NEXT Monday, the House of Commons will consider a Government proposal whose discreditable origins, lack of rational purpose and contempt for inconvenient aspects of the rule of law would embarrass even Robert Mugabe. Clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill will prevent the courts from considering a legal challenge to a decision of an immigration tribunal. If such an extraordinary provision were to be approved by the legislature, the judiciary may well decide that there are limits to the powers of Parliament to breach basic principles of our constitution.

Last year David Blunkett, the Home Secretary, complained that he was “personally fed up” with judges overturning his decisions in asylum cases. Lord Irvine of Lairg, the Lord Chancellor, was unsympathetic, pointing out that “maturity requires that, when you get a decision that favours you, you do not clap. And when you get one that goes against you, you don’t boo”. But he was sacked soon afterwards. Lord Woolf of Barnes, the Lord Chief Justice, diplomatically told Parliament in response to Mr Blunkett’s complaints that “unfortunately there are times when the judiciary are left with the impression that their efforts are neither appreciated nor welcomed”. Clause 11 demonstrates that the impression is an accurate one.

The Bill will replace immigration adjudicators and tribunals with a single-tier appeal tribunal. But that reform (which may have merit) is supplemented by a series of provisions that will make the appeal tribunal both the first and, in almost all cases, the last legal refuge for the immigrant, since “no court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal”. The Bill states that courts may not intervene even if there is an error of law, unfair procedure, lack of jurisdiction or a breach of human rights.

There is a serious problem of immigration control. Claims take far too long to be decided, and tribunals and courts are overwhelmed with appeals, many of them hopeless. But the answer is to make the procedures more efficient, not to abolish judicial control. As David Heath, MP, pointed out for the Liberal Democrats during the committee stage debate on January 20: “It is indeed a novel principle of dealing with an abuse of process by removing the process rather than the abuse.”

Clause 11 will have disastrous effects. At present, many cases are wrongly decided by adjudicators and the tribunal and are corrected by the courts. Some of those errors concern matters of considerable gravity, for example whether an appellant is at risk of persecution or torture if returned abroad. The overturned decisions may raise issues of legal principle the rulings on which establish the standards to be applied by the tribunal in all other similar cases. The absence of judicial supervision will inevitably lower standards in the tribunal’s performance of its functions. The exclusion of judicial control will mean that aggrieved persons will need to complain to the European Court of Human Rights in Strasbourg, frustrating the objective of the Human Rights Act 1998 to ensure a domestic remedy.

For centuries the judiciary has recognised that access to the higher courts is a vital element of the rule of law. So in 1957 Lord Justice Denning stated on behalf of the Court of Appeal that, “if tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end”. In one of the leading textbooks on administrative law, Sir William Wade and Professor Christopher Forsyth observe that such decisions show that “ judicial review is a constitutional fundamental which even the sovereign Parliament cannot abolish” and that an attempt to do so would be “an abuse of legislative power”. In a 1995 law review article Lord Woolf of Barnes commented that “if Parliament did the unthinkable”, and sought to prevent access to the courts, the judiciary should rule that there are “limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold”.

Parliament should take note that, if Clause 11 were to be enacted, the courts would decide on a judicial review that the 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. Just as the courts respect the sovereignty of Parliament to make the law, so Parliament must respect the jurisdiction of the courts to interpret the law.

It would be a radical step in the development of our unwritten constitution for the courts to make such a ruling. But it would be the result of radical legislation that seeks to undermine the consensus on which our legal system is based. As Lord Justice Steyn pointed out in a 1992 Court of Appeal decision: “In the developing field of judicial review, it is usually unwise to say ‘never’.”

The author is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford

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