Mental Capacity in Immigration: Effective Access to Justice
| Author | Bernard McCloskey |
| Position | Judge of the Court of Appeal in Northern Ireland |
| Pages | 66-74 |
IRISH JUDICIAL STUDIES JOURNAL
[2019] Irish Judicial Studies Journal Vol 3(2)
66
MENTAL CAPACITY IN IMMIGRATION:
EFFECTIVE ACCESS TO JUSTICE
Author: The Rt. Honourable Lord Justice Bernard McCloskey, Judge of the Court of Appeal in Northern
Ireland
Introduction
In the world of litigation, in its multifarious forms, issues of mental capacity almost
invariably raise questions of effective access to justice and procedural fairness. While
international human rights instruments such as the European Convention on Human
Rights and Fundamental Freedoms
1
2
can sometimes wield some influence in resolving questions of this kind resort to
the riches of the common law frequently provides the best solution. This is so because one
of the greatest strengths and successes of the common law is the contribution that it has
made to the development and protection of fair hearing (or due process) rights. It may be
said that such rights are of elevated importance in every context where the litigant or,
indeed, a witness, suffers from some form of mental incapacity. And every such case places
the spotlight firmly on the presiding judge.
The Common Law and Rights of Access to Court
Access to the Court has been described as a right of constitutional stature.
3
Thus it is
possible, for example, to challenge by judicial review measures such as excessive Court fees,
invoking this constitutional right. Notably, it has also been possible to bring challenges of
this nature without any reliance on the common law. In R (Unison) v Lord Chancellor
4
the
challenge to the instrument of subordinate legislation whereby fees were introduced in
Employment Tribunals for the first time
5
was based substantially on principles of EU law.
In particular, the challenge invoked the established principle of EU law, now enshrined in
Article 47 of the Charter of Fundamental Rights of the EU,
6
that persons who claim that
their rights under EU law have been infringed must have access to an effective remedy for
the breach.
The foregoing may be considered a paradigm illustration of the valuable contribution to the
UK legal system, which is now under threat in the Brexit process. Though the common law
was not expressly invoked, its influence in the development of this principle of EU law is
readily ascertainable. Thus, in Johnston v Chief Constable of Royal Ulster Constabulary
7
the ECJ
1
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rig hts,
as amended) (ECHR), Part of Domestic Law via the Human Rights Act 1998.
2
Convention on the Rights of the Child (adopted 20 November 1989, entered into fore 02 September 1990) 1577 UNTS
3. UNHRC: barely visible in the domestic law of the United Kingdom. And see Section 55 of the Borders, Citizenship
and Immigration Act 2009.
3
R v Lord Chancellor, ex parte Witham [1998] QB 575.
4
[2015] EWCA Civ 935.
5
By the Employment Appeal Tribunal Fees Order 2013 (SI2013/1893).
6
Charter of Fundamental Rights of the European Union [2012] OJ C326/02.
7
Case 222/84, [1987] QB 129, [17] (page 147).
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