ALIENS AND ADMINISTRATIVE JUSTICE: THE DUTSCHKE CASE1
| Date | 01 September 1971 |
| Author | B. A. Hepple |
| Published date | 01 September 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02345.x |
ALIENS
AND
ADMINISTRATIVE JUSTICE
:
THE
DUTSCHKE CASE
THE
procedure under which
Mr.
Rudi Dutschke unsuccessfully
challenged the Home Secretary’s refusal to allow him to stay in the
United Kingdom as
a
research student
at
Cambridge
is
now simply
an historical curiosity.2 Yet few events have done more than his
appeal to expose the critical weaknesses in the post-Franks world
of
administrative justice.
It
has been said that the immigrant earns
our
attention
“
as the focus for the Condition of England question
for
this generation.” Appropriately, then,
it
is an ailing foreign
revolutionary student whose case has done most to bring into debate
the liberal constitutional values upon which recent administrative
law developments have been staked.
The aim of this article is
to
provide an anatomy of the
Dutschke
case and by
so
doing .to raise an agenda
for
the discussion of the
fundamental issues which will not be eliminated by the abolition of
a
statutory immigration appeals system in political and security
cases. First, there
is
the con0ict between the principles
of
natural
justice and the executive’s assertion of claims to confidentiality
on
grounds of
cc
national security.” One cannot fail to be struck by
the paradox of a
‘(
Star Chamber
in
the Strand
”
(as one com-
mentator described the unilateral Immigration Appeal Tribunal
proceedings in Thanet House) in the same historical period
in
Immigration Appeals Tribunal, Appeal
No.
TH
381/70 (London, December
1970),
A.
W.
R.
Dutschke (Appellant) and the Secretary
of
State
for
the Home
Department (Respondent). References to thie case in the footnotea are to pages
in the
official
Trmsoript and in the Determination and Reasons, as yet
unpublished.
The special appeals procedure
for
security and political cases established by
the Immigration Appeals Act 1969,
a.
9 and the Aliens (Appwls) Order 1970
(S.I.
1970
No.
151), art. 8, will be abolhhed when the Immigration Bill 1971
comes into force. (The 1%9 Act wa.a noted by the present writer
in
(1969)
32
M.L.R.
663
md is discussed by
I.
A. Macdonald,
Race
Relations
and
Zmmigra-
tioit
Law
(London, 1969), peras.
210-260.)
The
first draft of the 1971 Bill did
not provide for
any
form of appeal against decisions taken peraomlly by the
Home Secret!fy on the ground that the entr
or
continued peaence here
of
a
was
not conducive
to
the puglic good. During the committee
st;g;e
in the Coy,mons, the Government conceded that it would be right
to
allow
a
non-patrial already in this country an ap a1 in such oases. Neverthe-
less,
security and oliticai
oasea
would be exclugd from th: statukq appeal:
procedure, althougg
a
hearing rn!Fht be allowed before the three
wise
men
(used, until now, in civil aervice purge8
”)
in these caws. See below,
p.
609,
on the natural justice aspects of the latter procedure.
N.
Deakin in
E.
J.
B.
Rose
et
al., Colour
and
Citizenship
(London, 1969),
p.
33.
Alan Watkins,
New
Statesman,
Vol.
80,
p.
854
(December
25,
1970)
and
see
too his later comments,
ibid.
Vol. 81, p.
67
(January
15,
1971) and
p.
111
(Janunry
22,
1971). It waa Mr. Watkins
who
suggested the description
of
these
as
unilateral
proceedings. In its Determination the Tribunal refers
to
non-pet.rial
501
502
THE
MODERN
LAW
REVIEW
VOL.
34
which the Royal Courts of Justice, on
the
other side of the Strand,
are developing their expansive notions of openness, fairness and
impartial it^.^
Yet even the courts have been hesitant to accord
rightless aliens the opportunity
to
be heard
6;
and the United
Kingdom Parliament is not alone in the world in believing that
security and the procedural safeguards afforded by the
audi
alterum
partem
rule are incompatible.'
