Sunday 11 August 2013

Justice and Security Act 2013 ~ on-going judicial review stopped

High Court excluded
R (Ignaoua) v Home Secretary is a case raising an interesting point about the impact of the Justice and Security Act 2013 section 15 on judicial review in the High Court - Judgment of Cranston J.

Section 15 applies to non-European Economic Area (EEA) nationals who the Home Secretary seeks to exclude from the UK on grounds relating to the public good.  If the Home Secretary does not wish information on which the exclusion decision is based to be made public then a certificate may be issued.  Once this is issued, the affected person may apply to the Special Immigrations Appeal Commission (SIAC) to set aside the direction for exclusion.  In deciding such cases, SIAC must apply the principles which would be applied in judicial review proceedings.  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.  A number of High Court judges sit in the Commission.

In Ignaoua's case, a certificate was issued
by the Secretary of State for the Home Department ("the Secretary of State") on 16 July 2013 under the section 15 power in the Justice and Security Act 2013. The Secretary of State contended that the certificate had the effect of terminating the judicial review which the claimant has had ongoing in the High Court since 2010, challenging his exclusion from the United Kingdom on national security grounds.

Clearly, the issues in the case were issues of law as to the High Court's jurisdiction.  The relevant legislation is set out at paras 16-20 of the judgment and four strands of legal principles are at 21-28.  The principles relate to statutory interpretation:

a) the court's aversion to ouster clauses - that is, clauses purporting to oust the ability of the court top conduct judicial review [see 21-24];

b) the court's centrality in preventing an abuse of process [25];

c) 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 [26-27]; and

d) where legislation requires the making of regulations as part of the implementation of a legislative scheme then it might be unlawful to bring the legislation into force but not to have made the regulations.  This is based on the recent Supreme Court decision of M v Scottish Ministers [2012] UKSC 58; [2012] 1 W.L.R. 3386 where it was held that the failure to make certain regulations was unlawful.  However, it was possible to infer in that case that Parliament had intended to bring the provisions into effective operation on the same date as that commencing the primary legislation.

The elegant arguments put forward on the claimant's behalf are at paras. 29-32. 

Cranston J discussed the arguments.  He found aspects of the statutory scheme in the Justice and Security Act 2012 to be '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 were also 'disturbing features' regarding the 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.'

Cranston J said [33] - 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.

The reader might well think that this amounts to worrying administrative practice on the part of the Home Office.  Why not ensure that the relevant regulations are in place before implementation of the primary legislation which took place on 25th July?  That would have ensured that, for people such as the claimant, there was an established alternative in place to the judicial review process.  The answer to that probably lies in political desire to get the Justice and Security Act 2013 in force after its rather bruising passage through Parliament.

Despite expressing concerns, Cranston J held that the claimant's submissions failed.  It was clear that the Justice and Security Act 2013 section 15 meant that Parliament's intention was 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 [34].   Although the new SIAC procedure rules are not yet in force, there was nothing in the legislation to make certification conditional upon that having being done [38].

Thus, we have the jurisdiction of the High Court excluded in those cases where the Secretary of State has issued a section 15 certificate.  Parliament has, in effect, moved the jurisdiction to SIAC and that is the case even though the procedural rules for hearing such matters are some months away..

This may not be the last heard of this case.  A further application of judicial review is in the pipeline.  At para 13, Cranston J referred to a new application for judicial review challenging the actual exercise by the Secretary of State of the power to certify in the claimant's case as opposed to whether the Secretary had power to certify at all.

Note: the Justice and Security Act 2013 s.15 inserted section 2C into the Special Immigration Appeals Commission Act 1997.

Addendum 12th August:

Public Law for Everyone - a further article on the Ignaoua case.

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