]
·
David Pannick QC –
leading Government Barrister: “If
Clause 14 were to be enacted, the courts would decide on a
judicial review that that rule of law is a basic principle of
our constitution, access to the courts is vital to the rule
of law and even the legislature must abide by constitutional
norms…Parliament must respect the jurisdiction of the
courts to interpret the law.”[35]
·
Claire Curtis-Thomas MP – “We
will return after a year or so…. but we will not have
served those people [asylum appellants] well…They will
have been denied justice by an ineffective and inefficient
system that needs to be revised.”
·
Edward Garnier MP – “This is a
an unnecessary disproportionate and wholly irregular attack
on the rights of the citizens and non citizens who bring
themselves within the jurisdiction of our courts.”[37]
·
Humphrey Malins MP – “ [Clause 14]
has been described by one senior judge as a clause that would
“no doubt appeal to Mr Mugabe.”[38]
·
Annabelle Ewing MP – “The
clause places the tribunal above the law…our founding
constitutional principles should not be used as a plaything
of the Government”[40]
·
We would also refer you to the briefings and opinions of many
non-governmental and professional organisations with
expertise in this field who have been unanimous in their
opposition to clause 14. These - include the Bar
Council, the Law Societies of England and Wales and of
Scotland, Liberty, Justice, Amnesty International, Legal
Action Group, the British Institute for Human Rights, The
Children’s Society, the Refugee Council, the Refugee
Legal Centre and the Joint Council for the Welfare of
Immigrants.
Proper judicial oversight is vital in
this complex area of human rights law. Clause 14 is
fundamentally undemocratic, institutionalising second-class
legal treatment of refugees and immigrants. It is an
unprecedented and unconstitutional assault on the right of
access to justice.
About ILPA
President Ian Macdonald
QC
ILPA members are barristers,
solicitors and advocates practising in all aspects of
immigration and asylum. Academics, NGOs and others
working in this field are also members. The Association
exists to promote and improve the giving of advice on
immigration and asylum, through teaching, provision of high
quality resources and information. It represents
members on numerous government and Tribunal Stakeholder and
Advisory Groups.
ILPA has advised
parliamentarians of all parties on five immigration and
asylum acts in the last 10 years: drafting amendments,
briefing; sitting in the Advisors’ box – we are
busy people, but this matters to our clients: we know your
procedures, and we are happy to help.
ILPA can provide detailed
written briefings for those wishing to speak in debates, or
improve their own understanding of this field and experts to
speak to individual and groups of parliamentarians.
Please do not hesitate to
contact the ILPA office on 0207 251 8383 or 0207 490 1553 or
email billteam@ilpa.org.uk
Extract from
speech of Lord Steyn
Inner Temple Hall:
Wednesday, 3rd March 2004
The Home Office is attacking our democratic institutions on
both fronts. Consider what has happened in the last
couple of days in the United Kingdom. I am referring,
of course, to the Asylum and Immigration Bill. The Bill
completed its House of Commons stages on Monday this week (1
March) and was introduced into the House of Lords and given
its formal first reading this afternoon [3 March]. The
second reading debate in the Lords takes place on 15 March.
The question can be posed whether the implications of this
Bill and its potential consequences for our system of
government were fully appreciated in its passage through the
House of Commons.
The Bill aims to replace immigration adjudicators and
tribunals with a single tier appeal tribunal. In
isolation that may be unobjectionable. But the Bill
seeks in effect to oust the jurisdiction of ordinary courts
in all but limited cases, for example bad faith. It
will preclude judicial review on the ground of lack of
jurisdiction, irregularity, error of law, breach of natural
justice and any other matter. These are the very areas
in which the higher courts have repeatedly been called on to
assert the sovereignty of the law. The Bill attempts to
immunise manifest illegality. It is an astonishing
measure. It is contrary to the rule of law. It is
contrary to the constitutional principle on which our nation
is founded that Her Majesty’s courts must always be open
to all, citizens and foreigners alike, who seek just redress
of perceived wrongs.
It is a wholly disproportionate approach to the undoubted
abuses in the immigration system. Instead of addressing
those abuses the Bill by and large abolishes justice and due
process. If such legislation is effective in this
corner of the law - not even involving the endless war
against terrorism - what are the portents for our democracy?
Why should the Bill not serve as a model in other areas?
I am inclined to think that as a matter of interpretation the
language may be watertight….. The draftsman has
done an excellent technical job in carrying out the
outrageous instructions of the Home Office.
Does that mean that our courts are helpless to protect this
challenge to the structure of our democracy? If so, it
follows that Parliament could abolish judicial review of
abuse of executive power altogether, abolish the court
system, entrust decisions on guilt of criminal defendants to
civil servants, and so forth. This prompts fundamental
questions about the principle of the supremacy of Parliament.
Where does it come from? Not from the Monarch. Not from
the Treaty of Union with Scotland. But it must come
from somewhere. Henry VIII gave a clue. In 1542,
he declared that “we be informed by our judges, that we
at no time stand so highly in our estate royal, as in the
time of Parliament”, whose prerogative “is so great
(as our learned counsel informs us) as all acts and processes
coming out of any other inferior courts must for the time [being]
cease and give place to the highest”. Since then
the judges have on countless occasions described the
supremacy of parliament as the first principle of our
constitution. It is strongly arguable that the judges
created the principle. If that is so, the House of
Lords may have to consider whether judicial review is a
constitutional fundamental which even a sovereign Parliament
cannot abolish. The Home Office either acted in full
knowledge of a possible constitutional crisis or it was
extraordinarily naive in constitutional matters. But
you will not be surprised to hear me saying that I have not
heard all the arguments and that tonight I express no
concluded view on what the House of Lords may or may not do.
But I wonder whether British common sense may cause the
government to think again about tampering with our unwritten
constitution in such an unnecessary way.
[12] The current figures from the DCA, in a
letter to Marion Roe MP, the Chair of the Standing Committee,
dated 9.2.04, are for the 12 months up until 30 September
2003. In this period there were:
- 78,050
adjudicator asylum determinations;
- 33,304
applications to the IAT;
- 10,699
grants of leave to appeal by the IAT;
- 7,509
appeals determined by the Tribunal; including
- 1,096
appeals (14.6% of Tribunal determinations) allowed
outright by the Tribunal; and
- 3,318
cases (44.2% of Tribunal determinations) were
remitted by the Tribunal for reconsideration by an
adjudicator;
- 1,249
remitted cases (16.6% of Tribunal determinations)
were overturned on rehearing.
[33] Evidence to the Constitutional Affairs
Committee, 3rd February 2004.