Tag Archives: Courts and Parliament

Robert Thomas: The New Immigration Rules and the Right to Family life

In June 2012, Theresa May, the Home Secretary, laid a new statement of changes in immigration rules before Parliament. There is nothing necessarily extraordinary in that; the immigration rules set out the criteria governing the entry into and removal from the UK of foreign nationals and they are frequently amended – as a previous blog by Carol Harlow has noted – to reflect changes in immigration policy.

However, there is something quite distinctive and significant about the June 2012 rules – HC 194 – namely, they seek to prescribe how judicial bodies are to interpret and apply the right to family life under Article 8 ECHR in immigration cases. The government’s aim is, essentially, to reduce the scope for foreign nationals to avoid removal from the UK on the basis that this would breach their right to family life. The machinery for administering immigration policy has been repeatedly been criticised for not being fit for purpose and also for allowing foreign nationals without any right to remain in the UK under ordinary immigration categories to use Article 8. One particularly high-profile issue has been the use of Article 8 by foreign national prisoners, which has been highlighted by the Daily Telegraph in its “End the Human Rights Farce” campaign. Furthermore, the Coalition Government’s general policy is to reduce inward migration.

The new immigration rules raise a number of issues: (i) what exactly is being proposed and how? (ii) what Parliamentary process has been used? and (iii) how might the courts respond to the new rules?

What is being done and how?

 Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies?

In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. There was, the House of Lords held, no reason to defer to the Immigration Rules which “are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.”

Following Huang, then, it was for the decision-maker – whether initially a caseworker at the UK Border Agency, an immigration judge on appeal, or a court judge by way of further appeal – to make her own assessment as to whether or not removal would breach an individual’s right to family and private life. This test has been accepted and applied since 2007. However, the loss of control here has evidently been too much for the Coalition Government to bear – especially when under acute media and political pressure to respond to public concern – real or otherwise – on immigration.

The rationale for the new rules, therefore, commences by way of critique. According to the Home Office, the Huang approach has resulted in unpredictable and inconsistent decision-making which are anathema to good administration (seasoned observers of the behaviour, action, and inaction of the UK Border Agency and its predecessors may relish the irony here: see, for instance, a special report of the Parliamentary Ombudsmen and multiple reports by the House of Commons Home Affairs Committee on the UKBA’s handling of immigration applications). It has also meant that the courts do not defer to Parliament’s or the Government’s view of where the appropriate balance lies between family life and immigration control. Consequently, the solution – so the Government says – is to introduce new Immigration Rules to do two things: (i) to specify where the balance is to lie, that is, adopt a rules-based approach to proportionality; and (ii) to do so in a way which ensures that the new Rules have democratic legitimacy and should therefore only be subject to a light-touch judicial review.

How do the new Rules attempt to do this? By specifying the criteria to be applied in family life cases. For instance, in foreign national prisoner deportation cases, the new rules state that family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances. This rule allows little scope for a Huang-style general balancing exercise; the main issue under the new rule is whether or not there are “exceptional circumstances”, ie a return to the position reached by the Court of Appeal in Huang.

For those foreign national prisoners with a custodial sentence of between one and four years, the new rules introduce different requirements. Deportation will be proportionate unless they have a genuine and subsisting relationship with a partner in the UK and they have lived in the UK with valid leave continuously for at least the last 15 years and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years immediately and it would be unreasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK. Alternatively, they might have lived continuously in the UK for at least the last 20 years and they have no ties (including social, cultural or family) with their home country; or they are under 25 years, have spent at least half of their life living continuously in the UK and have no ties or there are exceptional circumstances.

There are similarly complex and lengthy rules concerning the tests to be applied to other categories of person other than foreign national prisoners, such as cases concerning children and those individuals who seek to remain by virtue of their long residence in the UK. Putting the detailed rules to one side, thee general thrust is to limit and confine discretion and for the Government to give a clear policy steer to the courts as to how they should interpret Article 8. What the Government intends is for the focus of the courts to shift away from assessing the proportionality in each individual case to assessing the proportionality of the Rules themselves. As the rule embody the proportionality assessment at a general level, it is not necessary – the Home Office says – to re-determine it in every individual case.