Secondly, there is the conflict between unfettered administra-
tive discretion and the attempt to structure the exercise of that
discretion by means of rules. The authors of the immigration
appeals system, the Wilson Committee, saw as their objective
"
not
only to check any possible abuse of executive power but also to give
a private individual
a
sense of protection against oppression and
injustice, and of confidence in his dealings with the administrs-
tion." The Immigration Appeals Tribunal, however, failed
to
begin
a
case law of rules of fair administrative practice and left
Mr.
Dutschke with the impression that he had been the victim
of
a
sudden change of Government.
Thirdly, there is the conflict about the proper scope of the
concept
of
"
justiciability." Are the issues
of
policy inherent i.n
the notion of
"
undesirability "-the basis
of
the Home Secretary's
decision to exclude
Mr.
Dutschke-appropriate for a trial-type
hearing?
lo
Could the defects
of
the political process in controlling
the
"
evidence
in camera."
This is plainly inappropriate: "A trial is said to
take
1~
in
camera
when
it
is heard privately, the pub!,ic being altogethsr
exclufed
:
Jowitt's Dictiona~y of Engliih Law,
p.
301;
used in the Lalm
law proceedings for the Judge's chamber
8
See S.
A. de Smith,
Judicial Review of Administrative Action
('2nd
ed.,
London,
1968), pp. 154
et seq.
for
an
account
of
this revival.
6
Schmidt
v.
Secretary of State f?,r
Hoy,
Affairs
[!?9] 2
Ch.
149 (C.A.) oq,the
ground thrut an alien has
no
right and
no
legitimate expectation
of
being allowed to stay
:
see comment by
D.
G.
T.
Willirtma in [1969] A.S.C.L.
132-133;
J.
A.
Hopkins -[1970] C.L.J.
9.
This owe indicates that
Ridge
v.
Baldwin
[1964] A.C. 40
bas
had
no
effeot
on
the line
of
earlier
crcsea
such
as
R.
v.
Leman Street Police
Station
Inspector,
ez
p.
Venicofl
[19u)]
3
K.B.
?'!I.
and
R.
v.
Governor of Brixton Prison, ex
p.
Soblen
f19631 2
Q.B.
243; but
af.
Re
H.
K.
(an
infant)
[1967]
2
Q.B.
617.
7
Under the
U.S.
Immigration and Nationality Act (the McCarran-Walter Act)
8
U.S.C.A., para.
1%.
the Attorney-General may deny certain clmes
Ef
alien
a
hearing by certifying thah
the
disclosure
of
confidential information would
be prejudicial to the public interest, safety or security." Changing judicial
attitudes
to
parliamentary attempts
to
exolude natural justice
on
grounds
of
security &re well illustrated by
rt
comparison
of
two
South
African cases
:
E.
~r.
Ngwevela,
1954
(1)
S.A.
123
(A.D.)
and
South African Defence
and
Aid
Fund
17.
Minister of Justice,
1967 (1)
S.A.
263 (A.D.),
H.
Street
(1967)
84
S.A.L.J.
385;
generally,
see
de Smith,
op.
cit.,
pp. 172-176.
8
Report
of
the Committee
on
Immigmtion Appls, Cmnd. 3387 (1967), para.
815
(noted by the present wriher in (1968)
31
M.L.R. 310).
9
Compare,
e.g.,
Geoffrey Marshall in
Oxford
Essays
in
Jurisprudence
(ed. A.
Gr.
Guest), Chap. 10;
Lon.
L.
Fuller,
The Morality of the Law,
pp.
46-47,
170-
172; Robert
S.
Summers
in
(19G3)
2G
M.L.R.
630;
and
W.
A. Robson,
Justice
mid Administmtive Law,
(3rd ed., London, 1951), Chaps. 1,
2,
6.
10
The distinotion between these and argument-type hearinga
ie
drawn by
K.
C!.
Davis in his venous writings, esp.
Administrative Law Treatise,
parael.
6.01-6.12.
:
Oxford Enghsh Dictionary.
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