As a legal professional I consider it my duty to speak in opposition of everything that disrespects the rule of law. Few days ago the Xue v Secretary of State for the Home Department  EWHC 825 (Admin) (31 March 2015) case came to my attention. I do not plan to examine or comment on this particular case, neither do I intend to make an observation on the immigration policies currently in place in the United Kingdom. What I seek to do, is speak about a direction in the public policy that can have treacherous results. What caught my attention in the Xiao Yun Xue v SSHD case, was hardly a singular occurrence, rather a manifestation of a trend that is becoming more prominent by day. The representative of the Secretary of the State put forward the following defence: “Miss Anderson submitted that it was not for the Court to exercise what she described as a "superhero" jurisdiction by seeking to put right perceived injustices arising from immigration detention. Detention was bound to be distressing, and depressing, for detainees. Parliament had set no time limit on the exercise of the powers conferred by Schedule 3 to the 1971 Act, and if limits were to be implied, they must not undermine the central purpose of detention, which was to facilitate the removal of FNOs who not only had no right to be here, but whose presence in the United Kingdom is not conducive to the public good. As many such prisoners, the Claimant presented clear risk of absconding and of committing further offences. To the extent that she had not co-operated with attempts to obtain an ETD, she had prolonged her own detention.” As humans, we are inclined to take progress as granted, forgetting that what we have gained can easily be lost, if we do not stand up against the abuse of power. The Court’s Power To Supervise I will try to explain in further detail why I find the Secretary of State’s submission unacceptable in a democracy. “…it was not for the Court to exercise a "superhero" jurisdiction by seeking to put right perceived injustices arising from immigration detention.” This, to my mind, is a direct attack on the power granted to the judiciary in its role as one of the limbs of the fundamental democratic concept - the separation of powers. The focal point of Judicial Review is to supervise the exercise of public power by the courts. This is one of the pivotal elements that make the United Kingdom a successful and established democracy. As Lord Brown of Eaton Under Heywood had put it in R v HM the Queen in Council, ex parte Vijayatunga  QB, “Judicial Review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law.” Determining whether an action is lawful or not is the court’s inherent power. Without such power there would be no checks, no balance between the powers of the state and ultimately, there will be no democracy. As A.V Dicey has put forward, in his attempt to define the rule of law - there must not be discretionary powers to the officials, as those can lead to arbitrary decisions. Taking the executive’s decisions outside of judicial control would mean end of rule of law that is the fundament of English constitution. Furthermore, in a shockingly impudent tone, the SSHD representative asserts that the court has no jurisdiction to “put right perceived injustices”. I find it disturbing that the SSHD needs reminded that breach of natural justice is one of the grounds for Judicial Review under English law. Hence, putting right an injustice, the incorrect application of the law is exactly what the courts are supposed to do and they have the sole jurisdiction in determining these aspects. This argument echoes the practice that we should have hoped to have put behind us. Such argument as “Parliament had set no time limit on the exercise of the powers conferred by Schedule 3 to the 1971 Act” is akin to suggesting the Home Office has unfettered discretion to detain. It has been once and for all settled by English courts that there are no areas where unfettered discretion exists. To re-open this discussion is a gross disregard for established case-law. Just a reminder of landmark cases of such failed attempts in different areas of administrative powers - Roncarelli v Duplessis  SCR 121, Cartwright J, (167), Ridge v Baldwin  AC 40, Lord Evershed (94)); Padfield v Minister of Agriculture, Fisheries and Food  AC 997. Perhaps closest to the current argument was the case of Leech v Deputy Governor of Parkhurst Prison  AC 533 (566), where Counsel for a prison governor argued unsuccessfully that if the court claimed jurisdiction to review prison governors’ decisions, ‘the tentacles of the law’ would invade prison administration; in R v Parkhurst Prison, ex p Hague  1 AC 58, the House of Lords ‘faced that prospect without undue alarm’ Lord Bridge (155). Both cases made it clear that prison discipline decisions are subject to the ordinary forms of control of discretionary powers. To claim now that immigration detention somehow is outside of such control is outrageous. Based on examination of the statute and the established case law, it is inarguable that it has and long have been the core of English law that the administrative power, whether exercised in discretion or under express statute, should be subject to judicial supervision. Moreover, the very Act Miss Anderson relies upon in her submission for SSHD, in section 2 (1) and 2(2) clearly indicates that the parliament never intended for the power to detain to be outside of the court’s control, as it defers the final decision to the courts. In further examination of the SSHD submission, it becomes clear that not only the Secretary of State thinks the courts have no jurisdiction to put right the injustices, but also seems to have no concept of the limitations that are imposed on her in exercising discretion. Common Law Limits Power to Detain In broad, general terms, discretion exercised by a public body should always be in good faith and for proper, intended and authorised purpose, and should never give rise to abuse. In the immigration area, there is also a landmark case that has established the principals that should govern such discretion - R(Hardial Singh) v Governor of Durham Prison  EWHC 1 (QB). The principals set in here were later upheld and explained by the Supreme Court. As the court references in Xiao Yun Xue v SSHD case, the SSHD power to detain is subject to Hardial Singh principals. Dyson LJ summarised