1. I have been asked by the Refugee Legal Centre whether I am able to identify and outline any viable argument, using the common law, by which a statutory ouster of judicial review could be regarded as legally questionable. That issue arises because of clause 10 of the new Asylum and Immigration Bill.

2. I will not set out here an analysis of the provisions of the Bill themselves, the nature and effect of the proposed statutory ouster, or the proposed power of limited referral to the appellate court. I will start from the premise that there would be a new Act involving a clear and unambiguous exclusion, in primary legislation, of the right which an asylum-seeker would otherwise have, to seek judicial review of asylum decisions made by public authorities. I also think it wise to assume that the Court, whether on a direct challenge to the new legislation or collaterally by being invited to disapply it, would focus on the Act head-on rather than, say, its implementation by the Executive (cf. R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513; R v Secretary of State for Education and Employment, ex p Liverpool Hope University College [2001] EWCA Civ 362 [2001] ELR 552). I will leave to one side particular arguments which may arise by reference to the ECHR (and the Human Rights Act), international law (including international refugee law) and EC law. My focus is on the common law.

3. It is necessary to recognise that conventional principles, as traditionally applied by the domestic courts, would not question the legality of clear and unambiguous primary legislation ousting judicial review. The starting-point is the supremacy of Parliament. As has been said (R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46 [2003] 1 AC 837 at [39] per Lord Steyn):

the supremacy of Parliament is the paramount principle of our constitution.

The supremacy of Parliament means of course that the Courts' role is to interpret primary legislation, not to question its content. There is a "constitutional imperative that the courts stick to their interpretative role and do not assume the mantle of legislators" (R (on the application of Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 WLR 692 at [15] (Lord Bingham)), it being "impermissible ... to develop the law in a direction which is contrary to the expressed will of Parliament" (R v Chief Constable of the Royal Ulster Constabulary, ex p Begley [1997] 1 WLR 1475, 1480H). As Lord Diplock famously said in Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B-158C:

it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them... Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters ... there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament's opinion on these matters that is paramount.

4. Thus, conventional and well-established doctrine has it that Parliament can enact whatever legislation it pleases, including restricting fundamental rights (including access to the courts), by plain words in primary legislation. Viscount Simonds referred in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286 to "the subject's recourse to Her Majesty's courts for the determination of his rights" as being capable of being "excluded ... by clear words"; and Lord Sumner had referred in R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 162 to legislation "limiting the jurisdiction by way of certiorari ... where explicit language is used for that purpose". Likewise, orthodoxy holds that, leaving aside EC law (as to which see R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1), the Court will not strike down, declare to be invalid, or disapply, primary legislation. As the Court of Appeal explained in R (on the application of Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 1002 14th July 2003 unrep. at [10]:

The fact is that so far no court in the last century and more has set aside any provision of an Act of Parliament as being unlawful save in the circumstances set out in the European Communities Act.

5. It can be seen how conventional principles, based on legislative supremacy, could readily and understandably be treated as the beginning and end of the question. Especially when it is seen that the conventional principles are reflected and reinforced in the Human Rights Act 1998, by which Parliamentary supremacy is retained, with the Courts' role (even under the special duty in s.3) being an interpretative one, and under which there is a tailored and expressly-conferred power to make declarations of compatibility. They are also reflected in discussion of the pre-HRA (common law) approach to fundamental rights, it being said that Parliament can, provided it does so by clear words, take away fundamental rights. As Lord Hoffmann explained the position in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 131E-G:

in a constitution which, like ours, acknowledges the sovereignty of Parliament ... Parliament can, if it chooses, legislate contrary to fundamental principles of human rights... But the principle of legality means that Parliament must squarely confront what it is doing ... [by] express language or necessary implication ...

6. The HRA (and the European Communities Act 1972) reflects Parliament's answer to a question of constitutional balance, concerning the extent to which the Court can review, impeach or disapply a provision of primary legislation. Lord Hoffmann's comments in Simms reflect the common law's answer, given by the Courts. The law does not stand still. As Lord Mackay said in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29 [2002] 2 AC 122 at [33]:

The genius of the common law is its capacity to develop.

And as Steyn LJ said in R v Panel on Take-overs and Mergers, ex p Fayed [1992] BCC 524 at 536C:

In the developing field of judicial review it is usually unwise to say `never'.

