21st October 2021
Yesterday, while lawyers and commentators were discussing the recent speech by the Attorney General, the Supreme Court of the United Kingdom handed down a judgment that may be more significant than anything the Attorney General said and what others will say about that speech.
The case is that of Majera – and it is about immigration and deportation, but it is about a lot more than that.
Majera was born in Rwanda and came to the United Kingdom as a child, but in 2006 he was convicted of serious offences, and when in prison he was issued with a deportation order.
He was then released on licence in 2015, but was again detained, and so he applied to the relevant tribunal for bail, which was granted in a court order.
So far, so complicated – though not an unusual set of facts in the ever-expanding caselaw about deporting foreign-born convicts.
But Majera then did something that prompted even more litigation and led ultimately to yesterday’s significant Supreme Court judgment.
Majera volunteered to work in a charity shop.
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You would think that it would be a good thing for a convict facing deportation to contribute to society by doing unpaid work for the public good.
But: no.
This was intolerable for the Home Office.
The problem, however, was that the tribunal order granting bail did not preclude Majera from working on a voluntary basis, but from paid employment or from any business or profession.
(The other bail conditions were strict: Majera could only do voluntary work as approved by his supervising officer – so not any voluntary work but only that which a state agent endorsed, and he was subject to a curfew.)
The Home Office, disregarding the judge’s order, formally notified Majera that he could not do voluntary work – and when objections were made, the Home Office came up with various excuses which they abandoned on legal challenge.
And so Majera challenged the Home Office decisions, as he was entitled to do so.
The Home Office, in response, came up with the argument that the judge’s order on bail was invalid, and thereby void, as it contradicted another statutory provision.
Accordingly, the Home Office contended, it was perfectly open to the Home Office to disregard the judge’s order and impose conditions of their own.
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Majera won his challenge.
But.
The Home Office appealed.
It would seem the prospect of Majera working in a charity shop was so unacceptable that public funds were justified in taking this to the Court of Appeal, and so the Home Office did, instructing a QC to do so.
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The Court of Appeal decided in favour of the Home Office.
Their reasoning was that if a decision is void then, well, it is void.
If the judge did not actually have the power to make the order that was made, then the order disappeared in a puff of legal magic, and it should be treated as if it never happened.
The order would have no effect, by the automatic operation of a lack of law.
Here the appeal judges relied on cases where subordinate legislation and administrative decisions were held to have no legal effect because they were ‘ultra vires’.
Majera appealed, and the Supreme Court agreed to hear his appeal.
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The Supreme Court, in a unanimous decision led by Lord Reed the president of the court, granted Majera’s appeal.
The decision is a wide-ranging survey of the law of ‘ultra vires’ and a detailed critique of vague notions such as ‘void’ and ‘null’ when applied to things that otherwise would have legal effect.
It is a judgment that will repay careful reading.
In essence: the supreme court held that orders of the court were special, and so should not have been lumped together with ‘ultra vires’ subordinate legislation and administrative decisions by the Court of Appeal.
A court order must be obeyed until and unless it is set aside by the court (or possibly overtaken by legislation).
It was not open to the home secretary – or anyone else – to pick and choose which orders were valid or invalid.
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This is a judgment that is significant on its own terms – but (on first glance) it also may be one with wider implications.
For example: one of the government’s current legislative proposals for judicial review is about giving courts the power to make ‘suspended’ quashing orders that would limit the legal effects of a finding of ‘ultra vires’.
Another government proposal is about limiting the scope of judicial review in the tribunal system – and this case shows that it is not only the individuals but the state itself that can take bad public law points in claims and defences.
This may not be a judgment that was intended to contribute to the discussion about judicial activism and the reform of judicial review, but it may be an important contribution nonetheless.
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But it is certainly an important case about the separation of powers.
For just as in a recent judgment in favour of the home secretary, Lord Reed said that is certain cases, the courts should accord ‘respect’ to the home secretary, this case in turn is about the respect the executive – and everyone else – should accord to the orders of the court.
Even the home secretary.
For just as the Lord Chancellor and the Attorney General are warning judges to keep off the executive’s lawn, this is the Supreme Court, in effect, telling the government to keep off the lawn of the courts.
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