The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.
This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.
Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.
Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.
Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May.
However, Article 8 adds at 8(2) that the state may interfere with family life if such interference “is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. It has been up to judges to balance the two parts of Article 8 to establish the reasonableness, or according to the preferred European approach, the “proportionality” of the government’s action in the light of Article 8(2). It is this balancing discretion that the new guidance takes away.
Thus May’s Statement of Intent on Family Migration explaining the new Immigration Rules says at paragraph 7:
“The new Rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals.”
So all issues of proportionality will now be pre-defined by the Government and included within the immigration regulations which are then passed by members of Parliament – a strange and dubious halfway house between issuing a Government order and passing a statute.
Apparently judges have been crying out for such guidance on Parliament’s view. They have been unable to “give due weight systematically to the Government’s and Parliament’s view of where the balance should be struck, because they do not know what that view is”.
Paragraph 38 of the May explanation explains: “The new Immigration Rules are intended to fill this public policy vacuum by setting out the Secretary of State’s position on proportionality and to meet the democratic deficit by seeking Parliament’s agreement to her policy. The rules will state how the balance should be struck between the public interest and individual rights, taking into account relevant case law, and thereby provide for a consistent and fair decision-making process.”
Judges will get a Nutshells* view of immigration law and apply the tick box list of matters that define proportionality, sanctioned by Parliament, on a case by case basis. The option of declaring one of the rules unlawful will have been abolished – or so the May argument goes.
Comment: The will of Parliament or of Government?
One might have assumed that judges already knew all this law – and if they do not, then the barristers on either side of any deportation case should be able to bring it to their attention. But the issuing of the new Authorised Version requires a rethink about the role of judges in relation to the Government of the day and in particular to the “will of Parliament”.
The implication is that the judiciary will, in immigration issues, become the Government’s judges, ensuring the adherence of all agencies to government policy, rather than the institution that holds the Government to account according to the principle of the rule of law.
The justification for this position is that there are, and have always been, areas where judges should stand back and allow the (democratically elected) Government its head. Judicial “deference” is accordingly extended to the Government in the protection of the nation’s crucial interests.
These areas in the past have been encompassed by the notion of Royal Prerogative – powers that the Crown exercises for the common weal – internal and external defence for example but also regulating major economic interests. As it happens, these matters are also included in Article 8(2) of the ECHR: “national security, public safety or the economic well-being of the country” etc.
Control of the nation’s borders is generally accepted as one of these overriding duties/powers and the Government’s argument is that it should therefore be accorded due judicial deference.
Thus May’s statement at paragraph 40: “Although Parliament’s view is subject to review by the Courts, it should be accorded the deference due to a democratic legislature. If proportionality has already been demonstrated at a general level [ie in the Rules], it need not, and should not, be re-determined in every individual case.”
‘The giving of weight to factors such as these [public order or safety] is not aptly described as ‘deference’: it is performance of the ordinary judicial task of weighing up the competing considerations on each side … That is how any rational judicial decision-maker is likely to proceed’ House of Lords in Huang
May’s statement points us to the case of Huang v Secretary of State for the Home Office (2007) where some of these matters are considered in passing.
The statement notes that the House of Lords in that case contrasted housing law, oft revised and debated in Parliament “over very many years”, with immigration law and its rules “which are not the product of active debate in Parliament” (since they are issued by Governments). May’s implication is that the Lords in Huang were suggesting that the rules should indeed receive the imprimatur of Parliament and that this is what she is now ensuring.
But she has quoted their Lordships out of context. In context it runs thus: “[T]he outcome [in housing law], changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented” (emphasis added).
Far from endorsement of May’s position, this points up a significant problem in the new “democratic” approach. May is seeking to recruit judges to her side against non-nationals. That leaves the non-nationals adrift with no representatives in Parliament and a much reduced chance of support on the bench. Nor can the fact that her new Rules have been thrust briefly before Parliamentarians’ noses be seen as making them a “considered democratic compromise” or “the product of active debate in Parliament”.
Furthermore the Lords in Huang reject the deference argument, saying:
“The giving of weight to factors such as these [ie to the Home Secretary's view on threat to public order or safety] is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.”
The Lords therefore agreed with the view that, in Mrs Huang’s case, the Immigration Appeal Tribunal “adopted a review approach incorrectly based on deference to the Secretary of State’s view of proportionality”.The Tribunal deferred to the Government instead of properly weighing the balancing issues.
None of this gives support to May’s view that judges are demanding guidance on the Government’s interpretation of public interest so that they can simply defer to it. Rather, the Lords asserted their right to independently come to a view of the balancing factors between the right of the individual deportee and the public interest.
Why can this be seen as an assault on the rule of law? Broadly because if the Government extends the areas of law in which it requires judicial deference and uses ad hoc votes in Parliament to assert the Government’s position, then it reduces the areas in which the courts can hold the executive to account.
May has produced a spurious means of requiring judicial deference for executive behaviour – passing it through Parliament and defying the judges to challenge what has been “democratically” sanctioned. If they don’t toe the line, she has threatened them with legislation, which they will be obliged to conform with.
Mrs May presumably believes that the Government telling judges what to do is more democratic than independent judges overseeing Government. She is wrong.
See also: Theresa May’s meaningless statement on the bizarre Commons debate she ordered to offer Parliamentary guidance to judges
*Other undergraduate law crib imprints do exist and are available in all good bookshops.
Note: Since this post, the Lords Secondary Legislation Scrutiny Committee has issued a report (4 July 2012) expressing concerns about May’s procedure in passing her rules through Parliament, reported here
The implications of May’s statement are examined by Adam Wagner here
ObiterJ also looks at the issue here
Note: whatever deference May seeks from courts, she herself offers little back – in fact she has been found in contempt of court in a little reported judgment
Those concerned about how the Government is curbing judicial powers might be interested in these items:
Extracts from Theresa May’s Statement:
• Only in exceptional circumstances will family life, the best interests of a child (even though always a primary consideration) or private life outweigh criminality and the public interest in seeing the foreign national criminal deported where they have received a custodial sentence of at least four years.
• Deportation will normally be proportionate where the foreign national criminal has received a custodial sentence of at least 12 months and less than four years, or has received a custodial sentence of less than 12 months and, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law. Deportation will not be proportionate if:
- they have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here with valid leave continuously for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or
- they have a genuine and subsisting parental relationship with a British citizen child or a child who has lived in the UK for at least the last seven years, and it would be not be reasonable to expect the child to leave the UK with the foreign national criminal and there is no other family member who is able to care for the child in the UK; or
- they have been continuously resident in the UK for at least the last 20 years (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin, or they are aged under 25 years and have spent at least half of their life residing continuously in the UK (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin.