Purpose, policy and publication: Analysis of Lumba ruling
30 March 2011
Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?
We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.
The main issue was the Padfield question of statutory purpose, which itself divided into a debate over whether action by a public authority can be said to be “unlawful” because it violates principles of public law and a policy, or whether it is only “unlawful” because it goes beyond the scope of the statutory power itself.
The other key discussion is whether public law principles such as reasonableness and lawfulness (statutory purpose) are applicable to determining the lawfulness of the exercise of a statutory power of arrest not only in proceedings for judicial review but also in an action for damages for false imprisonment.
Much of the judgment is occupied with the question of vindicatory damages, a somewhat incohate concept which occupies the middle ground between compensatory and exemplary or punitive damages. Since an award of this sort often constitutes a windfall for the claimant out of the public coffers, its justifiability in a recession is questionable, to say the least. But that is a subject for another discussion.
The question of lawfulness and statutory purpose
Lord Dyson, giving the lead judgment for the majority, adopted the view that detention must be for the statutory purposes of making or implementing a deportation order and for no other purpose. Well established though this approach is, it is by no means immune from attack. It puts a considerable brake on legislative power and some, like Lord Philips, see it as being a wholly unjustified intrusion into executive discretion.
Nobody argues that Parliament has dispensed an unlimited power to detain, but the Court was divided as to where where the limits fall. The so-called “Hardial Singh” principles do not say, in terms, that the Secretary of State must intend to deport the person and can only use the power to detain for that purpose nor that the deportee may only be detained for a period that is reasonable in all the circumstances. What they do say is this:
(i) the power to detain is given in order to enable the machinery of deportation to be carried out
(ii) the detention must be limited to a period which is reasonably necessary for that purpose
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (para 6)
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. (para 7)
There is some ambiguity in these judicial limitations on the statutory power. They may be concerned only with the length of time that was reasonably necessary to effect deportation and not the purpose of the detention. On the other hand a wider meaning could attach to them, which means that a person can only be lawfully detained for the purpose of facilitating deportation, so that no other factor can be advanced as a justification to legitimise detention.
It is hard to see how the risk of the risk of re-offending can be the determinant factor in deciding how long it is reasonable to detain a FNP (as Lord Dyson appears to accept at para 107), when it could not properly be regarded as the determinant, or even the sole reason for detaining him in the first place. This encapsulates what Lord Phillips refers to as the “conceptual difficulty” inherent in laying the wider interpretation on the Hardial Singh test for lawfulness.
Here instead is Lord Phillip’s interpretation of the power to detain, as granted by the 1971 Act, which, he says, reflects article 5(1)(f) of the ECHR:
The Secretary of State is not required to permit an immigrant who has unlawfully entered this country to roam free. Schedule 3 permits her to detain the immigrant for as long as she reasonably requires in order to decide whether he should have leave to enter. If he is not given leave to enter she may detain him for as long as she reasonably requires to effect his deportation, provided always that deportation is a practical possibility.
Indeed anything other than a strained reading of section 2.1 of Schedule 3 any other way would suggest that continued detention is required, unless the Secretary of State orders otherwise:
Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation
Lord Brown in his dissenting opinion turns this appeal on its head and asks – assuming that the Secretary of State’s lawful policy in effect dictates the detainee’s detention, why,
one wonders, would a decision to release him not itself be in breach of the Secretary of State’s public law duty? 
The answer of course is that for lack of a claimant no breach could ever be established, but the question is not merely a rhetorical one. Just because a cause is not justiciable by individuals does not mean that it has no basis in law.
In any event the majority was of the view that this provision should not be construed as a presumption of detention pending deportation, even though these are unsettled waters as far as the caselaw is concerned. In R (Sedrati) v Secretary of State for the Home Department  EWHC Admin 418 the Court of Appeal said tatt there was “no reason in principle” why the 1971 Act should not contain a presumption of detention, since it clearly does require continued detention unless the Secretary of State otherwise orders:
A presumption that those who have committed serious crimes (e.g. most of those listed in Cullen 1 and 2) should be detained is unobjectionable. (para 65)
Lord Dawson found this “somewhat puzzling” ; in his view these sections simply give the Secretary of State a discretion to detain, they do not create a presumption at all. Whatever interpretation is favoured, however, the Achilles’ heel in the government’s case here was the discrepancy between the guidance given to its officers and the published policies which suggested that detention should be used sparingly.