7. There are a number of features which link and support the argument for taking a more radical approach. The first feature is the overarching legal concept of the rule of law. This is a core value at the heart of our unwritten Constitution. Lord Bridge expressed it in this way (R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42, 67F):

There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself.

More recently, Lord Steyn has referred (R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 [2003] 3 WLR 252 at [28]) to:

the constitutional principle requiring the rule of law to be observed.

8. The second feature is the protection of fundamental, "constitutional" rights, including the right of access to law, and the development of "principles of legality". Independently of the ECHR, and the HRA, the common law has increasingly come to recognise the existence and implications of basic human rights. Most importantly, such rights are capable of being characterised as "constitutional rights" (see eg. R v Lord Chancellor, ex p Lightfoot [2000] QB 597, 609B), a concept traced back at least as far as R v Secretary of State for the Home Department, ex p Leech [1994] QB 198, 210A. As was said in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151 at [62]:

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional ...

Access to law is at the fore of these constitutional rights, so that (R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 [2003] 3 WLR 252 at [26] per Lord Steyn):

the right of access to justice ... is a fundamental and constitutional principle of our legal system.

Access to law is crucially important in the refugee context, hence the importance of judicial review, because of (R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514, 531E-G per Lord Bridge) "the gravity of the issue" since "the most fundamental of all human rights is the individual's right to life" and the asylum decision "may put the [individual]'s life at risk".

9. The third feature, alongside the recognition of "constitutional rights", is the developing law as to what has been called the "principle of legality": see especially R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 130D-G; and R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, 573G-575D, 587C-590A. Thus far, Courts have said (or assumed) that even "constitutional" rights are embedded in the law only insofar as not excluded by plain words in primary legislation. But it is crucial to appreciate that this is not because such restraint is imposed by the Court, still less because commanded by Parliament itself (eg. in the HRA). Rather, it constitutes a present choice on the part of the common law, recognising the point which the common law has so far reached. As Laws LJ has commented (respectively, in R v Lord Chancellor, ex p Witham [1998] QB 575, 581E and then in R (on the application of International Transport Roth GmbH) v Secretary of State for the Home Department [2002] EWCA Civ 158 [2003] QB 728 at [71]):

at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice.

In its present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary sovereignty and constitutional supremacy.

The potential of the "principle of legality" as establishing constitutional primacy even for Acts of Parliament can be seen to be evident from this passage (B (A Minor) v Director of Public Prosecutions [2000] 2 WLR 452, 463H per Lord Steyn):

Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality.

10. The fourth feature is the nature of judicial review itself. Judicial review is not simply a form of legal proceeding, interference with which impacts on access to law. It is much more than that. Judicial review involves the Court recognising and asserting its constitutional function of scrutinising the legality of administrative action. As many academics have pointed out, there is more to judicial review than "ultra vires" theory and the enforcement of the will of Parliament. Byles J famously recognised "the justice of the common law" (Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 at 194) and Laws LJ has referred to "abuse of power" as a root concept governing judicial review (R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129F-G). Judicial review was invented by the Courts, so as to ensure that the Executive is not above the law. As Lord Templeman said (respectively, in R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 at 751B and Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526A):

judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power.

Judicial review was a judicial invention to secure that decisions are made by the executive or by a public body according to law ...

Judicial review therefore has a constitutional role (see R v Ministry of Defence, ex p Smith [1996] QB 517 at 556D-E per Sir Thomas Bingham MR):

[The court] has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power.

So, there is a clear and strong link between judicial review and the rule of law. Lord Hoffmann described the position in this way in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2001] 2 WLR 1389 at [73]:

The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament.

And as Lord Griffiths memorably pointed out in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 at 62A-B:

the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

In the words of Simon Brown J (R v HM the Queen in Council, ex p Vijayatunga [1988] QB 322, 343E-F):

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.

Judicial review protects and applies the rule of law. For Parliament to purport to exclude judicial review therefore strikes at a constitutional right (access to law), but furthermore at a constitutional protection (judicial review) supported by a constitutional imperative (the rule of law).

11. The fifth feature is that the logic of "constitutional" legality can be seen as calling the Court to recognise the potential, in a sufficiently extreme case, to scrutinise the constitutional propriety of even a source of primary legislation. The conventional approach is for the Courts to recognise and uphold the constitutional propriety of primary legislation by reference to the constitutional principle of legislative supremacy. But even that approach is compatible with the idea that the Court is entitled to ask the question of constitutional legality. It is part of the logic of legislating against a backcloth of "higher authority", that such legislation be measured against that higher authority. As Laws LJ has explained (R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at [46]):

a legislature created by a measure passed by a body which is legally prior to it must act within the confines of the power thereby conferred... [N]othing could be more elementary.

