Reflections on unlawfulness

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This morning, Mr Justice Ouseley handed down judgment in Detention Action vs Secretary of State for the Home Department.  Extraordinarily, he finds that the Detained Fast Track as it currently operates is unlawful.

This is hugely significant.  Both previous challenges to the Fast Track have noted its problematic nature but declined to find the system unlawful.  This is the first time that the Fast Track has been found to have crossed over into unlawfulness.

The Judge sets out that the test of unlawfulness is whether the system carries an “unacceptable risk of unfairness.”  He goes on to find that the unjustifiable delay in providing lawyers to people in detention means that the process as currently operated crosses that line.

He finds that early legal advice is so important because of the deficiencies of the system elsewhere.  As independent monitoring bodies have been claiming for years, the screening process and subsequent safeguards do not operate effectively to ensure that vulnerable people are not wrongly detained and processed on the Detained Fast Track.

However, Mr Justice Ouseley does not find that the Fast Track is in principle unlawful.  He agrees that detaining straightforward cases for an accelerated procedure is lawful, and does not accept that the problematic safeguards are in themselves unlawful.

Only the way that the Fast Track currently operates is unlawful.  The judgment sets out steps that the Home Office could take that would make the process lawful.

So we have mixed feelings.  We are delighted that our clients’ complaints about the process they have been going through have been vindicated.  But it is disappointing that the serious shortcomings identified in the judgment have not been found to be in themselves unlawful.

The judgment is also, incidentally, a ringing endorsement of the importance of high quality early legal advice.  The Judge finds that at each stage “it has been the prospective use of lawyers, independent, giving advice, taking instructions having gained the client’s confidence, which has seemed to me the crucial safeguard, the crucial ingredient for a fair hearing”.

Minister of Justice Chris Grayling, as he proceeds with dismantling legal aid for vulnerable people across our society, should take note.