Why does the government get defeated so often in immigration cases? Matt Williams explains that the language used in relevant legislation has been increasingly unclear, leaving it up to judges to debate the meaning and intention of policy

Williams, Matt

LSE Research Online

How	Parliament’s	failure	to	clearly	articulateimmigration	policy	forces	judges	to	take	controlWhy	does	the	government	get	defeated	so	often	in	immigration	cases?	Matt	Williams	explains	thatthe	language	used	in	relevant	legislation	has	been	increasingly	unclear,	leaving	it	up	to	judges	todebate	the	meaning	and	intention	of	policy.Political	scientists	struggle	to	explain	(and	predict)	how	judges	decide	cases.	This	task	is	no	morepressing	than	with	regard	to	the	hottest	of	topics.	In	Britain,	immigration	has	topped	the	list	of	mostlitigated	areas	of	public	policy	for	as	long	as	detailed	statistics	have	been	available.	And	immigration	has	hadextraordinary	political	impact.	So,	my	aim	in	a	recent	paper	was	to	try	and	explain	the	increased	rate	ofgovernment	defeat	in	immigration	cases.	Specifically,	from	1970	to	the	end	of	1994,	the	government	fought	78immigration	cases	at	a	senior	appeal	court	(Court	of	Appeal/	House	of	Lords)	and	was	defeated	25	times.	In	just17	succeeding	years,	up	to	2012	(now	including	the	UK	Supreme	Court),	there	were	174	appeal	cases	and	90government	defeats.The	government	and	some	media	outlets	have	suggested	this	changing	behaviour	was	a	function	of	judges’	ownpreferences,	increased	immigration,	and	the	Human	Rights	Act	1998	(HRA).	The	latter	has	drawn	especialcriticism,	with	its	protections	for,	amongst	other	things,	immigrants’	private	and	family	lives.	Amidst	broaderdemands	for	‘taking	back	control’	of	borders,	the	HRA,	bundled	in	with	membership	of	the	EU,	has	been	seen	asan	unacceptable	dilution	of	Parliament’s	sovereignty.But,	I	wanted	to	consider	what,	exactly,	‘control’	even	means	with	regard	to	borders	and	sovereignty.	Control	inany	democracy	begins	with	control	of	discourse.	Instructions	passed	between	institutions	must	be	clear,	andexecutable.	I	hypothesised	that	quite	the	reverse	has	happened	in	the	UK.	Despite	its	sovereignty,	Parliamenthas	been	enacting	more	law	of	greater	linguistic	indeterminacy.	And,	as	a	result,	judges	were	forced	to	use	otherrules	of	law	to	make	sense	of	it	all.	Judges’	increased	policy	role,	such	as	it	is,	has	been	a	function	of	problems	inthe	law.Let	me	give	some	examples	of	plain	and	indeterminate	legislation.	Plainness	is	exemplified	by	section	1	of	theBritish	Nationality	Act	1948:Every	person	who	under	this	Act	is	a	citizen	of	the	United	Kingdom…	shall	by	virtue	of	that	citizenshiphave	the	status	of	a	British	subject.Despite	my	abridgement,	this	section	is	short,	unqualified,	and	offers	a	complete	instruction.	Contrast	this	with	thedominant	deportation	tool,	still	used	to	this	day,	from	section	3	of	the	Immigration	Act	1971:(5)	A	person	who	is	not	a	British	citizen	is	liable	to	deportation…	(a)	if,	having	only	a	limited	leave	toenter	or	remain,	he	does	not	observe	a	condition	attached	to	the	leave	or	remains	beyond	the	timelimited	by	the	leave;	or	(b)	if	the	Secretary	of	State	deems	his	deportation	to	be	conducive	to	thepublic	good…This	section	contains	multiple	conditional	conjunctions	(if/or),	and	noun-qualifying	adjectives	(conducive	to	thepublic	good).	This	language	is	not	plain,	and	requires	significant	post-enactment	interpretation	to	be	enforced.Section	5	of	the	same	Act	goes	on	to	state:Where	a	person	is…	liable	to	deportation,	then…	the	Secretary	of	State	may	make	a	deportation	orderagainst	him.British Politics and Policy at LSE: How Parliament’s failure to clearly articulate immigration policy forces judges to take control Page 1 of 3		Date originally posted: 2017-07-31Permalink: http://blogs.lse.ac.uk/politicsandpolicy/parliamentary-language-and-immigration/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/Note	the	use	of	modal	and	enabling	verbs	here.	The	Secretary	of	State	‘may	make’	is	the	chosen	construction,not	‘shall	enforce’.	To	test	my	hypothesis	that	immigration	legislation	has	become	increasingly	indeterminate,	Iwrote	a	simple	computer	program	(available	to	test	here)	that	analysed	all	immigration	laws	enacted	since	thefirst	one	on	the	subject.	That	is	1,233	sections	of	legislation,	from	section	1	of	the	Aliens	Act	1905,	to	section	96of	the	Immigration	Act	2016.	