[View without highlighting]
[Printable RTF version]
[View ICLR summary:  WLR(D) 338]
||Neutral Citation Number:  EWHC 2512 (Admin)
||Case Nos: CO/9832/2013, CO/11280/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
|| R (on the application of Habib Ignaoua)
||- and -
||Secretary of State for the Home Department
Stephanie Harrison QC and Amanda Weston (instructed by Birnberg Peirce and Partners) for the Claimant
Rory Phillips QC and Julian Blake (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 18 July and 1 August 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Cranston :
- This claim concerns a certificate issued by the Secretary of State for the Home Department ("the Secretary of State") on 16 July 2013 under a power conferred by the Justice and Security Act 2013. The Secretary of State contends that the certificate has the effect of terminating the judicial review the claimant has had ongoing in this court since 2010, challenging his exclusion from the United Kingdom on national security grounds. On her case there can be no objection to this since the claimant can immediately issue proceedings in the Special Immigration Appeals Commission ("SIAC"), which has all the powers of this court to conduct a judicial review of his exclusion.
- The claimant submits that there is no instance previously where there has been a power to terminate existing proceedings for judicial review. In his submission the certificate did not in fact terminate the judicial review. That would be to oust the inherent jurisdiction of the High Court to regulate its own proceedings. What is necessary is for this court to decide that the certificate is lawfully made and not an abuse of process before it can take effect. The claimant points to the fact that as yet there are no procedure rules to conduct this type of proceeding in SIAC. In particular SIAC has no power to hold a closed evidence procedure without the rules. The statutory provisions, says the claimant, cannot be read to enable the Secretary of State to issue a certificate when there are no such rules. So on the claimant's case any proceedings he lodges in SIAC cannot, in practice, continue and will not be able to do so for some considerable time. Compatibly with articles 8 and 13 of the European Convention on Human Rights ("the ECHR" or "the Convention") the claimant must be provided with an effective remedy.
- It will be evident that the issues in this case are therefore issues of law as to this court's jurisdiction. The claimant has raised a separate matter of whether the Secretary of State's exercise of discretion to issue the certificate in this case is an abuse of her power, an abuse of the processes of the court, or is otherwise unlawful. In particular it is asserted that, if successful, the Secretary of State's decision to certify means that she has avoided judicial scrutiny of the public interest immunity ("PII") grounds she has claimed for withholding the material basis for the exclusion decision which the claimant has been challenging in his judicial review in this court. It is also said that the Secretary of State has denied the claimant the benefit of the balancing exercise in assessing whether the PII claim should be upheld. However, this separate matter of the lawfulness of the Secretary of State's decision to certify in this case is the subject of new judicial review which the claimant has recently lodged with this court. I need say no more about it in this judgment.
- The claimant was born in December 1960 and is a Tunisian national. He arrived in the United Kingdom in early 2004 but was extradited to Italy in 2008 since when he has not been able to return to the United Kingdom for reasons which will become apparent. Members of his family are in the United Kingdom, including his wife, a British citizen, and a son by a previous marriage, also a British citizen. After he arrived here in 2004 he claimed asylum. There was an interview for his asylum claim. Despite letters from his solicitors the Secretary of State failed to make a decision on his application.
- Then on 4 June 2007 a judge in the Court in Milan issued a European Arrest Warrant alleging that the claimant, when living in that city, had recruited North Africans to travel to Afghanistan for military training and had used forged currency to fund this activity. There had been a counter-terror operation by Italian police which had drawn in a large number of Tunisian expatriates. The claimant was alleged to be a member of an organisation for the purposes of terrorism. Within a few days the claimant had been arrested in this country under the warrant. There were warrants for the arrest of two other Tunisian nationals, Mohamed Salah Ben Hamadi Khemiri and Ali Ben Zidane Chehidi. An extradition hearing took place before District Judge Evans at the City of Westminster Magistrates Court on 20 May 2008, who ordered extradition of all three Tunisians. An appeal to the Divisional Court (Pill LJ and Rafferty J) was dismissed:  EWHC 1988. The court decided that, on the return of the applicants to Italy, there was no real risk of their onward transmission to Tunisia in breach of Article 3 of the European Convention on Human Rights ("the ECHR" or "the Convention"). An application to the court for a certificate on a point of law of general public importance was dismissed on 30 September 2008.