What Parliamentary process has been used?

A key aspect of the Government’s plan has been to circumvent the concern expressed by the House of Lords in Huang – that the Immigration Rules are not the product of active debate in Parliament. The new rules were debated and approved by the House of Commons.

Or were they? What actually happened on 19 June 2012 is that the Commons debated and approved a Government motion that Article 8 is a qualified right and that the criteria governing immigration are laid down in the Immigration Rules. So much is obvious to anyone with a passing acquaintance with the issues. However, some MPs at the time and, later the House of Lords Scrutiny of Secondary Legislation Committee, queried the relevance and consequences of the June debate. The Home Office’s inconsistent use of the term “Immigration Rules” caused considerable confusion throughout the Commons’ debate. One MP, for example, asked which Rules they were being asked to endorse – the ones current on 19 June or the new version of the rules as amended by HC 194 which would come into effect on 9 July 2012 (HC Deb col 806)).

The Scrutiny Committee has doubted whether procedurally the debate delivered a sufficiently clear endorsement of the wider policy to assist the courts. Although it was the Home Office’s firm intention to provide the courts with a clear policy steer on the weight to be given to Article 8 of ECHR in relation to the Immigration Rules, it was equivocal about the procedural approach for delivering it. According to the Scrutiny Committee, while the Home Secretary’s intention is clear, questions remain about whether the Government’s approach can deliver it: the Home Office provided no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates.

Putting the formal motion to one side, the purpose of the June debate was all about sending a clear message to the courts: apply the new rules or else risk defying the Government. As Theresa May stated:

 “the immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The immigration rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature. Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” (col 763)

The Government would no doubt have been confident that it would face few problems in the Commons on the substantive issue of confining family life for, amongst others, foreign national prisoners: only a few brave MPs would take issue with that. The Labour party’s line was that the message being sent to the courts was not strong enough because the policy was only being introduced through the Immigration Rules and not through primary legislation (col 774).

How, then, might the courts respond?

It is clear that the new rules will, before long, be challenged in the courts. This might initially take a little while. A case may first be determined by the Upper Tribunal (Immigration and Asylum Chamber), then by the Court of Appeal, the Supreme Court, and perhaps ultimately Strasbourg. The Home Office, though, seems ready for it. Along with the new rules, it published a detailed statement of ECHR compatibility which, unsurprisingly, concluded that the new rules are compatible with Article 8 ECHR.

What then of the courts? Since Huang, the Supreme Court has, in a number of cases, emphasized that the fact-sensitive and judgmental nature of the proportionality assessment in immigration cases cannot be constrained by rules. In EB (Kosovo), Lord Bingham stated:

 “the … [tribunal] … must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In another Article 8 case decided at the same time as EB (Kosovo) – Chikwamba – Lord Scott put it more succinctly:

“policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.”

The problem with the new rules is that there will always be cases that fall on the wrong side of the rigid requirements laid down, but which a court or tribunal may nonetheless conclude deserve to be allowed because of the strength of countervailing factors. It is generally recognised in administrative law that when the decision task at hand is particularly important – when the error costs of incorrect decisions are particularly high – then flexibility and discretion are to be preferred to rigid rules which are over-inclusive. Also, a flexible standard as applied by a court or tribunal enables affected individuals to participate directly in the decision-making process. But, these factors have to be weighed against political forces pushing in the opposite direction.

