Cummings "furious" that the court prevented deportations

Simler LJ

Mr Dominic Cummings is a political strategist and chief special adviser to Prime Minister Boris Johnson. His degree of "backstage" influence appears to be considerable.

It is reported that Cummings is "furious" that the Court of Appeal issued an order to prevent a deportation flight taking place - ITV News 11 February 2020. The article further reports that Cummings described the Court of Appeal's order is “a perfect symbol of the British state’s dysfunction.” He added that there must be “urgent action on the farce that judicial review has become.”

I have commented previously about the obvious risks
to the rule of law arising from attitudes within the present government. Those attitudes may have hardened with the recent Cabinet reshuffle. Terms of reference and the membership of the planned Constitution, Democracy and Rights Commission have yet to be announced.

The law relating to deportation is a complex area and is well described in a December 2019 House of Commons Research Briefing.

The deportation flight in question was planned to take place from Heathrow at 0630 hrs on 11 February - The Guardian 11 February.  Around 50 individuals were to be deported to Jamaica but the Court of Appeal ordered the Home Office not to remove anyone scheduled to be deported “unless satisfied [they] had access to a functioning, non-O2 sim card on or before 3 February.”  There had been a problem with the O2 phone network at the Heathrow detention centres for some time and many detainees had been unable to exercise their legal right to contact their lawyers.

Detention Action is a body dedicated to supporting those held in immigration detention and it campaigns for fundamental reform.  Detention Action has provided links to the Court of Appeal orders - 10 February and 11 February.

The 10 February Order was issued by Lady Justice Simler who stated that she could "not be confident that there were adequate alternative means of accessing legal advice during a minimum of 5 working days before the charter flight to Jamaica."

In the 11 February Order, Simler LJ noted that it was the government's published policy to give detainees a minimum of 5 working days to enable them to seek legal advice. The way they could do that was by giving them sim-cards but those were not provided until at least 2 days into the minimum period. It is arguable that the 5 days is necessary to ensure access to justice and is not simply a matter of administrative convenience. The 10 February order was kept in force.

The Orders did not permanently prevent the deportations and they may well take place once the present problem is resolved. The point is that the court upheld what was actually government policy (the 5 days) intended to enable potential deportees to seek legal advice.  It ought to be unnecessary to say it but deportation is a very serious matter for the individual particularly when he or she has family and perhaps children in the UK and, in some cases, where the deportee has been resident in the UK for many years. It is also reported that some deportees can be at serious risk of physical attack in the country to which they are deported.

The rule of law is precious and entails the basic fact that government is required to comply with the law. The law permits deportation and I do not argue that deportation is necessarily wrong. That would depend on all the cirucmstances of particular cases. However, the law has to be applied with due regard to legal process and the basic rights of individuals.

The rule of law is coming under attack by those within or close to government who seek to curb an "overactive" judiciary, gain political influence over judicial appointments, rein back judicial review, attack and reform human rights protection, and enhance executive power within the UK. This agenda is, in my view, real and the signs are to be seen by anyone but the most blinkered. 

10 February - The full judgment can be found here.

11 February - A full copy of the order is here.

The Guardian 12 February - Brexit's war on the law - The court of appeal’s decision to halt the deportation of detainees unable to exercise their legal right to contact their lawyers has been impugned as vexatious by Downing Street. The door is being opened to a weakening of this protection against an overmighty state on the grounds that legal challenges to ministerial decisions were being used, in Boris Johnson’s words, to “conduct politics by another means”.