- There had been an application to the European Court of Human Rights under rule 39 of the Rules of Court for an order preventing the extradition of the claimant and the other two to Italy. The ground was that, if extradited, there would be a real risk of onward removal to Tunisia where they would be subjected to treatment contrary to Article 3 of the ECHR. The Serious Organised Crime Agency undertook not to return the applicants to Italy pending the determination of that application. The Strasbourg Court refused the application on 7 October 2008 on the understanding "… that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention". Just before midnight on 7 October 2008 King J granted an ex parte without notice injunction preventing the applicants' extradition until determination of habeas corpus applications. These came before a Divisional Court (Keene LJ and Owen J) which on 30 October refused the applications. The court held that a habeas corpus application was not to be used to overturn the extradition order and that the fresh evidence did not meet the requirements for a re-opening of the Divisional Court's previous decision:  EWHC 2619 (Admin).
- The claimant and the two other Tunisian nationals were thus extradited to Italy in late 2008. Over two years later, on 8 July 2010, the Italian court acquitted the claimant of the charges for which he had been extradited. On 9 and 21 July 2010 the European Court of Human Right issued Rule 39 interim relief so that the Italian authorities would not deport him to Tunisia. On 8 October 2010 the claimant made an asylum claim in Italy. The following month the Italian authorities requested the Secretary of State to take the claimant back under Article 16 of the Dublin Regulation. Just over a week later, on 30 November 2011, the Secretary of State declined to do this. She explained that in her view the Dublin Regulation did not apply: she had never reached a decision on his asylum claim, and in any event the claimant was in Italy at the request of the Italian authorities. Subsequently, the Italian authorities accepted that they had the responsibility for his asylum claim.
- Meanwhile, on 29 July 2010, the Secretary of State had informed the claimant that he had been excluded from the United Kingdom, with no right of appeal, on the ground that his presence in the country would not be conducive to the public good for reasons of national security. The Secretary of State had assessed him as being involved in facilitation and radicalisation activities for terrorist purposes. The claimant's solicitors wrote that under the Dublin Regulation the United Kingdom was the Member State with the responsibility for determining his asylum claim. The Secretary of State responded that in her view the asylum application had lapsed when he was extradited.
- The application for judicial review before me was lodged on 28 October 2010, challenging the decision to exclude. The Secretary of State lodged her Acknowledgment of Service on 18 February 2011. On 25 March 2012 Collins J gave directions and made observations. As a result the Treasury Solicitor provided the court with two documents. The first was a copy of the Secretary of State's refusal of the Italian request under the Dublin Regulation and the second, a copy of the letter sent to the claimant's solicitors on 31 March 2011 confirming her decision to exclude him from the United Kingdom. The case was listed for hearing before Collins J on 6 April 2011. At the end of the hearing counsel were requested to agree a form of order. Unfortunately that was not possible and the case was again listed before Collins J, for mention, on 12 July 2011. In the result Collins J confirmed the grant of permission to apply for judicial review; the claimant was ordered to serve amended grounds of claim within 14 days; and the Secretary of State was required to file and serve detailed grounds in response within 35 days. The parties complied with those directions. Essentially the claimant challenged the Secretary of State's decision to exclude him from the United Kingdom on grounds of national security; her failure to determine his asylum application; her failure to re-admit him to the United Kingdom; and her failure to accept responsibility for determining his asylum claim under the terms of the Dublin Regulation.
- The case was to be listed on the first open date in Michaelmas Term 2011 for a further hearing to determine, in particular, whether closed material could be relied on; any claim by the Secretary of State to withhold documents on public interest grounds; the role of any special advocate; and further directions. Through error in the court office there was a lengthy delay before the case was listed. On 31 May 2012 Simon J approved an order agreed by the parties inviting the Attorney-General to appoint a special advocate; for the Secretary of State to file and serve evidence in response to the claim; and relating to any PII certificates in respect of material which the Secretary of State would seek to withhold. A special advocate was appointed and the case was listed for a PII hearing on 20 May 2013. That was adjourned by agreement of the Secretary of State and the special advocate. The claimant's legal representatives complain that they were not informed. The case was then re-fixed for 18 July 2013 for the PII issues to be heard.