There are a number of options for the courts. First, the courts could simply accept the new rules and apply them by recognising them as the Government’s clear wish as approved by the House of Commons. This supine posture, however, seems unlikely. The Immigration Rules are subordinate legislation and not in any way immune from judicial scrutiny. Even if the courts recognise the need for some deference, the importance of Article 8 is a major countervailing force. As the House of Lords noted in Huang:

 “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

Secondly, the courts could go the other extreme and strike down the relevant immigration rules as incompatible with Article 8 as interpreted by the House of Lords in Huang. This is possible – if, for instance, the courts find that the rules so restrict the proportionality assessment that they do not comprise a valid interpretation of the case-law. Judicial invalidation of the Immigration Rules is rare, but not unknown. A determined Government could in response do two things: (i) change the rules on each occasion to accommodate the flexibility required by the courts; or (ii) introduce primary legislation, but that would take up valuable legislative time.

Thirdly, the courts could take a middle path by interpreting the Rules against the general background of the Human Rights Act and hold that the new rules do not absolve the courts from applying Article 8 under the HRA. After all, what is the legal status of formal secondary rules which seek to lay down the executive’s interpretation as to how independent courts ought to assess the proportionality of decisions that infringe a qualified ECHR right? The courts could conclude that, in the human rights context, the rules are to be treated as more akin to administrative guidance – a set of relevant considerations no doubt, but not formally binding because of overarching ECHR standards.

The scene is, then, set for a showdown – sometime in 2013-14 I would guess. It is almost as if the Government has drawn a line in the sand and has now dared the courts to cross it. Picking an argument with the courts has, of course, long been the stock-in-trade of Home Secretaries when the normally hard-grind of government gets even tougher; former Home Secretaries such as Michael Howard and David Blunkett both had their run-ins with the courts. A cynical observer might suggest that lying beneath all the formal surface issues of the rules, Parliamentary procedure, case-law, and so on, the Government has been in search of a future blame-avoidance strategy. If the courts accept the rules, then fine, but they are rejected, then the Government can always throw any political come-back into the courts’ direction. As Baroness Hale noted in Walumba Lumba, “[t]hese are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants’ correspondence, the courts must be prepared to take the hit even if they are not.”

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester

Suggested citation: R. Thomas, ‘The New Immigration Rules and the Right to Family Life’  UK Const. L. Blog (4th October 2012) (available at http://ukconstitutionallaw.org

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Stuart Lakin: How to Defend a Theory of the British Constitution

In two recent contributions to this blog, Professors Goldsworthy and Oliver have put forward two quite different bases for Parliament having sovereign power (and for courts not having the power to strike down legislation).  For Goldsworthy,  Parliamentary sovereignty is a fact about the constitution: it reflects the beliefs of most officials about the power of Parliament vis-a-vis courts. For Oliver, by contrast, Parliamentary sovereignty is a pragmatic necessity based on the practical need for mutual respect or comity between Parliament and courts

Which, if either, of these accounts is correct?  In this post, I want to say something about how to answer that question.     The topic, we might say, is constitutional methodology.    My aims are twofold.   First, I want to introduce this topic and some of the problems it throws up.   Secondly, I want to offer an outline defence of one particular method of doing constitutional theory.   I shall suggest after Ronald Dworkin that the theories of Goldsworthy and Oliver (along with every other theory of the constitution) must be understood as rival interpretations of British constitutional history and practice.    A theory is correct, I shall say, if it provides the most morally appealing interpretation of the constitution.

Constitutional Methodology: Some Issues and Problems

Public lawyers disagree about many aspects of the constitution.    They disagree, for instance, about whether, or in what sense, parliament is sovereign.  They disagree about whether judges have the power to invalidate statutes.    They disagree about the nature of the judicial role in judicial review proceedings.   And they disagree about whether individuals have rights that cannot be removed by parliament.  What is sometimes less obvious is that public lawyers also disagree about how to answer those types of questions.   They disagree, that is, about what makes it the case that parliament has absolute legislative powers, or that parliament’s powers are limited by judicially enforceable legal rights and principles, or that some other distribution of rights, duties and powers obtains in the constitution.

Here are just three of the different constitutional methods that one can detect in the public law literature, beginning with an elaboration on the work of Goldsworthy and Oliver (above).

