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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> QX v Secretary of State for the Home Department [2022] EWHC 836 (Admin) (07 April 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/836.html Cite as: [2022] EWHC 836 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
QX |
Claimant |
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- and - |
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Secretary of State for the Home Department |
Defendant |
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Mr Steven Gray & Mr William Hays (instructed by the Government Legal Department) for the Defendant
Special Advocates: Ms Shaheen Rahman QC & Ms Rachel Toney (instructed by the Special Advocates' Support Office)
Hearing date: 30 November, 1 December, 2 December 2021
REPORTING RESTRICTIONS APPLY
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Crown Copyright ©
THE HON MRS JUSTICE FARBEY :
Introduction
The facts
Criminal proceedings
The claimant's case
The parties' positions
Legal framework
The 2015 Act
Condition A: The Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom.
Condition B: The Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on the individual.
Condition C: The Secretary of State reasonably considers that the individual is outside the United Kingdom.
Condition D: The individual has the right of abode in the United Kingdom.
Condition E: The court gives the Secretary of State permission under section 3 of the Act.
Statutory review
Review of Conditions A and B
Scope and intensity of review
"Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which [SIAC], despite its specialist membership, cannot match".
In my judgment, this observation applies with equal force to the High Court. Even if the High Court were to prefer a different view of the facts, the Secretary of State's institutional competence is a sound constitutional reason for judicial restraint unless the Secretary of State's view cannot be reasonably entertained on public law grounds.
"It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."
"95. The decision in Begum is clear about the approach which SIAC should take to this issue in a case which does not involve Convention rights. The question is whether SIAC may take a different approach in a human rights case, and in particular, whether SIAC may make its own assessment of the interests of national security. The key point is that when the House of Lords considered the appeal in Rehman SIAC had full jurisdiction to decide questions of fact and law (see paragraph 74, above), and could exercise differently any administrative discretion conferred on the Secretary of State (see paragraph 73, above). Despite that full jurisdiction, SIAC's role on an appeal was limited in the way that Lord Hoffmann described.
96. The Supreme Court considered obiter, in passages which are, nonetheless, strongly persuasive, what approach SIAC should take to Convention rights. In the passages which I have quoted or summarised in paragraphs 72, 83, and 85 the Supreme Court said that when SIAC has to decide whether the Secretary of State has acted incompatibly with an appellant's Convention rights, SIAC's function is not a secondary reviewing function. It has to decide for itself whether the impugned decision is lawful. It has to decide the matter 'objectively on the basis of its own assessment'; it 'must reach its own view as an independent tribunal, rather than reviewing the decision of the Secretary of State'.
97. The parties' submissions might suggest that there is a tension between those passages. I do not consider that there is. Even when SIAC had full jurisdiction in fact and law, and had power to exercise the Secretary of State's discretion afresh, there were narrow limits on its institutional capacity to review the Secretary of State's assessment of the interests of national security. SIAC has full power to review the compatibility of the Secretary of State's decisions with Convention rights. That means that SIAC must assess the risk of any breach of article 3, and the proportionality of any interference with qualified rights for itself. It does not entail, in my judgment, however, that SIAC can, in assessing proportionality, substitute its evaluation of the interests of national security for that of the Secretary of State. The starting point for an assessment of proportionality is that the Secretary of State's assessment goes into one side of the balance, unless it is susceptible to criticism in one of the ways described in Rehman.
102. In my judgment, SIAC must apply the approach which is described in Begum to the Secretary of State's assessment of the interests of national security in an article 8 case, just as much as it should in a case in which Convention rights are not at issue. That was the approach of the Supreme Court in Lord Carlile's case. I accept that there are significant procedural differences between an appeal to SIAC and the application for judicial review in that case. Nonetheless, there is a common principle, which is that in both contexts, what is balanced against the Convention rights of the appellant or claimant is the assessment of the executive, tested in the limited ways which are described in Rehman and endorsed in Begum. Despite its expert membership, SIAC does not have the institutional competence to assess the risk for itself as a primary decision-maker. Nor is it democratically accountable. If SIAC were to call the risk incorrectly, the executive, not SIAC, would suffer the political fallout. The executive can be removed at a general election; SIAC cannot."
"it is the function of SIAC to scrutinise all the evidence, OPEN and CLOSED, with a critical and expert intelligence, to test the approach and the evidence bearing on the assessment, both for and against the conclusions of the Secretary of State, and then applying due deference, to decide whether the conclusions of the Secretary of State were reasonable and, adopting the phrase of the Strasbourg Court, conformed with common sense. In doing so, SIAC is bound to show deference at all stages and at all levels, to the assessments of those responsible for making those assessments professionally. In matters of high policy, that deference will be effectively simply acceptance. At more granular levels, SIAC will ask questions and consider the detailed replies. Experience suggests these questions will be considered thoughtfully, and the answers very frequently persuasive. Proper deference there must be, but it does not amount to a simply supine acceptance of the conclusions advanced by the Secretary of State. I do not understand that to be in any way implied by the decisions in Rehman or Begum."
"As Sir Stephen Irwin has written at paragraph 126, with which I entirely agree, SIAC must grant due deference to the assessment made by the Secretary of State. In matters of high policy, that deference is likely to amount simply to acceptance. But at more granular levels there must be careful scrutiny of the evidence as a whole, and proper deference in the context of properly tested evidence is not to be equated with obligatory acceptance of the position advanced by the Secretary of State."
Article 6 of the Convention
" the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists of purely general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be".
The parties' submissions
Imposition of the TEO: article 6 of the Convention
The May 2020 judgment
Condition A
Condition B
Imposition of the TEO: national security witness
No formal witness statement
Power to direct oral evidence
Resources
The court's discretion
"I accept that it is, as a matter of principle, open to a judge, hearing a judicial review application, to permit one or more parties to adduce oral evidence. That was made clear by Lord Diplock in his speech in O'Reilly v Mackman [1983] 2 AC 237, 282H-283A. However, for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross-examination in judicial review cases, the court time and legal costs involved in such cases will spiral."
The section 9 obligations
Article 6 of the Convention
National security witness
Conclusion