Written constitutions, of course, are enforced by judges throughout the world by scrutinising the constitutional legality of primary legislation. That includes the Privy Council, sitting in London, hearing final appeals from jurisdictions having a written Constitution. This is an area where comparative jurisprudence can bring what Lord Goff's Child Lecture called an unparalleled "enrichment of our legal culture" (see Markesinis in The Clifford Chance Millennium Lectures: The Coming Together of the Common Law and the Civil Law at p.66). There is no necessary or inherent reason why protection under an "unwritten" Constitution should be less real than protection under a written Constitution. Neither involves overriding legislative supremacy, nor the separation of powers, but rather recognising the proper place of each within a Constitution based on the rule of law. It should be remembered that, even in the case of a written Constitution, the judicial role of scrutinising the constitutional legality of primary legislation may not be contained within the constitutional instrument itself. That was the position in the United States, where the Supreme Court had to (and did) decide for itself that the logic of constitutional legality meant that the Court should assume the responsibility for ruling on the constitutionality of primary legislation: see Marbury v Madison (1803) 5 US 137, 176-178. Thus, there is an answer here to the principle that the Court cannot question the wisdom or expediency of primary legislation (Duport Steels, above). The answer is that the Court would be questioning only constitutionality. This is an important step on from Lord Hoffmann's approach in Simms. That involved what Lord Hoffmann called the application of "principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document". This would involve applying "the same" principles of constitutionality.

12. The sixth feature is the existence of judicial building blocks. Strong and previously unquestioned may be the conventional approach to legislative supremacy and Parliament's untrammelled right to enact any provision by plain words. But there are strands in the case-law which should not be overlooked, in weaving the argument on this historic issue. As I have illustrated, there is support in the domestic case-law for features mentioned above: the rule of law, constitutional rights and the principle of legality, the constitutional function of judicial review. There are also particular areas which could profitably be revisited.

13. One such case is Anisminic, already recognised as introducing judicial review for error of law, but able to be revisited on the question of statutory ouster. It can powerfully be said that, in truth and on reflection, the statutory provision in that case was a plain and unqualified ouster extending to judicial review. The result, however, would be the same on a modern constitutional approach because the so-called "presumption" that Parliament "cannot be taken" to have ousted judicial review is in truth not so much a presumption as a "principle of legality", underpinned by the rule of law. It is a recognised step for what starts life as a "presumption" to become viewed as a constitutional principle of legality, as Lord Steyn has pointed out (B (A Minor) v Director of Public Prosecutions [2000] 2 WLR 452 at 464D, endorsing the analysis by Sir Rupert Cross):

such presumptions `not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate as constitutional principles which are not easily displaced by a statutory text'.

The question becomes whether the constitutional principle is capable, in some contexts, of being displaced by a statutory text.

14. Alongside Anisminic, a similar explanation can be given to the case-law by which Courts have declined to apply the statutory restriction found in s.29(3) of the Supreme Court Act 1981, which on its face would prevent judicial review of matters relating to trial on indictment, but which the Courts have declined to apply to cases of jurisdictional error/nullity: see R v Maidstone Crown Court, ex p Harrow London Borough Council [2000] QB 719; R v Leicester Crown Court, ex p Commissioners for Customs and Excise [2001] EWHC Admin 33 at [22]; R (on the application of Kenneally) v Snaresbrook Crown Court [2001] EWHC Admin 968 [2002] QB 1169 at [38]-[40]. Even legal history can assist, for it is possible to trace back an ancient tradition recognising that even an Act of Parliament could be questioned in the Courts were it to run counter to "higher authority". There are echoes here of the notion that inherent in the concept of "law" is compatibility with constitutional rights or fundamental constitutional norms: cf. Chuan v Public Prosecutor [1981] AC 648, 670G ("law" meaning "a system of law which incorporates those fundamental rules of natural justice"). Certainly, the Courts are aware that there is an open question. As the Court of Appeal said in R (on the application of Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 1002 14th July 2003 unrep. at [11]:

we say nothing, because we need say nothing, about what has been much discussed in the legal literature, namely, whether the courts could in some circumstances refuse to enforce an Act of Parliament which said that all babies under two years of age should be slaughtered. That is not this case.

