Legislative language and judicial politics: The effects of changing parliamentary language on UK immigration disputes
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| DOI | 10.1177/1369148117705272 |
| Subject Matter | Articles |
https://doi.org/10.1177/1369148117705272
The British Journal of Politics and
International Relations
2017, Vol. 19(3) 592 –608
© The Author(s) 2017
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DOI: 10.1177/1369148117705272
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Legislative language and judicial
politics: The effects of changing
parliamentary language on UK
immigration disputes
Matthew Williams
Abstract
Why does the British government increasingly lose immigration cases in court? More broadly, what
can explain the changing behaviour of appeal court judges? It is because government powers to
manage immigration, delegated by Parliament, are increasingly couched in indeterminate language.
Indeterminacy in legislation not only allows for executive discretion but also encourages litigation.
Parliament has therefore provided the cause of action, and judges are not being ‘activist’. This
argument revitalises, with nuance, the legal model of judicial behaviour. New evidence supports
the claim, with discourse analysis of all 1233 sections of immigration legislation enacted from 1905
to 2016 showing an increase in indeterminacy. Logit regression modelling of 252 immigration
appeal cases between 1970 and 2012 shows that changes to language and the administration of the
law can explain the outcome in 73% of cases.
Keywords
immigration, judicial politics, language, law, UK Parliament
Why does the British government increasingly lose immigration cases in court? More
broadly, what can explain the changing behaviour of appeal court judges? In 25 years,
from 1970 to the end of 1994, the government contested 78 immigration cases at a senior
appeal court and took 25 defeats. These were cases brought to the Court of Appeal and the
House of Lords (now the UK Supreme Court). In just the 17 succeeding years, up to 2012,
there were 174 appeal cases and 90 government defeats. The increased number and pro-
portion of anti-government rulings is not simply a function of increased immigration, nor
the result of new judicial powers in the Human Rights Act (HRA) 1998. Increasingly
indeterminate language used in immigration legislation is the key to understanding the
changing behaviour of judges. Indeterminate legislation omits information on the con-
tent, scope and timing of government power. This omission makes policy adaptable and
less inhibited by tight ‘policy windows’ (Kingdon, 1995). But indeterminate legislation is
Jesus College, University of Oxford, Oxford, UK
Corresponding author:
Matthew Williams, Jesus College, University of Oxford, Turl Street, Oxford, OX1 3DW, UK.
Email: matthew.williams@jesus.ox.ac.uk
705272BPI0010.1177/1369148117705272The British Journal of Politics and International RelationsWilliams
research-article2017
Article
Williams 593
also an ‘incomplete contract’ and open to contestation. While all law considered on appeal
will be, to a degree, indeterminate (Dyevre, 2010: 311–314), it is law that omits and does
not simply elide key information that creates the demand for and the supply of judicial
intervention.
Studies of judicial politics gravitate around the concept of ‘judicialisation’. This term
describes ‘the expansion of the province of courts or the judges at the expense of the
politicians and of the administrators’ (Tate and Vallinder, 1995: 13). This article aims to
revitalise, with nuance, the unfashionable legal model (Dahl, 1957; Edwards, 1984; Levi,
1948; Merryman, 1981). A legal model of judicialisation predicts that the expansion of
the province of the courts will be led by changes to the law rather than by the changing
preferences of the judges, as is predicted by alternative attitudinal (Gibson, 1978;
Schubert, 1965; Segal and Spaeth, 2002; Sisk et al., 1998) and strategic models (Carrubba
et al., 2008; Epstein and Knight, 1998; Eskridge and Ferejohn, 1992; Garrett et al., 1998;
North and Weingast, 1989). It is axiomatic to these attitudinal and strategic models that
judges have policy preferences that will affect their decisions. It is an axiom that I accept,
but with the caveat that judges are tightly constrained by institutions, and specifically by
the medium through which they and other institutions communicate. If the language of
the law is merely ambiguous, it will provide an opportunity for judicialisation, but not on
any sustained basis. Given the power of precedent, an authoritative interpretation of an
ambiguous concept at time t will delimit alternative interpretations at t + 1. If, however,
the language is not ambiguous but rather indeterminate, then it is incomplete. The lan-
guage lacks a ‘logic of communication’. There are omissions of information needed to
connect policy ideas to their practical implementation. My nuance to the legal theory is
therefore to add the insights of Vivien Schmidt’s ‘discursive institutionalism’ (Schmidt,
2008). Furthermore, I submit that contests over indeterminate law will typically be
resolved in favour of the weaker party—the immigrant in these cases. This result may be
partly in accordance with the judges’ personal preferences, and it also relies on principles
of natural justice that the government should not be a judge in their own cause by deter-
mining the extent of their own powers.
The reason for pursuing this adapted legal model is in part dissatisfaction with the
predictive power of attitudinal models in the United Kingdom, as ably demonstrated by
Chris Hanretty (Hanretty, 2013). And there are few opportunities for British judges to act
strategically. Lacking higher constitutional law, judges in the United Kingdom are subser-
vient to Parliament. More broadly, there is a need to develop approaches for observing
inter-institutional discourses and modelling their effects on judges’ behaviour (Hönnige,
2011). Attempts at a general theory of judicial politics are proving increasingly fruitful
(Dyevre, 2010), but it is necessary for political scientists to take seriously the claims
made by judges and legal scholars that the law does, in fact, dominate the thinking and
behaviour of judges.
The empirical focus on UK immigration law is justified on three counts. First, suspicion
that judges illegitimately interfere with immigration policy is widespread but misplaced.
Second, there is a large and diverse dataset of immigration cases to analyse. Third, framing
the debate on UK immigration law does not constrain the wider interest of the research. All
UK legislation has become increasingly indeterminate, not just that pertaining to immigra-
tion (Williams, 2016, 2017). Furthermore, comparative politics and public debate will both
benefit from consideration of the legal language as an important variable.
Two methods have been used to test this new legal theory. First, to demonstrate the
increasing indeterminacy of immigration legislation, all 1233 sections of immigration
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