Judicial review proceedings may be terminated by government

12 August 2013 by Rosalind English

Ignaoua, R (On the Application of) v Secretary of State for the Home Department  [2013] EWHC 2512 (Admin) – read judgment

The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s  intention was clear, even though there were no new rules in force yet.

The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.

The question before the court was whether the certificate had been lawfully made and not an abuse of process.

Factual and Legal Background

The claimant, a Tunisian national, had been extradited to Italy following a counter-terror operation by the Italian police. In June 2010 the Secretary of State had assessed him as being involved in facilitation and radicalisation activities for terrorist purposes.  She rejected the argument that the UK was responsible for his asylum claim under the Dublin Regulation since the asylum application had lapsed when he was extradited.

In his application for judicial review of the exclusion order the claimant also challenged the Home Secretary’s  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. These judicial review proceedings were subject to several lengthy delays, and in July 2013 the Secretary of State applied to vacate the 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.

In response, the claimant’s counsel announced her intention to challenge the certification on the basis that it did not oust the jurisdiction of the court; that it was an abuse of power and involved the exercise of a statutory power for an improper purpose; and it could not operate retrospectively. Cranston J  ruled that the argument should be confined to the issue of law as to the power to certify.

Part 2 of the Justice and Security Act 1913 reflected the government’s view that there needed to be a closed material procedure so courts could hear sensitive cases in closed session where national security issues were raised.

The claimant advanced several strands of legal argument to the interpretation of the powers granted by the Act. One of them was the courts’ historic aversion to ouster clauses, most famously expressed in the case of Anisminic v Foreign Compensation Commission [1969], which established that 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”.

Another principle put forward by the claimant was 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, one such rule being unimpeded access to court. The power exercised in this case by the Home Secretary, argued the claimant, offended this common law rule.

Drawing on these principles, the claimant 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. He contended that this was an ouster of the court’s jurisdiction; any proceedings in SIAC were new proceedings:

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 Court dismissed the application.

Reasoning behind the judgment

Cranston J acknowledged that there were “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. It was also “troubling” that the Secretary of State could terminate proceedings to which she was a party. Nevertheless, the claimant’s submissions failed in the light of a clear Parliamentary intention expressed in section 15 of the Justice and Security Act 2013.

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.

In a recent case on exclusion, R (A) v Director of Establishments of the Security Service [2009], the Supreme Court ruled that Parliament had not ousted judicial scrutiny of the acts of the intelligence services but had simply allocated that scrutiny to the Investigatory Powers Tribunal.   Like  (A) , the question in this case was whether jurisdiction was allocated to an institution up to the task of considering the challenge. To use the language of Laws LJ in  (A), in this case there could be no cause for concern on that score.

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• Government pressing ahead with (most of) its proposals to restrict access to judicial review – Mark Elliott
• Government’s ‘war’ on Judicial Review panned
• Judicial Review reform and the mystery of the missing evidence
• Quicker, costlier and less appealing: plans for Judicial Review reform revealed

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