- On 12 July 2013 the Secretary of State applied to vacate the 18 July hearing on the basis that the claimant had open to him a new route to challenge her decision to exclude him from the United Kingdom. That was by way of an application to SIAC as a result of the Justice and Security Act 2013, which came into force on 25 June 2013. Moreover, under that Act the Secretary of State could certify the case so that this court would no longer have jurisdiction in the matter. The claimant opposed the application, supported by the special advocate. On 16 July 2013 Ouseley J refused the Secretary of State's application: the parties had long been working towards this hearing and there seemed no compelling reason not to press ahead with it.
- Given the court's decision on the adjournment application, the Secretary of State certified the case under the Justice and Security Act 2013 the same day, the 16 July. In a letter to the claimant's solicitors on 17 July she informed them of the certification, explained that certification terminated the judicial review proceedings in this court, and invited the claimant to apply to SIAC to challenge his exclusion, including the SIAC application forms with the letter. The court was informed of the Secretary of State's certification on the eve of the hearing. The claimant's solicitors requested that the hearing take place. At the hearing Ms Harrison QC for the claimant explained that she wished to challenge the certification on the basis that it did not oust the jurisdiction of the court; it was an abuse of power and involved the exercise of a statutory power for an improper purpose; and it could not operate retrospectively. Both sides accepted that a short adjournment was necessary for these arguments to be elaborated. Consequently the case was adjourned until the 1 August. Whatever the merits of the claimant's arguments, I indicated the desirability of maintaining momentum in relation to the PII aspects of the case given the work which had already been invested.
- Before the adjourned hearing was resumed, on the 25 July 2013, the claimant lodged a judicial review challenging the decision of the Secretary of State to certify in his case. In broad outline the grounds are that the decision constitutes an abuse in his case because certification produces a conspicuously unfair outcome and is a deliberate attempt to circumvent the supervisory powers of the court. At one point I thought that the new judicial review could be coupled with the existing matter, and made an order to that effect. It soon became clear that this was overly optimistic, not least because the 1 August 2013, when the hearing was to resume, was the first day of the judicial vacation, and, with only a few judges on duty, another case had to be listed before me that afternoon. Thus at the outset of the resumed hearing I ruled that the argument should be confined to the issue of law as to the power to certify and that the exercise of that power in this claimant's case would have to wait until after that matter was resolved. During the course of her argument at the 1 August hearing Ms Harrison QC referred to what she said was the exercise of the discretion to certify in this case to avoid further disclosure through the PII process, which could well have meant that the Secretary of State had to withdraw her direction about the claimant's exclusion from the United Kingdom. She also referred to what she said was the conspicuous unfairness in further delay to a resolution to this claimant's position. For better or worse, consideration of these matters must be deferred until when the new judicial review is heard.
- The background to the statutory provision at issue in this case lies in the decision AHK v Secretary of State for the Home Department  EWHC 1117 (Admin), where Ouseley J considered whether and how a closed material procedure could be held in a judicial review where issues of national security arose. In that case the Secretary of State had refused to grant the claimants' British citizenship on the grounds that she was not satisfied that they were of good character. The reasons given for the refusal were sparse because disclosure was said to be contrary to national security. Ouseley J held that there could be no closed material procedure, even by consent, save as is inherent in the PII process: . He observed that the court could not fairly review the Secretary of State's decision because, following a PII hearing, the court would not have before it all the information upon which the original decision was taken. It would be impossible to know whether her decision was irrational or unlawful if the court could not know what matters she had considered: . It followed that "either the claimant loses, or loses in all realistic probability, or there is a closed material procedure:" . Further, Ouseley J held that because of the principles of disclosure and open justice a closed material procedure was not available as a matter of the court's common law jurisdiction: -. He concluded that "this rather unsatisfactory outcome should be remedied in Parliament, by provision for a [closed material procedure], at least in this sort of case": .