1.      Goldsworthy implies in his work that constitutional theory is descriptive and morally-neutral in character.     Parliament is sovereign, he says, because this is what most  officials accept (i.e. say, believe, or otherwise practice).  It is the Hartian ‘rule of recognition’ in the constitution. Whether Parliamentary sovereignty is morally acceptable is irrelevant to its existence.  Those theorists who argue for a judicial strike-down power, he says, are simply making a factual mistake about the practice of officials.

2.      Oliver argues in her work that constitutional theory involves a pragmatic (non-principled)judgement about what works in the constitution.    The reason that Parliament is sovereign, and that judges respect that sovereignty, she says, is that a range of undesirable consequences would flow from any attempt by judges to upset that arrangement (e.g. damage to the reputation of the courts, institutional gridlock).     A distinction has to be made, Oliver contends, between the theoretical/principled case for judges having a strike-down power and the practical workability of them having such a power.

3.      For theorists such as Allan, Jowell, Craig and Laws, constitutional theory is thoroughly normative in character.  The legislative powers of Parliament, and the adjudicative powers of judges, they argue, depend on the moral principles that justify those powers.   It follows that if Parliament possesses absolute legislative power, there must be a compelling moral basis for such power.  Allan, in particular, contends that there is no plausible justification for Parliamentary sovereignty.   A more convincing moral reading of the constitution, he says, points to a theory of liberal constitutionalism and ‘strong’ judicial review.

Even taking this very small sample of different approaches to constitutional theory, it is not difficult to see the potential for confusion.    If different theorists are using different methods to identify the powers of Parliament and courts, then their disagreements suddenly look rather futile.   Indeed, it might be said that they are not disagreeing at all: that they are talking past each other or pursuing different projects.  We can reinforce that gloomy diagnosis by imagining the following dialogue between Goldsworthy and Allan:

G –  Parliament is sovereign because this is what most officials accept.

A –  It doesn’t matter what most officials accept.   My constitutional method does not depend on acceptance by officials, but on the normative justification for the legal powers of institutions.    Parliamentary sovereignty cannot be justified.  The principles of the rule of law and the separation of powers demand that judges have the power to invalidate legislation.

G  – You are making a factual mistake.  For centuries, judges and theorists have denied that judges can strike down legislation.

A  – That may be so, but what judges and theorists accept, or have historically accepted, may diverge from the true normative powers of institutions.

G and A – (Audible sigh)

There is clearly something deeply unsatisfactory about this imaginary exchange.    Each theorist begins their analysis in a different place: one begins their analysis with acceptance; the other begins with justification (incidentally, this is precisely the way that I read the actual exchanges between Goldsworthy and Allan).  Is there any hope of resolving such a fundamental difference in approach?     Before I attempt to provide a positive response to that question, let me first consider a possible negative response.

It may be that some constitutional theorists, at least, are indeed pursuing different projects.    Goldsworthy and Allan (along with most other constitutional theorists, we can suppose) seem to be interested in identifying the true rights, duties and powers of institutions and individuals in the British constitution.   In other words, they are trying to offer a theory of the normative effects of British constitutional practice.   Other theorists seem to be less interested in, or less sympathetic to, that project. For political constitutionalists such as Bellamy, constitutional theory involves constructing an ideal model of the relationship between Parliament and courts.    The theory of Parliamentary sovereignty, he implies, may or may not reflect the prevailing balance of power in the constitution, but it is the theory that approximates most closely to the ideals of political constitutionalism.    In a different vein, Griffith can be read as bringing the perspective of a political scientist to constitution analysis.  His interest is in the realpolitik of the constitution (i.e. where the sources of brute power can be found).    Thus, it is the Government rather than Parliament, he says, that possesses sovereign power (perhaps it would be Rupert Murdoch or Tesco today…).    There are hints of Griffith’s approach in the work of Oliver (above).    By her claim that there is a gap between the reality of institutional powers in the constitution and the (normative) theory of those powers, Oliver is perhaps similarly attempting to offer the descriptive view of a political scientist rather than the normative view of a constitutional theorist. I shall resist that reading of Oliver in the section that follows.

