Introduction

Much has been said about the incompatibility of provisions in the Illegal Migration Bill with the treaty-based rights of asylum seekers looking to secure Refugee status. Too little has been said about the way in which the Bill’s provisions interfere with the role of judges as the judicial branch of government.

The Bill’s provisions do far more than peg-back the rights of foreign nationals seeking refuge; a matter of substantive policy. Manifestly, they also breach the principle of the separation of powers in prohibiting judicial restraint of potentially unlawful Home Office conduct pending judicial review. They should be opposed by all regardless of political persuasion as they seek to free ministers from the constitutional business of having courts ensure that their conduct is lawful. Such innovation is contrary to the principle of the separation of powers; itself a part of the framework of the rule of law.

The Offending Clauses

At stake is the removal of the powers to stay removal under powers found in the common law and the Senior Courts Act 1981.

Clause 52 of the Bill ousts court jurisdiction in respect of interim remedies. It applies to any court proceedings (whether in the High Court, the Upper Tribunal, or elsewhere) relating to a decision to remove a person from the United Kingdom under the Act. Any power of the court to grant an interim remedy is restricted. The court may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person from the UK in pursuance of the decision. In one swift measure the courts are cut out of the picture and the Home Office is free to act without restraint. It is no good saying that a final (as opposed to interim) hearing may find unlawful conduct such the Secretary of State may be ordered to bring a person back, so that the courts still play a role. By then the damage may have been done, be it a breach of human rights or simply the psychological damage of being forcibly expelled from the UK having come here to seek protection. Interim remedies exist for a reason: they prevent unlawful conduct.

Clause 53 of the Bill applies where the European Court of Human Rights (ECtHR) indicates an interim measure in proceedings relating to the intended removal of a person from the UK under the Act. A minister (acting in person) may determine that the duty to remove a person (clause 2) does not apply to that person. However, if she does not so indicate, then a national court or tribunal may not have regard to the ECtHR’s interim measure when considering an application or appeal that relates to a decision to remove a person from the UK under the Act. Leaving aside the obvious difficulties that presents vis-à-vis acting unlawfully contrary to Article 34 of the European Convention on Human Rights (ECHR), this provision also ousts the jurisdiction of the courts, once again leaving the Home Office free to act without restraint.

There is no need for either clause. No evidence has been advanced of ‘abuse’ as opposed to ‘use’ of interim remedies and the occasional grant of interim relief. Further, judges have the institutional expertise to exercise their discretion to grant or refuse such relief, see for example the discussion in AR v Secretary of State [2011] EWCA Civ 857.

The Constitutional Principle of the Separation of Powers

The separation of powers identifies distinctly, the role the three branches of government: (1) Parliament has the function of making laws, and its legislative supremacy is recognised by the courts (R(Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 at §§40 and 41); (2) the government (executive) governs and administers within the bounds of the law; and (3) the courts decide questions of law. (Miller at §36), adjudicate upon disputes, ensure the law is obeyed, and ensure the government/executive keeps within the bound of the law. Given the particular functions of Parliament and government, where appropriate the courts exercise restraint. Correspondingly, the judicial function of deciding questions of law and the legality of government conduct is supposed to be inalienable. The Bill cuts away the role of the courts, stopping them ensuring that the government/executive keeps within the bound of the law before unlawful conduct occurs.

Who cares about the Separation of Powers?

The short answer is that the courts do care about the principle of the separation of powers and that MPs and Peers (as legislators) should care about it if they care about UK constitutional principles sufficiently to guard against their reduction.

As regards the courts, the separation of powers has been recognised as a fundamental constitutional principle, see Miller and also the Supreme Court case of Gilham v Ministry of Justice [2019] UKSC 44, 1 WLR 5905, per Lady Hale at §20. In particular, the lawfulness of legislative exclusion of the role of the courts has been considered by the courts in the line of cases on ‘ouster clauses’, see for example R(Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491. The question the legal effect of ouster clauses deserves discrete consideration but it is fair to say that the courts take a dim view of them.

As regards legislators, the principle of the separation of powers is of concern to them too, as a legal principle and, also, as a political one. Parliament may enjoy legislative supremacy but that is not a simple justification to overturn other principles that also underpin the rule of the law in democratic society that wants for a written constitution to protect the judicial role.

In reality, the role of the judiciary in ensuring the government/executive acts within the rule of law is even more critical than the brief mention of the separation of powers would suggest. In the UK, which enjoys a Parliamentary system of government, the executive and legislative functions fuse: the government arises out of its ability to conduct its business and obtain support in the House of Commons; something noted by Walter Bagehot (The English Constitution, 1867) and others in the 19th Century. As noted endlessly, this is different to a system such as that in the USA, where a written constitution separates out the three branches of government. Thus, in the UK the judiciary is the only check on government authority. Its role is thus enhanced even further and there is a corresponding need to protect it from bad legislation in the absence of an overarching written constitution doing the same work.

In the 2003-2004 Parliamentary session the then government was unable to secure its attempt, via the Asylum and Immigration (Treatment of Claimants, etc.) Bill, at a total ouster of the role of the courts to supervise the Asylum and Immigration Tribunal. Now its legislative assault is piecemeal; a chunk is being bitten out the courts’ exclusive role in determining the lawfulness of the government’s conduct. Nonetheless, the offending clauses are antithetical to UK constitutional tradition. What kind of government prevents judges from examining its own conduct? The obvious answer supplies a complete answer to the question of why these clauses should be omitted from the Bill.