- Parliament's response to the absence of a closed material procedure in judicial review proceedings of this type is contained in section 15 of the Justice and Security Act 2013. In fact the problem identified by Ouseley J was part of a larger issue which had been addressed in the Justice and Security Green Paper, Cm 8194, 2011. This was that in the government's view there needed to be a closed material procedure so courts could hear sensitive cases in closed session where national security issues were raised. Thus part 2 of the Justice and Security Act 2013 is entitled "Disclosure of sensitive material", and the first section provides for a general closed material procedure. Section 6 enables a court seized of relevant civil proceedings including judicial review, to decide that there will be a closed hearing. The second section of part 2, where section 15 appears, deals with the closed material procedure in immigration.
- Section 15 of the Justice and Security Act 2013 thus amends the Special Immigration Appeals Commission Act 1997 by incorporating new sections 2C and 2D. Section 2C applied in this case and provides that when the Secretary of State has decided to exclude certain persons from the United Kingdom on the grounds of public good and the decision is made in reliance on information which in her opinion should not be made public for specified reasons, the person may apply to SIAC to have the direction set aside. In considering the matter SIAC is invested with the powers and remedies obtaining in judicial review proceedings.
"2C.— Jurisdiction: review of certain exclusion decisions
(1) Subsection (2) applies in relation to any direction about the exclusion of a non-EEA national from the United Kingdom which—
(a) is made by the Secretary of State wholly or partly on the ground that the exclusion from the United Kingdom of the non-EEA national is conducive to the public good,
(b) is not subject to a right of appeal, and
(c) is certified by the Secretary of State as a direction that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public—
(i) in the interests of national security,
(ii) in the interests of the relationship between the United Kingdom and another country, or
(iii) otherwise in the public interest.
(2) The non-EEA national to whom the direction relates may apply to the Special Immigration Appeals Commission to set aside the direction.
(3) In determining whether the direction should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.
(4) If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.
(5) In this section—
"non-EEA national" means any person who is not a national of an EEA state, and references in this section to the Secretary of State are to the Secretary of State acting in person."
- There is an order-making power in section 19 of the Justice and Security Act 2013 to cover directions to exclude persons prior to the commencement of section 15.
"19. Consequential and transitional etc provision"
(1) Schedules 2 and 3 (which make consequential and transitional provision) have effect.
(2) The Secretary of State may by order made by statutory instrument make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act."
- Schedule 3, paragraph 4 of the Act then provides that the Secretary of State may make an Order under section 19(2) applying to exclusion decisions before the commencement of section 15. The Secretary of State may certify under section 2C(1) and terminate existing judicial review proceedings related to the certified decision.
(1) An order under section 19(2) may, in particular, make provision about the application of section 15, and paragraphs 9, 10 and 12 of Schedule 2, to any direction or decision of the Secretary of State which—
(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997, and
(b) was made before the section 15 commencement day.
(2) Provision of the kind mentioned in sub-paragraph (1) may, in particular, provide for—
(a) the Secretary of State to certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after the section 15 commencement day, any direction or decision falling within sub-paragraph (1),
(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 15 commencement day).
- Along with section 15 of the Act, the Justice and Security Act (Commencement, Transitional and Savings Provisions) Order, SI 2013 No 1482 ("the Order") came into force on 25 June 2013. It provides as follows:
(1) This article applies to any direction or decision of the Secretary of State which–
(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997 1, and
(b) was made before 25th June 2013.
(2) The Secretary of State may certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after 25th June 2013, any direction or decision to which this article applies.
(3) A certificate issued under paragraph (2) terminates any judicial review proceedings or proceedings on appeal from such proceedings which relate to the direction or decision to which the certificate relates (whether the proceedings began before, on or after 25th June 2013."