Interpreting the British Constitution

I now want to offer a positive response to the question that I posed above (viz. is there any hope of resolving the fundamental difference in approach taken, for instance, by Allan and Goldsworthy?)    Let me first try to sharpen the inquiry a bit.    Our interest is in whether theorists who seem to employ very different methods of constitutional analysis (as illustrated in 1-3 above) can intelligibly disagree with each other.    At the same time, we want to be in a position to say that one theory of the constitution provides the correct theory, or a better theory than some other theory.      The object of the inquiry, then, is to arrive at some common framework, or some common measure of success for all theories of the constitution.    It is the interpretive approach mentioned at the start of this blog item that, I think, holds the key to this ambition.

Rather than attempt a long and detailed exposition of Dworkin’s interpretive approach, let me spell out as plainly as possible a) how I think this approach makes disagreement between Goldsworthy, Oliver and Allan possible; and b) how, according to this approach, one of these theories can potentially provide the correct understanding of the constitution.

In answer to a), the level at which the disagreement between Goldsworthy, Oliver and Allan can take place must be more abstract than we have so far considered.   In the imaginary dialogue above, both Goldsworthy and Allan make arguments that are internal to their preferred constitutional method: Goldsworthy argues on an empirical level about official acceptance, while Allan argues on a normative level about how to justify institutional powers.    The real disagreement between Goldsworthy and Allan, I suggest, concerns the deeper question of why the powers of Parliament and courts should depend either on empirical argument or normative justification (or, to include Oliver’s approach, pragmatic judgment).   These are rival approaches to constitutional analysis which each require a positive argument in their favour.   Goldsworthy must explain why acceptance by officials is the decisive factor; Oliver must explain why pragmatic judgment is the decisive factor; and Allan must explain why moral justification is the decisive factor.   By extension, each theorist must try to show why the factors identified by other theorists are erroneous.

This brings us to b).   It will be tempting for some theorists to claim that their favoured method of constitutional analysis is descriptively correct: that their method is not so much a theory as a factual statement of the way the constitution works.    This recalls the claims made by Griffith (and perhaps Oliver) above.   It also recalls the way that Herbert Hart sought to characterise his approach to legal theory (it is not altogether clear to me whether Goldsworthy endorses that characterisation).     Unfortunately, such a descriptive claim is doomed to fail.    Every theorist presumably believes that his or her method provides the correct understanding of the constitution, and that other methods provide an inferior understanding.   Every method identifies particular facts, features or standards of constitutional practice as representing the reality of the constitution.     There is no way that any theorist can stand above or outside these mainstream debates. They must defend their method with arguments like every other theorist.      That defence, I suggest, can only be an interpretive (or justificatory) one.    Each theorist must attempt to show that their preferred method provides the most morally appealing interpretation of British constitutional history and practice.

These responses to a) and b) now require some unpacking.   What exactly does an interpretive defence of any particular constitutional method involve?  Goldsworthy, Oliver and Allan (along with all other constitutional theorists), I suggest, must show two things at once.   They must first show that their preferred method has independent moral appeal as an account of law, government and the state.   If a theorist relies on (or presupposes) a defective general legal and political theory, then we can almost certainly discount their theory as a viable account of the constitution.   Secondly, assuming that their underlying legal and political theories are sound, a theorist must then show that their preferred method is capable of making sense of the salient facts and features of British constitutional practice.   In other words, they must show that they are advancing, not a Utopian theory, but a theory of the particular constitutional practices and traditions in Britain.

What might an interpretive defence of the methods of Goldsworthy, Oliver and Allan look like?

