The country's senior judge risked a new battle with ministers when he launched an unprecedented attack yesterday against a central plank of the Government's immigration reform programme.
Lord Woolf, the Lord Chief Justice, described plans to block the courts from reviewing decisions to deport asylum-seekers as "fundamentally in conflict with the rule of law". He said the move would be a "blot on the reputation of the Government" and predicted that it could trigger a widespread campaign for a written constitution.
In a speech at Cambridge University's Faculty of Law, he also made for the first time a direct public criticism of the Lord Chancellor, Lord Falconer of Thoroton. And, using remarkably informal language, he described the cabinet minister as a "cheerful chappie", to the surprise of his audience. "It is particularly regrettable that the Lord Chancellor ... should find it acceptable to have responsibility for promoting this clause," said Lord Woolf.
His choice of language and hard-hitting criticism is bound to break the uneasy truce between ministers and the senior judiciary over the Government's constitutional reforms.
He said: "So far we have coped without a written constitution. I am not over-dramatising the position if I indicate that, if this clause [to remove the appeal rights of asylum-seekers] were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution."
He added: "Immigration and asylum involve basic human rights. What areas of government decision-making would be next to be removed from the scrutiny of the courts?What is the use of courts if you cannot access them?
"The response of the Government and the House of Lords to the chorus of criticism of clause 11 will produce the answer to the question of whether our freedoms can be safely left in their hands under an unwritten constitution."
Lord Woolf also criticised government proposals for a new supreme court to replace the House of Lords as the highest court in the land. He said that the plan conceived by ministers would create a "second-class" institution which would be the "poor relation" of others around the world.
He also sounded a warning note, arguing that the package of constitutional reforms, set out in a Bill published last week, could lead to the Home Office becoming too powerful. "I am worried about the Department for Constitutional Affairs becoming a subsidiary of the Home Office or unable to compete with the dominance of the Home Office," Lord Woolf said.
A spokesman for the Department for Constitutional Affairs said: "The Asylum and Immigration Tribunal will be a new body organised in a more flexible way to ensure we get the benefit of senior judicial input at an earlier stage.
"It will be able to correct clear errors of law on application by either party. This will be a fair and proportionate system that is fully compliant with human rights legislation."Reuse content