- The Special Immigration Appeals Commission Act 1997 ("the 1997 Act") establishes SIAC as a superior court of record: s. 1(3). In addition to section 2C set out above, jurisdiction is conferred on SIAC in relation to other matters such as decisions on naturalisation and citizenship in section 2D. Section 5 of the Act contains the power to make procedural rules. Section 6 provides for the appointment of special advocates before the Commission. Section 6A provides that sections 5 and 6 apply to applications under sections 2C and 2D and that references to appeals in them are to be read as references to reviews. Appeals from the Commission are to the Court of Appeal on points of law: s. 7. Under schedule 1 of the Act at least one of the Commission's members must hold or have held high judicial office or have been a member of the judicial committee of the Privy Council. At present Irwin J is chairman of the Commission. Recently four additional High Court judges have been appointed to sit as members of the Commission if required.
- Several strands of legal principle were submitted to be relevant to the task of statutory interpretation at the centre of this case. The first is the court's aversion to ouster clauses. Perhaps the seminal statement is Lord Reid's in Anisminic v Foreign Compensation Commission  2 AC 147: ouster clauses must be construed strictly, meaning that "if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court": at 170 C-D. In R (Cart) v Upper Tribunal  EWHC 3052 (Admin) ( QB 120 (on appeal  EWCA Civ 859; 2011 UKSC 28;  1 AC 663), Laws LJ canvassed the authorities and concluded that it could not be supposed that judicial review might be ousted by an implication, far less one contained in a formula which amounted in effect to a deeming provision: . Laws LJ went on to state that under the rule of law legislation could not be interpreted authoritatively by Parliament or the Executive, for they would be acting as judge in their own cause. The role of interpreter of legislation had to be performed by the court as an impartial and independent body: -.
- There is a string of ouster clause cases. These are concerned with the issue of finality, the exclusion of any further court review of a decision. There are several authorities where the ouster precedents have been distinguished. Farley v Secretary of State for Work and Pensions (No 2)  UKHL 31;  1 WLR 1817 is one. There the relevant statutory provision was section 33(4) of the Child Support Act 1991. Under it the Secretary of State could apply to a magistrates' court for a liability order in circumstances where the non-resident parent had failed to make maintenance payments. On such an application the section provided that the magistrates' court had to proceed on the basis that the maintenance assessment in question was lawfully and properly made. The House of Lords held that section 33(4) was not an ouster clause, but was part of a statutory scheme which allocated jurisdiction to determine the validity of an assessment elsewhere than at the stage when a liability order was before the magistrates' court. Thus section 33(4) did not have to be interpreted with the strictness appropriate to a provision which, as in Anisminic, purported to exclude the jurisdiction of the court to determine whether a ministerial order was a nullity. Lord Nicholls (with whom the other law lords agreed) said: "This strict approach [Anisminic], however, is not appropriate if an effective means of challenging the validity of a maintenance assessment is provided elsewhere. Then section 33(4) is not an ouster provision": . He went on to find that when in force, certain statutory provisions offered an effective means by which an absent parent could challenge the Secretary of State's jurisdiction to make a maintenance assessment: , .
- A second case is R (A) v Director of Establishments of the Security Service  UKSC 12;  2 AC 1. There A, a former member of the Security Service, was refused permission to publish a book containing material about his time in the service. In judicial review proceedings he contended that the refusal was a breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights. Under section 7 of the Human Rights Act 1998 he could bring proceedings challenging a breach of that right. However, under section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 ("RIPA") proceedings under section 7 against the intelligence services may only be brought before the Investigatory Powers Tribunal. That is not a court of inferior jurisdiction but operates under special procedures. A argued that conferring exclusive jurisdiction on the Tribunal constituted an ouster of the ordinary jurisdiction of the courts and was constitutionally objectionable.
- Lord Brown (with whom other members of the court agreed) rejected that argument: . RIPA, the Human Rights Act 1998 and the Civil Procedure Rules all came into force on the same day. Thus the case fell within the principle of Barraclough v Brown  AC 615, in that the right and the remedy were given and taken away in the same breath. Before that date there was no pre-existing common law or statutory right to bring a claim based on an asserted breach of the Convention so that section 65(2)(a) took away no inalienable remedy: . Nor, held Lord Brown, did Anisminic assist, since Parliament had not ousted judicial scrutiny of the acts of the intelligence services but had simply allocated that scrutiny to the Tribunal: . Lord Brown then quoted Laws LJ's observation when the case was in the Court of Appeal, that "statutory measures which confide the jurisdiction to a judicial body of like standing and authority to that of the High Court, but which operates subject to special procedures apt for the subject matter in hand, may well be constitutionally inoffensive". Laws LJ had added that the Tribunal offered no cause for concern:  EWCA Civ 24, . In concluding this part of his judgment Lord Brown said that the position before the Supreme Court was analogous to that in Farley: .