15. The seventh feature is, as indicated in Southall, academic commentary. Alongside comparative case-law, it is not difficult to find commentary which could assist. For example, as Professor Geoffrey Wilson put it in The Courts, Law and Convention in The Making and Remaking of the British Constitution (1997) at p.116:

Nobody should be surprised if in a real case of legislative enormity the courts did not discover a higher principle of law by which they felt free or even obliged to ignore the current version of the doctrine [of Parliamentary sovereignty] not only in the name of constitutional convention but also in the name of law.

The point cannot surely have been better expressed than in Lord Woolf's 1994 F.A.Mann lecture (published in [1995] PL 57, 68-69):

My approach ... involves a proper recognition of both the pillars of the rule of law and the equal responsibility that Parliament and the courts are under to respect the other's burdens and to play their proper role in upholding the rule of law. I see the courts and Parliament as being partners both engaged in a common enterprise involving the upholding of the rule of law...

There are however situations where already, in upholding the rule of law, the courts have had to take a stand. The example which springs to mind is the Anisminic case. In that case even the statement in an Act of Parliament that the Commission's decision "shall not be called in question in any court of law" did not succeed in excluding the jurisdiction of the court. Since that case Parliament has not again mounted such a challenge to the reviewing power of the High Court. There has been, and I am confident that there will continue to be, mutual respect for each other's roles.

However, if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent. Some judges might choose to do so by saying that it was an unrebuttable presumption that Parliament could never intend such a result. I myself would consider there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold. They are limits of the most modest dimensions which I believe any democrat would accept. They are no more than are necessary to enable the rule of law to be preserved.

16. The eighth and final feature is the concept of "dual sovereignty". The modern view of the constitution is not that Parliament has sole supreme power, but that it and the Courts each has constitutional sovereignty, based on a separation of powers involving mutual respect each for the other. The idea of dual sovereignty can be seen reflected in Lord Bridge's observation in X Ltd v Morgan-Gampian Ltd [1991] 1 AC 1 at 48E that:

The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.

As Sedley J put it in In re F (Adult: Court's Jurisdiction) [2001] Fam 38 at 56D, the relationship between Parliament and the courts is:

a working relationship between two constitutional sovereignties

Sir John Donaldson MR put it in this way (R v HM Treasury, ex p Smedley [1985] QB 657, 666C-D):

Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes. It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so.

He continued:

... I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts.

A statutory ouster of judicial review would trespass on the duality, separation and mutual respect. It would raise a constitutional conundrum which ultimately the Courts themselves would have to resolve. One way of putting it is as follows. It would certainly be said that the constitutional function of the Court is to judicially review the legality of administrative action, not to review and disapply a provision of primary legislation. But to that powerful submission there is an extremely powerful response: in reviewing and disapplying a statutory ouster of judicial review, the Court is not extending and stepping outside its constitutional function of reviewing administrative action, but rather it is acting precisely to preserve and therefore discharge that constitutional function. Put another way, it would have been Parliament, and not the Courts, which would have failed to respect the dual sovereignty and mutual respect between legislature and judiciary, and the Court would be doing no more than restoring the proper division of labour reflected in the separation of powers on which "the British constitution, though largely unwritten, is firmly based" (Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B-C (Lord Diplock)).

17. Putting these features together, a cogent case for impugning the constitutional legality of a statutory ouster of judicial review can be made. Such a legislative choice would place Parliament and the Courts on a collision course. It would be an historic legislative step raising a constitutional law issue of huge significance, and which could lead to a historic judicial response. Certainly, it would seem highly dangerous for Government to assume that conventional approach to legislative supremacy would provide the answer. Such a case would require a fresh look and would ultimately need to be answered by reference to fundamental constitutional considerations. Speaking for myself, as with the writings of Professor Wilson and Lord Woolf, I would not be at all surprised if the House of Lords, in the exceptional circumstances of an ouster of judicial review, recognised it as the role and responsibility of the Court to strike down such an enactment as unconstitutional. To do so would be to re-establish the required mutual respect in a situation of dual sovereignty, by preserving the function of judicial review of administrative action, and so ensure the upholding of the rule of law. There is indeed a viable and cogent argument, supportable by powerful strands of authority, whose acceptance would see the Court recognising its responsibility to take that important step.

MICHAEL FORDHAM

Blackstone Chambers

8 January 2004