Goldsworthy’s argument might (and, in part, does) go something like this.  That the powers of Parliament and courts depend on a consensus of acceptance among officials can be justified by such values as certainty, clarity and constitutional stability.   If members of each branch of government must agree to the powers of Parliament and courts, then the risk of a constitutional crisis is minimal.    Neither Parliament nor courts can unilaterally unsettle the system.    A theory based on official consensus also fits the day-to-day practice of judges and officials.   Judges give effect only to the clear meaning of statutory text or to clear rules contained in previous judgments.    There is no sense in which judges make moral judgments either about the proper powers of institutions or about the substantive content of the law.

Oliver’s argument might go something like this.   That the powers of Parliament and courts depend on pragmatic, all things considered judgments can be justified by the values of comity and mutual respect.    If courts and Parliament do not trample on each other’s territory, then things will work out better in the long run.   Courts will maintain their authority, and there is less scope for a clash between branches of government.    A theory based on comity and respect fits the day-to-day practice of courts and officials.   Judges frequently defer to the opinion of officials, and they suppress any thought of striking down legislation.   Likewise, Parliament and the Government generally refrain from criticising judges or judgments.

Allan’s argument goes something like this.   That the powers of Parliament and courts depend on moral principles can be justified by values such as integrity, equality and a range of basic liberties.   The very point of law and government is to ensure that people are treated in accordance with these fundamental principles.   It follows that the state does not have the power to act in a way that contravenes such principles.    A theory based on moral values and principles fits the democratic structures of government.   It also fits the way in which judges bring arguments of constitutional principle to their adjudicative task.

These are merely sketches of what an interpretive defence of these different constitutional methods might look like.  The crucial point to note for our purposes is how each theorist must go about defending their constitutional method and the theory they derive from it, and how they must go about attacking other methods and theories.    Constitutional theory, I have suggested (at greater length than I initially hoped), must be interpretive (rather than descriptive, conceptual, logical or whatever).

Stuart Lakin is a Lecturer in Law at the University of Reading

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Richard Ekins: Yemshaw and “updating” statutes

Should judges update the meaning of statutes?  Consider Yemshaw v London Borough of Hounslow [2011] UKSC 3, in which the Supreme Court updated a statute.

The question in Yemshaw was the meaning of ‘violence’ in s 177(1) of the Housing Act 1996. The precursor to s 177 was s 1(2)(b) of the Housing (Homeless Persons) Act 1977, which said a person is deemed to be homeless if ‘it is probable that occupation of [his residence] will lead to violence from some other person residing in it or to threats of violence from some other person residing in it and likely to carry out the threats’.  There was no use of the term ‘domestic violence’ in this section, although the term does feature in s 5(1)(iii).  The 1977 Act was consolidated in 1985 and this in turn was recast in the 1996 Act, s 177(1), which used the term ‘domestic violence’ but defined it, just as in the 1977 precursor, to mean ‘violence from a person with whom he is associated, or threats of violence from such a person which are likely to be carried out.’  The section was amended by the Homelessness Act 2002, which inserted a new s 177(1A):

 (1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him, or against – (a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him.

 (1A) For this purpose ‘violence’ means – (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is ‘domestic violence’ if it is from a person who is associated with the victim.

The new formulation in 1996 made clear it extends to violence against one’s family members.  The 2002 amendment includes ‘other violence’, extending protection to those at risk of ‘violence’ from non-associated persons; but the definition of violence is the same.

Lady Hale gave the lead judgment, arguing that s 177(1) now extends to harmful or abusive action at large.  She said physical violence is only one of the natural meanings of ‘violence’ (another is intensity of feeling and passion).  By 1996, when the term ‘domestic violence’ is used, Lady Hale notes, there is a consensus amongst national and international governing bodies that ‘domestic violence’ is more than just ‘physical violence’.  She argues that:

 ‘…whatever may have been the original meaning in 1977 … by the time of the 1996 Act the understanding of domestic violence had moved on from a narrow focus upon battered wives and physical contact. But if I am wrong about that, there is no doubt that it has moved on now.’ [24]