- The second strand of principle concerns the court's centrality in preventing an abuse of process. Lord Griffiths in R v Horseferry Road Magistrates' Court, Ex parte Bennett  1 AC 42 quoted the words of Lord Devlin in Connelly v Director of Public Prosecutions  A.C. 1254 , 1354, that the courts could not contemplate the transference to the Executive of the responsibility for seeing that the process of law is not abused. Lord Griffiths added that the courts could refuse to allow the police and prosecutors to take advantage of an abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution: at 62E-F. Abuse of process has been taken beyond criminal processes. In the Court of Appeal in A v Secretary of State for the Home Department  EWCA Civ 1123;  1 WLR 414 (on appeal  UKHL 71;  2 AC 221), Laws LJ referred to the rule of law requiring, not only that state power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith. Consequently the courts would not entertain proceedings, or receive evidence in ongoing proceedings, if to do so would lend aid or reward to the perpetration of any such wrongdoing by an agency of the state: .
- The third strand of principle is that statutory power, although expressed in general terms, should not be construed so as to authorise acts which infringe the basic rules and principles of the common law. Parliament is presumed not to have intended to change the common law unless it has clearly indicated that intention either expressly or by necessary implication: R v Secretary of State for the Home Department, Ex parte Pierson  AC 539, 573E-F, 575D, per Lord Browne-Wilkinson. In his judgment in the same case Lord Steyn stated the principle broadly: "Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural": 591F.
- R v Immigration Appeal Tribunal Ex p. Saleem  1 WLR 443 is an illustration of this third principle. There the Court of Appeal held that a rule of the Asylum Appeals (Procedure) Rules 1996 was ultra vires the rule making power contained in the Immigration Act 1971, to "regulate the exercise of the rights of appeal conferred by.....the Act". Section 20 of the Act provided a right of appeal to the tribunal. Under the rules an application for leave to appeal had to be made not later than five days after the person making it received notice of the determination against which he wished to appeal. The rule struck down provided that an asylum seeker was deemed to have received notice of the determination after the second day of posting, irrespective of when or whether it was actually received. The Court of Appeal held that the rule went beyond the scope of the power in the statute to regulate the right of appeal. "If it is correct that the section 20 right is a fundamental or basic right akin to the right of unimpeded access to a court, then there is this consequence, that infringement of such a right must be either expressly authorised by Act of Parliament or arise by necessary implication from an Act of Parliament…": per Roch LJ, at 451F-G.
- A fourth strand of principle is drawn from the recent Supreme Court decision of M v Scottish Ministers  UKSC 58;  1 WLR 3386. There the Scottish Parliament had passed the Mental Health (Care and Treatment) (Scotland) Act 2003, which enables qualifying mental patients detained in qualifying hospitals to apply for a declaration that they are being held in conditions of excessive security. Under the legislation those provisions were to come into force on the commencement date of 1 May 2006. Regulations to define qualifying patients and qualifying hospitals were never made. The Supreme Court held that the continued failure to make regulations was unlawful. In giving the judgment of the court, Lord Reed accepted the distinction in principle between a provision being in force, in the sense that it had become law, and its being in effective operation: . The inference to be drawn from the specific commencement date in this legislation was that, without indications to the contrary, it had been Parliament's intention that the provisions should be brought into effective operation then, rather than be a dead letter for an indefinite period thereafter: .
