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Migration bill amendment modifies judicial ‘safeguard’

By Monidipa Fouzder >>

(2 June 2023)

Public law specialists have raised concern over an amendment to the Illegal Migration Bill that could give the government further control over judicial procedures.

The tribunal procedure rule committee (TPC) makes the rules governing practice and procedure in the first-tier and upper tribunals. However, the government has tabled in the Lords an amendment to the Illegal Migration Bill that gives the lord chancellor power to make the first rules regarding suspensive applications and appeals to the upper tribunal after the bill becomes law.

A delegated powers memorandum from the Home Office and Ministry of Justice, published this week, says the bill is expected to receive Royal assent in July.

The memorandum says: ‘The government recognises that the normal procedure for making tribunal procedure rules, whereby the TPC publicly consults on and formulates rules, is in place rightly in order to ensure functional separation between the judiciary and government, and that the expertise of the TPC is a safeguard to ensure both the interests of individuals using the tribunals and the proper functioning of the tribunal.

‘The government does not dispute the value of that safeguard, nor seek to diminish it. The only reason for this new clause is that the TPC has indicated it will not be able to draft the first rules in time for the commencement of the bill in the autumn, in compliance with its usual procedure, including its consultation obligations, under the [Tribunal, Courts and Enforcement Act 2007].’

This is not the first time the lord chancellor has been granted power to make the first rules of court, the memorandum added – referring to the Justice and Security Act 2013 in relation to the closed material procedure.

Lee Marsons, senior researcher at Public Law Project, told the Gazette that the bill already gives the government extensive powers to control judicial procedures, such as time limits for upper tribunal appeals, that will make it difficult for people to effectively challenge life-changing Home Office decisions.

‘There is too much risk that even further government control of judicial procedure could fatally undermine fairness and the House of Lords should reject this amendment,’ Marsons said.

(Courtesy: The Law Society Gazette)