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944   9 March 2004  

Abandoning Judicial Review

I owe you an insider’s explanation of the current Big Spat in relation to the Asylum Appeal system.  Let me put on my wig, and preach a little.  For even excellent people like Robin Cook have joined in the Government’s ill-informed baying against the Judiciary.  Robin Cook said that the asylum changes were merely cosmetic, because Judicial Review meant an appeal only on points of law, and that would be possible within the Asylum Appeal system anyway – with a High Court Judge presiding at the senior Immigration Tribunal.  He pooh-poohed the Judges’ opposition. 

  • He was wrong, and I should explain why. 

As the world of administrative agencies has mushroomed  the principles of judicial review have also been developed to manage the change.  Those principles hold that, however specialised an administrative tribunal or civil servant may be, the decisions made are always subject to the overall discipline of the ordinary Courts.  This is a fundamental dimension of the rule of law.

That does not mean that Judges are allowed to double-guess the civil servants, and substitute their own judgment for that of the administrators.  But it does mean that if the administrators make an error of law, their decision will be “quashed” and the case sent back to be considered by them again, in accordance with the law.  Thus both distinctive roles and jurisdictions are respected, and justice more likely to be done.

Much supposedly expert commentary has suggested this week that Judicial Review is a new remedy dreamt up by the Judiciary to frustrate the post-war Lab our Government.  That is nonsense.  If it was prompted by anything, it was the Victorians' expansion of the State, from 1870 onwards.  The doctrine certainly played a major part in my professional life, when practising at the Bar in the 1960s.

It is certainly true that the expansion of the post-War "Interventionist State", as well as the Welfare State, multiplied massively the occasions on which the Court were asked to scrutinise the work of administrators, as they had traditionally overseen all inferior tribunals, or quasi-judicial decisions by civil servants.

It is also true that this scrutiny “for error of law” has become even more important, with the enactment of the Human Rights Act 1998, because many more objections now raise matters of law than was hitherto to the case.   There may be no dispute about the facts of a case, but bitter dispute as to whether the facts as a matter of law indicate a breach of human rights. So the scope for judicial review has, quite understandably and properly, expanded.  This is no vendetta by a prejudiced upper-class Judiciary against the popular mandate of a Labour Government representing the honest horny-handed heirs of Tolpuddle, as David Blunkett repeatedly implies.  It represents the systematic application of the rule of law to changing institutional circumstances.  That is all.  But it is fundamental importance - and the Government has got it wrong.

Now: in the case of asylum, it is already true that the Immigration Appeal Tribunal (i.e. within the Home Office decision system) is limited to examining errors of law, as the third-tier of the present system.  And is also true that the High Court is empowered to reconsider precisely the same issues, upon Judicial Review.  At present, there are therefore two conventional “administrative decisions”, the first by a single Home Office official, and the second by an independent Adjudicator appointed by the Home Office.  After that, both the Tribunal and the High Court consider precisely the same issues, restricted to "errors of law" – and I agree with David Blunkett that that is excessive - and that one should be abolished.

But the Tribunal should go, not the Courts. I would support the abolition of the Immigration and Asylum Tribunal - the “third administrative tier”.  The Home Office, having considered the matter twice, should then be subject to the jurisdiction of the High Court – as all other administrative agencies are.  It is not a good idea to develop a specialist Tribunal for the discharge of the review jurisdiction: the administration should always have to run the gauntlet of the ordinary High Court, whichever Judges happens to be on duty. That is a powerful check upon partiality within the Judiciary, and is a feature of our system which should be retained.  Specialist appeal tribunals are all-too-easily captured by the administrative system of which they form a part. 

In this matter, Woolf and the Judges are indisputably right – and Blunkett (and sadly, Robin Cook) are indisputably wrong. 

  • The Government should change tack.

Any further queries about this?  Drop me a line

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945  9 March 2004  

European Migration 
a socialist view

Letter from Michael McCarthy, 8 March 2004 - MM has been my valued and welcome correspondent on these pages, for over two years - he is a principled opponent of capitalism, with a visceral socialism which generates perceptions which those on the softer Left (where I seem to belong) can easily miss - Michael McCarthy is always worth reading - this time his analysis addressed the upcoming accession of the ten new EU States on 1 May...

Dear Roger

When it comes to the rights of EU citizens, the "underlying philosophy" which I would wish to see upheld is that rights should be honoured.  In this case, we should honour the right of free movement for citizens of EU accession countries.

The free movement of labour is a necessary concomitant of the free movement of capital and goods, insofar as such movements can self-evidently destroy jobs. That is why the free movement of labour was embodied as a principle in the original Treaty of Rome. The EU may be a capitalist club but, at a time when "actually existing socialism" represented a political challenge, it was clearly politic for the founders of the EU to draw up rules which at least appeared to the politically unsophisticated to be even-handed as between capital and labour.

  • If we are now to assert and defend the rights of workers in Eastern Europe, and to uphold the principle that capital and labour must be equally free to cross frontiers, should there not be an embargo on capital movements to these accession countries?  This embargo should last for just as long as there is any kind of restriction on the movement of labour, even if it "only" consists of restricting access to social benefits for a limited period.

Social benefits are not some kind of optional extra, but essential in a "free" labour market with its inescapable built-in insecurities.  Political parties of the Left who are represented in the European Parliament should, in my view, press for such an embargo. If not, they are colluding in a process which transparently privileges capital, disadvantages labour, and demonstrates (once again) that when a hard choice has to be made, the EU serves the already wealthy, not the ordinary citizens of Europe.

Another concomitant of EU expansion is that such East Europeans as are deemed not to be "benefit tourists" and actually manage to enter the UK, may well have the effect of driving down UK wage rates, which are already scandalously low for a large swathe of our fellow citizens. A cohort of immigrant workers who have no social benefits to fall back on are likely to exacerbate the problem of low pay by being even less able than others to bargain for decent pay and conditions.

Those likely to be affected by these factors (and all other UK citizens) should certainly have been consulted beforehand in a UK national referendum. I'm not aware that MEPs or MPs made it their business to alert their constituents to these kinds of issues when expansion was being discussed, any more than they have sought or listened to our opinions on what should be included in an “EU Constitution”. In fact they treated us with the usual contempt the political class shows us while colluding with decisions made over our heads.

I have attempted to raise this issue by e-mailing all the London MEPs in terms broadly similar to those set out above. Where they have responded, they have either –

  • (a) self-revealingly assumed that my concern was that hordes of East Europeans are likely to flood into the UK, and hastened to "reassure" me that controls were in place and that "benefit tourists" would be turned back;  or  
  • (b) they have assured me that they shared "my concerns".

But on the issue I was actually raising, the notion that if EU membership means anything at all, it must mean equal freedom of movement for labour and capital, I met with what I can only describe as a studied silence, a refusal to discuss this issue.

  • One last thought: we have become accustomed to the casual use of the insulting and prejudiced phrase "benefit tourists" in this debate. Perhaps people on the Left (such as yourself) should start to use the phrase "profit tourists" in respect of companies which move capital (and with it, often, existing UK jobs) to the most temporarily advantageous low-wage economy.

Regards

Michael McCarthy

What do you think?  Drop me a line

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