The claimant's arguments
- Drawing on these principles Ms Harrison QC submitted the legislation could not be read as automatically terminating proceedings for judicial review in this type of case without further order of the court. The fact was that this was an ouster of the court's jurisdiction; any proceedings in SIAC were new proceedings. In no way, submitted Ms Harrison QC, could the statutory scheme be described as a transfer of proceedings from the court to SIAC. The result was to oust the High Court's inherent jurisdiction to regulate its own proceedings, in particular to ensure that any decision purporting to terminate its jurisdiction is lawful and not an abuse of process. The rule of law sets its face against ouster clauses, in particular where the Executive claims a power to terminate judicial supervision of its actions, on its own dictat, since this might be for its own litigation advantage. The legislation has to be interpreted against the background of these governing principles. The clearest words were needed for ouster to occur. Section 19 of the Act and schedule 3, paragraph 4(2), should have contained an express power for the Secretary of State to make rules for the Executive to issue a certificate to terminate court proceedings simultaneously and automatically. It is article 4(3) of the Order which does what the legislation does not do. Subordinate legislation in this case can not enable the Secretary of State to bring judicial review proceedings to an end.
- Thus, submitted Ms Harrison QC, the legislation had to be read as contemplating two processes, certification and termination. That would be consistent with the rule of law because the court would then have jurisdiction to ensure a certificate is lawfully made and there is no abuse of process. Even the Secretary of State seemed to accept that there were two processes because she had proposed an order relating to costs on termination of the current judicial review. Therefore she contended that the court still had jurisdiction to deal at least with incidental matters, notwithstanding the issue of the certificate. In Ms Harrison QC's analysis, the alternative way of considering the matter was that, because of the breach of basic principles associated with the rule of law, article 4(3) of the Order with was ultra vires.
- In Ms Harrison QC's submission, authorities such as Farley had no application to this legislation. Those authorities demanded that any alternative tribunal offered a full and an effective means of challenging a decision. That was not the position here. A new decision has been taken with a right of appeal to SIAC applying different criteria. In a fundamental respect that disadvantaged the claimant because of the absence of any balance between the public interest and his fair trial rights as with PII in the High Court. The SIAC alternative in this case is not yet in existence. Currently there is no alternative effective remedy and the claimant is in a legal limbo. There are no procedure rules in existence for proceedings in SIAC, even in draft form or put out to consultation, and no timescale as to when this will be done. Parliament must approve the procedure rules by the affirmative procedure, demonstrating just how central they are to the whole scheme. SIAC has no inherent powers, in particular no power to hold a closed evidence procedure, in the absence of express authorisation in its procedural rules: Al Rawi v Security Service  3 UKSC 34;  1 AC 531. As in the Scottish Ministers case, until the procedure rules are in place the legislation which is in force is not effective. The Secretary of State's decision to certify is premature.
- R (A) v Director of Establishments of the Security Service, in Ms Harrison QC's submission, is of no assistance to the Secretary of State since in that case there was never an existing right to take proceedings for breach of Article 10 of the Convention in domestic courts; it was abolished the instant it was created. By contrast there are existing judicial review proceedings in this case, indeed judicial review proceedings which have been ongoing for some three years. Thus in the absence of an effective and functioning review process in SIAC the Secretary of State's decision is premature and as such defeats the statutory purpose. Indeed it is ultra vires since an essential condition precedent to an exercise of the power to certify does not exist. Moreover, premature certification of the case when SIAC has no means of determining any appeal until the procedural rules are in place is incompatible with the right to an effective remedy in Article 13 ECHR in respect of a decision that constitutes a significant interference with the claimant's family life here and manages to thwart his asylum claim.
- As ever, Ms Harrison's submissions were cogent and persuasively advanced. To my mind her submissions highlighted aspects of the statutory scheme which are troubling, not least their contemplation of the Secretary of State terminating ongoing judicial review proceedings in which she is a party, and no matter at what stage they may be. There are also disturbing features regarding the practical implementation of the statutory scheme, notably the absence of procedural rules for SIAC to hear cases like the claimant's which have been terminated. Those like the claimant are indeed in limbo even if, as the Secretary of State suggests, actions in SIAC can at least be initiated, if not at the present time heard. We are now over three months on since the Justice and Security Act 2013 received the Royal Assent and still the procedure rules for SIAC are not out for consultation. Those rules must pass the scrutiny of the Joint Committee on Statutory Instruments before they can be laid before both Houses of Parliament for approval under the affirmative procedure. On instructions Mr Phillips QC for the Secretary of State informed the court that there are draft rules and it is currently anticipated that the Statutory Instrument will be finalised and laid before Parliament in October this year.