Her main support for this claim is a major Home Office report in 2005.  This change in understanding, Lady Hale says, is relevant because ‘the courts recognise that, where Parliament uses a word such as ‘violence’, the factual circumstances to which it applies can develop and change over the years.’  She relies on Lord Steyn’s opinion in R v Ireland [1998] AC 147 for this proposition.  She then refers to Lord Clyde and Lord Slynn’s opinions in Fitzpatrick v. Sterling Housing Association Ltd [1999] 3 WLR 1113 , the latter citing Bennion in support.  Lady Hale notes that the Fitzpatrick decision involved changes in relation to the word ‘family’.  She then argues that ‘violence’ is similar to family: it is not technical and its meaning may change over time.  The essential question, Lady Hale says, is whether an updated meaning is consistent with the statute’s purpose.  She concludes:

‘…that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on. The purpose of the legislation would be achieved if the term ‘domestic violence’ were interpreted [to include] ‘physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.’ [28]

Lady Hale recognises some problems with this interpretation, which I note below. Interestingly, Lord Brown too, in his quasi-dissent, refers to the ‘always speaking’ approach or the Fitzpatrick principle and says the question is whether the court should apply it here.  He suggests various reasons why ‘violence’ means ‘physical violence’ yet does not dissent.

Why object to updating?  The problem with updating is that it is inconsistent with legislative authority. The statute has been chosen by the legislature and may not be amended by any other. Updating the meaning of the statute, in the sense I have discussed, is to amend it. It is irrelevant that some legislators prefer updating, for it is inconsistent with authority. The updating doctrine is an illicit Henry VIII clause of uncertain application. This means the content of the law changes when word meaning changes, which is arbitrary. This is a very poor way to decide when or if to change the law for there is no careful consideration, by relevant authority, of whether this change is warranted. Instead, changes turn on (are mediated through) arbitrary word manipulation and then are applied retrospectively.  It is uncertain when or if the content of the law is liable to updating or will be changed. And it is very difficult for the legislature to avoid its decisions being amended in this way.

Let me return to Yemshaw.  I take it the legislature’s intended meaning in defining ‘violence’ as it did was to convey the type or class ‘physical violence’, the deliberate infliction of force.  The legislature’s choice of language in 1977, 1996 and 2002 make this the obvious inference. If ‘violence’ includes psychological abuse, the term should include threats whether likely to be carried out or not.  Yet the statute limits threats to those likely to be carried out. Further, it is awkward to speak of threats to carry out psychological abuse. Moreover, ‘violence’ is constant whether the violent person is associated or not, yet it seems implausible for Parliament to proscribe other harmful action from non-associated. Also, as Lord Brown says, that this is an emergency/deeming provision supports this reading.  Updating the meaning by reference to understandings of ‘domestic violence’ at large and post-enactment is to amend this statute to make it conform to those understandings. That is, it ignores the choice the legislature made and instead takes advantage of word choice.

The court says that the statutory purpose constrains. However, the problem here is that the statutory purpose is being picked out quite arbitrarily. The court says the purpose is to protect people from harm. And this is true to the extent that violent action is a subset of harmful action. But one might think the purpose was to protect people who are at risk of physical violence. Lord Rodger says that to fail to extend this would be to downplay psychological abuse, but this is an argument for extension to harm at large (say, drug use, criminal associates). And indeed, it looks very much like extending the statute by analogy. I note also that Lady Hale answers the argument that her reading extends to abusive conduct from non-associated persons by saying there is a threshold of seriousness. This introduces into the provision an otherwise absent, qualitative standard. This confirms, I think, that the interpretation in this case was illicit judicial amendment.  There is no good reason to update statutes in the sense I’ve discussed.  Indeed, updating statutes is unconstitutional and the courts should stop doing it.

 

This post is extracted from a lecture given to the Statute Law Society, 9 May 2011. 

 

Richard Ekins is a Senior Lecturer at the Faculty of Law, The University of Auckland.

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