Using	the	same	natural	language	processing	(NLP)	tools	used	in	search	engines,	Iidentified	four	prominent	causes	of	indeterminacy	in	law	–	adjectives,	conjunctions,	modal	verbs,	and	enablingverbs.	Note	that	it	would	be	extremely	difficult	to	measure	meaning	across	time,	as	meaning	is	not	fixed	inlanguage.	As	such,	my	approach	was	to	measure	meaninglessness	instead.	Figure	1	describes	the	findings:Figure	1	describes,	in	totals,	the	indeterminate	parts	of	speech	enacted	by	Parliament.	It	tells	us,	for	instance,that	3,138	adjectives	were	included	in	all	Acts	enacted	from	2005-09.	But,	so	what?	Why	should	this	haveanything	to	do	with	the	likelihood	of	government	defeat	in	court?	It	is	because	indeterminate	law	lacks	any	‘logicof	communication’,	as	Vivien	Schmidt	would	put	it.	This	means	there	is	no	clear	link	between	policy	aims,	anddecisions	taken	to	implement	policy.	Any	links	are	left	to	be	determined,	predominantly,	by	government	discretion.But	Parliament’s	sovereignty	and	the	rule	of	law	demand	that	legislation	be	the	final	word	on	policy	legitimacy.Any	reasonable	doubt	as	to	the	meaning	of	that	legislation	can	be	debated	in	court.	So	why	do	immigrantsincreasingly	win?	Because,	ruling	against	a	government	use	of	power	will	typically	be	the	more	conservativeinterpretation	of	Parliament’s	intent.	And,	because	constraining	a	government	assertion	of	power	is	in	the	best	ofinterests	of	natural	justice,	the	weaker	party	enjoys	the	benefit	of	any	doubt.British Politics and Policy at LSE: How Parliament’s failure to clearly articulate immigration policy forces judges to take control Page 2 of 3		Date originally posted: 2017-07-31Permalink: http://blogs.lse.ac.uk/politicsandpolicy/parliamentary-language-and-immigration/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/Which	parts	of	speech	are	most	likely	to	encourage	judges	to	rule	against	the	government?	It	is	those	that	cannoteasily	be	pinned	down.	Adjectives	can	be	defined	by	judges	in	a	case	and	will	less	likely	lead	to	further,successful,	appeals	in	future	cases.	Enabling	verbs	(make/amend)	are	used	to	grant	discretion	to	government,but	that	discretion	will	typically	have	been	legitimately	delegated	by	Parliament.	It	is	conjunctions	(if/or)	andindeterminate	modal	verbs	(may/might)	that	create	enduring	indeterminacy	when	describing	powers.Conjunctions	allow	multiple	contexts	to	be	covered	by	the	same	text.	Indeterminate	modal	verbs	give	broadleeway	as	to	when	and	how	far	discretion	can	be	used.	It	was	my	conjecture	that	these	parts	of	speech,	takenwith	reforms	to	lower	courts,	offered	the	best	model	for	government	losses	on	appeal.Using	logit	regression	analyses,	I	modelled	the	outcomes	in	all	252	immigration	appeal	cases	heard	between1970-2012.	Findings	suggest	that	conditional	conjunctions	in	disputed	law	increased	the	likelihood	of	an	anti-government	ruling	by	a	maximum	of	fourteen	times.	And	indeterminate	modal	verbs	increased	the	likelihood	of	ananti-government	ruling	by	a	maximum	of	ten	times.	A	model	including	both	of	these	parts	of	speech,	with	dummyvariables	to	capture	periods	of	reform	to	immigration	tribunals,	predicted	73%	of	case	outcomes	correctly.	Otherimportant	variables	were	also	tested	and	controlled	for,	including	the	use	of	human	rights	law,	and	whether	theimmigrant’s	life	was	thought	to	be	at	risk.	Neither	of	these	variables	presented	sufficient	correlative	significance	toreject	the	null	hypotheses.The	upshot	is	that	judges	increasingly	rule	against	the	government	because	Parliament	has	notably	lacked‘control’	of	its	language.	It	is	legitimate	for	judges	to	intervene	in	policy	where	its	basis	in	law	can	be	doubted.Therefore,	slamming	judges	for	‘liberal’	or	‘activist’	rulings,	is	not	founded	on	convincing	reason	or	evidence.	IfParliament	is	to	be	sovereign,	it	needs	to	control	what,	and	how,	it	speaks._________Note:	the	above	summarises	the	author’s	article	in	British	Politics	(DOI:	10.1177/1369148117705272)About	the	AuthorMatt	Williams	is	Access	and	Career	Development	Fellow	at	Jesus	College,	University	of	Oxford.			Featured	image	credit:	Pixabay/Public	DomainBritish Politics and Policy at LSE: How Parliament’s failure to clearly articulate immigration policy forces judges to take control Page 3 of 3		Date originally posted: 2017-07-31Permalink: http://blogs.lse.ac.uk/politicsandpolicy/parliamentary-language-and-immigration/Blog homepage: http://blogs.lse.ac.uk/politicsandpolicy/

How Parliament's failure to clearly articulate immigration policy forces judges to take control

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