the Hardial Singh principles in four propositions. (1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (2) The deportee can only be detained for a period that is reasonable in all the circumstances. (3) If before a reasonable period has expired, it becomes clear that the Secretary of State will not be able to effect deportation within that reasonable period, s/he should not detain. (4) The Secretary of State must act with reasonable diligence and expedition to effect removal. Hence, it is difficult to understand the basis of the following SSDH submission “….and if limits were to be implied, they must not undermine the central purpose of detention, which was to facilitate the removal of FNOs who not only had no right to be here, but whose presence in the United Kingdom is not conducive to the public good.” There is no if, about the implied limits, the courts have already established what these limits are. Of course, since the SSHD disputes the jurisdiction of the courts to enact justice, it is to be expected she would also dispute the application of Court’s rulings to her. However, the core of common law is still in place and the case law is still good law and everybody, including the Secretary of the State should abide by it. The SSHD defence also raises concerns about the fact that this department seems to have little to no regard for proportionality test when it comes to interference with human rights. ECHR Proportionality Test Limits Power To Detain The core of European Convention on human rights is that there are certain inalienable and inviolable human rights. Interference by the state in those rights is allowed only to an extent of protecting the interests of the larger public. The proportionality test is at the very heart of this issue. Both, the English courts and the EHRC have established very clearly that a right balance should be stricken between the public good the government is seeking to protect and the right of the affected person. Detention touches one of the most important human rights, one that also affects the exercise of nearly all other rights. Hence, it stands to reason, that while exercising discretionary powers of detention the authorities should be able to demonstrate utter consideration for proportionality. Unfortunately, we are currently left in doubt of the way the proportionality test is applied by SSHD given the commonness of very lengthy detentions, while the responsible bodies are often idle in exercising their obligation of implementing the deportation and removal decisions. Therefore, if the body trusted with discretion fails at exercising it, serious consideration should be given to more express regulation of the issue to avoid abuses in order to safeguard the rule of law. It seems now, an action from Parliament remains the only good solution. When the immigration Act 1971 granted SSHD with power to detain, the circumstances were different. At that time, the detentions where short and applied in accordance with the purpose the power was given for. Nowadays, it clearly is out of any realm that could be still seen as proper exercise of discretion and as such express limitations of the power to detain seems to be the only possible solution. Undoubtedly, when it comes to detention, discussion of proportionality of the interference with human rights is not complete without comparison with limitation of personal freedom under criminal law. One look at the amount of regulations and checks that exists for imprisonment under criminal law, is enough to understand that immigration detention regulation is far behind in compliance with human rights and basic democratic rules. Every small aspect of detention, arrest or custodial sentence is clearly regulated and limited in time. Furthermore, both, during investigation and after decision making, the solutions that imply limiting the suspect’s or the offender’s right to liberty are considered only after all other measures seem insufficient to satisfy the protection of public interest. Hence, the legislator considers that public good is still clearly served adequately by applying short time limits on the initial detention and limiting the arrest powers of the police, even the court’s right to interfere with individual’s freedom is severely regulated, with binding time limits in place. In this context, the approach of having no limit in immigration detention is truly mystifying, when it is exceedingly clear that is now a constant source of abuse of power. When unpunished for a long time, abuse in one area can give the sense of invincibility and being above law to the perpetrator. It is this effect that we now start to see in the SSHD attitude. This department’s attempt to put itself outside of courts’ supervision by arguing the courts have “no superhero” jurisdiction is just one manifestation of this. This is why the lawmakers should act swiftly in restoring the sense of everyone is subject to law. Public Good –v- Gross human rights Violation To conclude, I would just add this - public good can never be a reason for gross human rights violation, for there can be no public good when human rights are disregarded. It is also important to remember that there are no small issues when it comes to human rights, as the state itself is a complex, interconnected organism and malfunctioning in one area will inevitably lead to failure of the entire system. If we, as a society, accept that people, who admittedly have breached the immigration laws of this country, can be treated in manner that violates their human rights in such a devastating manner, where would we draw the line? Can we say for sure that in five or ten years there will not be another social group that the government will deprive of their human rights claiming again the public good? Can we say for sure that one day we will not be part of such group denied all of a sudden our human rights? Currently, there is an unfortunate debate of how ECHR and EHRC are a threat to the traditions and English law. I regret to say, no document meant to guarantee human rights can be a threat to the English law and its traditions, as the very essence of English law is the rule of law and human liberty. It is not the ECHR that destroys these traditions, but attempts to take parts of administrative power outside of Judiciary’s control.
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Posted on: Thursday, 23 April, 2015