- Despite these concerns my conclusion is that Ms Harrison's submissions fail in the light of a clear Parliamentary intention expressed in section 15 of the Justice and Security Act 2013. As explained earlier in the judgment section 15 is part of a package of measures establishing closed material procedures in courts and SIAC. For obvious reasons passage of those measures through Parliament was hard fought but in my view the final result is clear and the courts must accept it. As regards section 15, the clear Parliamentary intention is that where a person has been excluded from the United Kingdom on grounds of the public good, in reliance on information which in the Secretary of State's opinion should not be made public for national security or similar reasons, a challenge to the exclusion direction must be advanced in SIAC if the Secretary of State has certified the direction.
- A clear corollary to SIAC being the only avenue for such challenges is the legislative provision that the Secretary of State can certify exclusion directions made before commencement of the legislation and can terminate existing judicial review proceedings in which these directions are being challenged. The language of termination in the statute is hard-edged and indicates to me the intention that the court does not retain any residual jurisdiction. Although termination itself is pursuant to the Order made under the legislation, the power to terminate (and the language of termination) is in the Act itself, not subordinate legislation. Paragraph 4 of schedule 3 to the Act gives the power to certify this type of exclusion direction and for the termination of "any judicial review proceedings…which relate to a direction…so certified". In my view no court order is necessary to determine the proceedings. A court order dealing with matters such as the costs of the proceedings which have been terminated does not in my view affect the position. Indeed, the court would want to be in a position to deal with such ancillary matters in the interests of claimants, who now find that they must commence further proceedings elsewhere.
- While I cannot regard the result of the legislation as a transfer, the scheme which it adopts is covered by the principle of Farley. An effective means of challenging the exclusion direction is provided elsewhere. As indicted earlier SIAC in this type of case is equivalent to the High Court. Sections 2C (3) and 2C (4) confer on SIAC all the powers of judicial review, and all the remedies, which this court possesses. Although not stated in the legislation, arrangements have been made for all such cases to be heard by judges of this court sitting in SIAC. One ground of the decision in R (A) v Director of Establishments of the Security Service was the principle of Barraclough v Brown, but it clear from the judgment, in particular Lord Brown's quotation from Laws LJ's judgment in the Court of Appeal, and the analogy which Lord Brown drew with Farley, that the principle is whether jurisdiction is allocated to an institution up to the task of considering the challenge. To use the language of Laws LJ in R(A), in this case there can be no cause for concern on that score.
- No shadow is cast over the plain intention of Parliament in respect of termination by the other principles cited by Ms Harrison QC. The statutory power does not constitute an abuse. Nor, at the present time, is there evidence of abuse in the exercise of the power in the claimant's case although, as I have indicated, that issue is for another day. Certainly as Laws LJ said in A v Secretary of State for the Home Department the rule of law demands, not only that state power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith. But there is no incursion of that principle in this section of the legislation and any concern in particular cases can be addressed in a judicial review of a specific decision to certify.
- Although as I have said it is troubling that the new SIAC procedure rules are not yet in force, there is nothing in the legislation which makes certification conditional upon that having being done. Pursuant to section 2C (2) the person to whom the direction relates may apply to SIAC to set aside the direction. That can be done, despite the procedure rules not being in place for the case to be given a hearing at this stage. This is far removed from the Scottish Ministers case, where the regulations had never been made defining who could bring a challenge: here it is clear who is affected and the venue to be used. Moreover, the reality is that judicial review will be heard by High Court judges sitting in SIAC, rather than in the High Court itself. That puts paid to the point about excluding common law rights, such as access to justice, which were in play in Pierson. Given the adequacy and potential effectiveness of the procedures in SIAC, and the opportunity it will provide to those excluded to challenge the relevant exclusion direction, this is nothing like the situation in Saleem.
- For the reasons I have given this claim fails.
Copyright Policy |
Donate to BAILII