Review, Revenge and Retreat

AuthorRichard Rawlings
Published date01 May 2005
Date01 May 2005
Rev ie w, Reve nge an d Ret re at
Richard Rawlings
The article deals with a wide-ranging legal and political con£ ict of considerable constitutional
signi¢cance, the attempt by UK ministers to restrict formal challenge of asylum decisions usi ng a
variety ofdevices and the ¢erce and partly successful opposition thatthis e ngendered. The article
examines the legal and administrativeroots of the controversy; the anatomy of the government’s
generalised counter-attack or‘revenge package’; the main juridical elements in the resulting pub -
lic furore; and the characterof the government’s eventual retreat.In so doing, it raises, and elabo-
rates on, a series of linked themes: the powerful dynamics of judicial review in this policy
domain; the historical sense of a gathering storm in relations between ministers and judges; the
practical interplay of rule of law arguments with developments in common law constitutional-
ism; and an expanded role for legal elements i n the political process.
One must be careful in a di⁄cult situation. . . that one does not increase the di⁄cul-
ties and destroy justice in the meantime.
Lord Mackay
In recent yearsasylum has not onlyemerged as a major ¢eld of legalcon£ict in the
domestic arena but has also been characterised by a growing backlash from min-
isters againststandard public lawtechniques for external controlof decision-mak-
At the 2003 Labour Party Conference, Tony Blair spoke of cutting back a
‘ludicrously complicated appeal process’ and of removing those who fail in their
claims‘without further judicial interference’.
Confrontedby a burgeoning ofasylum cases in courts andtribunals, which in
ministers’ eyes has been an unwarranted obstacle to the application of a ¢rm and
robust immigration control, the Prime Minister was in fact signalling a general-
ised and inter-linked counter-attack. Better to di¡erentiate the familiar use of
valedictory legislation to remove particular courtruli ngs, it is appropriate to speak
here ofa ‘revenge package’: one designed to pre-emptor drasticallyreduce a whole
activityof formal legalchallenge and by necessaryimplication to neuter the judi-
cial role in the constitution. The chosen vehicle was the government bill that
would eventually become the Asylum and Immigration (Treatment of Clai-
mants, etc) Act 2004.
Law Department, London School of Economics and Political Science. I would like to thank Julia
Black, Elspeth Guild, Carol Harlowand Robert Thomas for their valuable comments on a draft of
the article.The usual di sclaimerapplies.
1 HL Deb vol 659 col 67 15 March 2004.
2 The early evolution of ‘New Labour’s’policie so n asylumand related aspects is easily traced in the
successiveWhite Papers Faster,Fairerand Firmer^ A ModernApproachto Immigrationand Asylum (Cm
4018,1998)a nd Secure Borders,Safe Haven:Integration withDiversityin ModernBritain(Cm 5387,2002).
3 Tony Blair,speech to Labour Party Conference 30 September 2003.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(3)MLR 378^410
The package was madeup of three main policyprongs. Restriction of the sup-
ply of legal services was the ¢rst one, the classic administrative tactic of a squeeze
on funding. According to the Prime Minister, therewas a need to ‘derail’the law-
yers’ ‘gravy train’in asylum cases.
The second prongwas the reductionof the pre-
existing tribunal architecture by abolition of the Immigration AppealsTribunal
(IAT), so halving the formal rights of appeal for many asylum seekers. An extra-
ordinarily broad ouster clause was the third prong, an attempt at whole scale
exclusionof court jurisdictionin the vital matterof status determinationdecisions
in asylum (and immigration) cases. Since this would have taken national admin-
istrative lawback to the sleepydays of the 1950s, it was destined to be at the heart
of the ensuing legal and political con£ict.
The controversy itself would stretch across the full panoply of machinery for
legislative scru tiny at Westmins ter: from fraught debates in bot h chambers to a
series of critical reports from relevant select committees. Likewise, the voices
raised in protest ranged through the tangled web of specialist interest groups to
the‘good and great’ of the legal establishment.Whilethe courts were noti nvolved
directly, the senior judiciary was deeply and inextricably involved in the political
In the event, the post-war consensus concerningthe legal controlof the admin-
istration by the ordinary courts
has emerged from the political ¢res of asylum
strengthened. To this e¡ect, the constitutional signi¢cance of a legislative retreat
by ministers armed with a huge majority in the House of Commons cannot be
gainsaid.Close inspection of the battle¢eld will reveal however thatministers got
some of what they wanted.
Themes and structure of discussion
As an essay in contemporarylegal history, one that exploresthe roots, growth and
£owering of this remarkable a¡air, the article elaborates a series of linked themes.
