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Pick-and-mix justice

8 March 2004

Lord Woolf was right, last week, in his speech in Cambridge, to link the government's constitutional reform plans to the iniquitous clause 11 of the Asylum and Immigration Bill now going through parliament. If they pass un-amended the reform plans can only encourage an authoritarian tendency in the government that the asylum bill plainly reveals.

The rumpus that blew up following the speech provoked some curious responses from voices on both sides of the issue. Two points from the speech dominated the headlines. The first was the criticism of the government's plans for the creation of a supreme court; the second was the attack on the controversial asylum and immigration bill, specifically the clause which denies asylum seekers access to the courts in pursuit of their claims.

The thrust of the speech concerned the care that is required in altering the subtle relationship between the judiciary on the one hand and the executive and the legislature on the other. Lord Woolf points out that the arrangements that existed prior to the creation of the Department for Constitutional Affairs last June reflected a balance between separation and non-separation of powers that evolved over hundreds of years as the necessary consequence of operating within an unwritten constitution. The headlines did not convey this argument, and it is worth reading the speech in full for this reason here.

The central point is that if an unwritten constitution is to work the judiciary and the government need to understand one another. The Lord Chancellor, with one clearly labelled (and elegantly shod) foot on each of these two branches, performed the essential rôle of representing each to the other while embodying in his office the constitutional settlement that kept the two branches distinct. The idea that a figure straddling a divide is necessary for maintaining the divide is not a bizarre leap of faith in the context of constitutional arrangements which, because they are unwritten, are something of a leap of faith in themselves. The capacity of the Lord Chancellor to balance the competing aspects of his rôle was the daily test and evidence of the constitution's own capacity to perform this feat. What is more, the physical presence of the senior judiciary in the House of Lords provided an important link between those responsible for creating laws and those responsible for interpreting and enforcing them.

The abolition of the Lord Chancellorship and the detachment of the highest court of appeal from the House of Lords, leaves the courts, and therefore the law generally, strangely unanchored, bobbing about while looking literally and metaphorically for a new home. The independence of the judiciary is called into question by this state of affairs, not because of any risk of subornation but because in its detached state it is simply not as relevant as it was before. The proposed supreme court is, as Lord Wolff intimated, a second class specimen because it will not have the power to strike down unconstitutional laws. This limitation was less troubling when the judiciary formed an influential part of the legislature in which the laws were enacted.

What is being created here is judiciary-as-service-provider; an organisation set up, like the Highways Agency or the NHS, to provide whatever services the government decides that it should provide to the population at large. The questionable stature of the Department for Constitutional Affairs, at risk at any moment of being popped into the back pocket of the Home Office, also points in this direction. The likelihood of the courts being able to challenge as effectively the government itself under the new arrangement is remote.

AS if to illustrate the point, up jumps clause 11 of the proposed asylum and immigration legislation, which, among other things, creates a new Asylum and Immigration Tribunal. Clause 11 states (at paragraph 7):

No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal.

Subsequent paragraphs are at pains to emphasise the near-comprehensive extent of this prohibition. In this way are the courts excluded from their normal, independent, rôle. They have no independence because, in this government-selected context, they have no standing at all. With the new tribunal conceived of as a complete solution to asylum appeals, the courts as simply unnecessary. The question is, unnecessary to whom? Unnecessary, clearly, to the government in the administration of a just asylum appeals procedure, but not, perhaps, unnecessary to the failed asylum applicant whose interests the tribunal may have failed to protect. It is a pick and mix approach to justice that offended the barons who exacted Magna Carta from King John, and still offends today.

The political fallout from Lord Woolf's speech is still, at the time of writing, in its early stages. Meanwhile, confusion reigns. Alan Duncan, the Conservative constitutional affairs spokesman, attacked the government by defended the prior constitutional arrangements, which, he told The Guardian, are "offensive to tidy-minded liberal lefties who want all political theory to fit into neat boxes". Meanwhile, a Home Office spokesman is reported to have said: "We respect the views of the Lord Chief Justice, but ...if we had been cowed by previous criticisms, we would never have halved asylum claims or got life meaning life for murderers." Taking these analyses in combination, it appears that Mr Duncan's "tidy-minded liberal lefties" and the people who want to "halve asylum claims and get life meaning life" are the same lot.

This does not seem likely. The draconian (and futile) measures of which the Home Office is boasting do not sound like liberal lefty objectives. "Halving asylum claims" means preventing people from approaching the country who might well be entitled to its protection. "Getting life to mean life" means locking people away without hope or rehabilitation even past the point a which there is any likelihood they will re-offend. If the promoters of these policies are the ones behind the constitutional reform programme, there can be little reason to suppose that they are intended to further a specifically freedom-loving or left-wing agenda. What they represent is a authoritarian approach which can be used as easily to further right-wing as left-wing causes.

Mr Duncan's defence of the constitutional status quo ante is, similarly, far from being a right-wing prerogative. It is not as if Lord Chief Justice himself is right-wing or even especially traditionalist in his views. In other words, people with different political viewpoints can abhor the proposed reforms as failing to achieve a robust constitutional arrangement irrespective of whether they do so from a traditionalist or progressive perspective. There is, as Lord Woolf implies, no overwhelming argument for saying that the prior arrangements have or have not had their day other than the quality of what is proposed to be put in their place.

In relation to the Lord Chancellorship, Lord Woolf was tactful enough in his speech to concede that what has been proposed is - just about - acceptable. In relation to the proposed supreme court and the infamous clause 11 his lordship's implication is that these measures are politically opportunistic and damaging to the rule of law. And this, really, is the question: does a government come into office simply to achieve its self-appointed programme, while brushing inconvenient obstacles out of its path? Or does it hold to some higher trust, to nurture and sustain a system which, by virtue of its checks and balances, will make the task of a strong-willed government more difficult but more enduring?