Lawfulness and policy
There is an important difference in approach between the majority and minority views in this judgement as to whether statutory purpose can be distinguished here from the question of official policies, or whether they are one and the same thing. To put it another way, the question whether a published policy vitiates the lawfulness of public action depends on the interpretation of the statutory purpose. The majority view was that the detention was outside the scope of the powers granted by the 1971 Act. The dissenters found it to be within the statutory purpose and therefore the question that fell to be asked was:
What is the effect of a decision to take action that falls within a power conferred by statute but which conflicts with a published policy as to the manner in which that power will be exercised?
So put, the discrepancy between unpublished versus published policies loses significance and just becomes a measure of the extent to which a policy with a presumption towards detention is permissible. And to say that inconsistent public policy nullifies the lawfulness of public action promotes policy to the level of delegated legislation.
It may be that email and other correspondence disclosed to the court suggested that there was a deliberate decision not to publish the hidden policy. As Lord Dyson says, senior officials in the Home Department could not have known that the policy that was being applied was bound to be struck down as unlawful, but they certainly knew that it was “vulnerable to legal challenge” and that it did not accord with the published policy. Unattractive though this attitude may be, is it enough to take the Secretary of State’s decision to detain out of his jurisdiction?
This brings us round to Anisminic, the 1969 landmark ruling on errors of law in public action. In short, this ruling established that when an administrative authority has the power to decide particular questions defined by the statute conferring the power, and the authority asks itself and answered the wrong question, it does something that the Act did not empower and its decision is a nullity.
Public law principles and common law torts
It was argued on behalf of the Secretary of State that a qualification or exception should be made to the Anisminic equation for the purposes of a private law claim for damages for false imprisonment, so that only a serious public law error significant public law error would equate with lack of jurisdiction. The venerability of the Anisminic ruling should not lead to its overextension:
The context in which it equated wrongful exercise of jurisdiction with excess of jurisdiction (the court’s response to an ouster clause in the Foreign Compensation Act 1950) was far removed from a private law claim for damages for false imprisonment. (Lord Walker )
and Lord Phillips expressed his concerns as to the consequences of this “absolutism”
if a minister’s unjustified failure to comply with his policy is to be treated as an unlawful act that subjects him to potential liabilities in private law independently of the discretionary remedies of judicial review.
For these reasons he was not prepared to commit himself on the question of damages. Nevertheless he did find, in spite of these misgivings, that
the detention of a person contrary to the Secretary of State’s published policies was both a violation of principles of public law and unlawful. Lord Brown disagreed strongly on this point, observing that this finding of a mere “technical” tort, hardly meriting damages, “seriously devalue[d] the whole concept of false imprisonment.”
Certainly this is a public law landmark in the history of the tort of unlawful imprisonment but the lengthy discussion on this and the related issue of damages may turn out to be something of a red herring in this important ruling. What merits close attention, and what will certainly be a matter of considerable concern amongst legislators and government lawyers, is the significance attached to the majority to the operation of the so-called “secret” policy and its consequences for the (otherwise lawful) decision of the Secretary of State to detain the appellants. After all, none of them had legitimate grounds for challenging their detention (because they would have been detained under the published policy anyway). So why, in Lord Phillips’ words, does
the introduction of the secret policy gave those whose detention resulted from it cause to challenge the legality of their detention, but not those whose legitimate expectation was that they would be detained under the application of the published policy [?] 
The official “muddle” that gave rise to this saga was probably not the outcome of some conpiracy by the government to shift the blame for the release of convicted aliens from Westminster to the courts, but simply a picture of “bureaucracy at its worst with the best proving constantly the enemy of the good.” It is likely that the consequence of this ruling will lead to more, not less, boilerplating activity by this and future administrations at great cost to transparency and honesty at the public level, particularly where the advice, though necessary, is undeniably unpalatable.
Sign up to free human rights updates by email, Facebook, Twitter or RSS