The ¢rst one concerns the extraordinary developmenti n refugee lawand practice
of judicial review, both in quantitative and in qualitative terms. It is important to
explore the reasons for, or dynamics of, this expansion, so as to illuminate the
motivations for, and design of, the government’s counter-attack.
Ministers have spoken repeatedly of the ‘abuse’ of such formal legal machinery
for redress of grievance. On this view, a chief explanation is the tactical use of
judicial review (and of the tribunal process) with the idea of prevarication, so
promoting delayand disruption in the decision-making chain in individual cases.
Closer inspection, however, reveals many layers of explanation.
Policy and administration centred factors will thus be seen featuring strongly
in this article. Re£ecting and reinforcing the huge political salience of asylum in
recent years, the immediate background is oneof tightened substantive regulation
5 As famously promoted by the Franks Committee on Tribunals and Inquir ies, Cmnd 218,1957:
also,Tribunals and Inquiries Act 1958, especially s 11 (general anti-ouster clause).
Richard Rawlings
379rThe Modern LawReview Limited 2005
on many fronts, as represented in successive waves of legislation,
together wi th
exceptional pressures put on the decision-making process by greatly increased
numbers of applicants.
The doctrin al development in judici al reviewover a couple of generations a lso
commands attention, typi¢ed by the goal of humane administration and featur-
ing proper process and rational decision-making and the expanding idea of
‘rights as trumps’.
Far from the idea of the judiciary as wholly reactive or as pas-
sive recipients of complaints, asylum may thus be seen as exemplifying the crea-
tive expansion of ‘pegs’ at common law on which cases may be hung. Again,
asylum will be seen as a major ¢eld for the contemporary practice of ‘pressure
through law’ ^ the long-established Anglo-American tradition of campaigning
^ in part with a view to global jurisprudential development.
The historicalsense of a gathering stormin relations between the executive and
judicial branches in the national constitution
is the second main theme of the
article. The scale of the counter-attack by ministers on the use of formal legal
technique on behalf of applicants, and so on the capacity of the courts to sustain
an activist form of judicial review, speaks volumes. More particularly, the legal
and political con£ict concerningthe ouster clause should be read against the back-
drop of constitutional disputation and uncertainty associated with the moves to
abolish the o⁄ce of Lord Chancellor and to establish a Supreme Court. What
price judicial independence ^ which the government was claiming to secure in
the Constitutional Reform bill
^ if the courts are unable to act?
The interplay in opposi tion to the ouster between arguments grounded i n a
traditional British conception of the rule of law and those premised on the rise
of common law constitutionalism or increasing articulation of constitutional
principles and fu ndamental rights as implicit in our unwritten arrangements is
the third main theme. Ministers would thus ¢nd themselves confronted in the
legal and political controversy by a powerful combination of ideas.
The development of the concept of common law constitutionalism is one that
has provoked a profound and ongoing theoretical debate.
It is given a hard prac-
tical edge in the context of the ouster. On the one hand, as a manifestation of
rights based theory designed to ¢t the UK political environment, this newthink-
ing clearly is antithetical to the classic English model of judicial review as
6 Asylum and Immigration AppealsAct 1993, Asylum and Immigration Act1996,Immigration and
Asylum Act 1999, Nationality, Immigration and Asylum Act 2002, and now the Asylum and
Immigration (Treatment of Claimants, etc) Act 2004.
7 C. Harlow and R. Rawlings, Lawand Administration (London: Butterworths, 2
ed,1997) ch 4.
8 C. Harlow and R. Rawlings, Pressure through Law (London: Routledge,1992).
9 A familiar theme in contemporary UK public lawa nd moreparticularly in criminal justice policy
and administration: see for a typically magisterial study, R. Stevens,The E nglishJud ges (Oxford:
Hart, 5
ed, 2002).
10 Constitutional ReformBil l,clause 1. And see, A.Le Sueur,‘Judicial Poweri nthe Cha nging Con-
stitution’i nJ. Jowell and D. Oliver (eds),The ChangingConstitution (Oxford: Oxford University
Press, 2004).
11 As i n Sir John Laws,‘Lawand Democracy’ [1995] PublicLaw 72 and J. Gri⁄th,‘The Common Law
and the Political Constitution’(2001) 117LQR 42. This is not the place to rehearse the arguments
at length: see for an overview,T. Poole,‘Backto the Future? Unearthing the Theoryof Common
Law Constitutionalism’(2003) 23 OJLS 435.
Review, Revenge and Retreat
380 rThe Modern LawReview Limited 2005

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