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XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment
The Court of Appeal recently issued its judgment in XX v Secretary of State for the Home Department [2012] EWCA Civ 742, an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”) upholding the Secretary of State’s decision to deport an Ethiopian national on grounds of national security.
XX, who had indefinite leave to remain, had been assessed to have attended terrorist training camps and to have regularly associated with terrorists in the UK. SIAC was satisfied on the facts that XX posed a threat to the national security of the UK and determined that the deportation would not breach Articles 3, 5 and 6 of the European Convention on Human Rights. XX appealed on the ground that in finding no incompatibility with the Convention, SIAC had erred in law.
In a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”. It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning. For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid.
Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aidconsultation paper. JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “What you can do with rights”. The Law Commission’s annual Lord Scarman Lecture covered apartheid, AIDS denialism, LGBT rights and delved into the essence of moral humanity. It was a lecture delivered with skill and fluency, with only the slight dissatisfaction being the vagueness of Justice Cameron’s conclusion: that legal rights allow people to achieve some progress, but they don’t solve every problem.
Justice Cameron has occupied a seat on the highest judicial bench of South Africa for three years. He was made a judge by President Nelson Mandela in 1994, when his country was emerging from the systemic violence that the apartheid system had wrought on human rights. This position gives him authority, but it is his personal experience that lent the lecture gravitas. The Justice was diagnosed as HIV positive at a time when the true scale of the epidemic was being realised, and publicly fought for access to the anti-retroviral drugs that saved his life at a time when the scale of his government’s folly in denying them to millions was becoming equally clear.
A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs wrote to the Detainee Inquiry. Among other things, we said that an Inquiry conducted on such terms would ‘plainly … not comply with Article 3 [of the ECHR]’. We also made clear that, were the Inquiry to proceed on this basis, we would not submit any evidence or attend any further meetings with the Inquiry team.
In his interesting article last week (‘Will the Detainee Inquiry be human rights compliant?’, 8 August) Matthew Flinn queried our claim that the Protocol fails to meet the requirements of article 3 ECHR. Notwithstanding the government’s own statement that it doesn’t intend for the Inquiry to comply with article 3, Flinn set out various arguments to suggest that the Protocol might nonetheless comply with article 3 in any event.
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – read judgment.
Oliver Sanders of 1 Crown Office Row represented the Defendant in this case and Adam Wagner also acted for the Defendant prior to the substantive hearing. They are not the writers of this post.
Two female prisoners nearing the date on which they would be considered for release on licence, brought conjoined challenges against the Secretary of State for Justice in respect of the provision of ‘approved premises.’ The Claimants challenged the alleged continuing failure to make adequate provision for approved premises to accommodate women prisoners like them released on licence.
Mr Justice Cranston rejected the argument that the limited number of approved premises for women treated female prisoners released on licence into such premises less favourably than comparable men. He held that despite the likelihood of a greater geographic separation from their homes and families, the Secretary of State had not discriminated directly or indirectly against female prisoners. However, the Secretary of State had failed to fulfil his duty under the Equality Act 2010 to consider the impact of the limited provision of approved premises of women.
The appellants’ challenge focused on the alleged participation of undercover MI5 agents in criminality. Particular emphasis was placed upon the infamous killing in 1989 of Northern Irish solicitor, Pat Finucane, who was involved in representing those accused of terrorist activities. Of note, in 2012, the Prime Minister, David Cameron, stated that there was “state collusion” in the murder [17]. This led to a report prepared by Desmond de Silva QC in December 2012, who expressed “significant doubt” that the murder would have occurred without the involvement of “elements of the State”; and suggested that there were “positive actions by employees of the State” to further and facilitate the murder [18].
In this case, the focus of challenge was a policy document issued by the Security Service in March 2011 entitled, “Guidelines on the Use of Agents who participate in Criminality – Official Guidance” (“the Guidance”). This document delineates the Security Service’s procedure for “authorising” the participation in criminal conduct by Covert Human Intelligence Sources. Ultimately, the Court had to determine the legitimacy of this policy by reference to the provisions of the Security Service Act 1989, which was the first piece of legislation to put the activities of the Security Service on a statutory footing. The Service had previously been governed by the Royal Prerogative.
The Investigatory Powers Tribunal (“the Tribunal”) found by a majority for the respondents, but the minority disagreed on the issue of whether the relevant policy amounted to an unlawful de facto power to “dispense” with the criminal law (and therefore also whether it was compliant with the ECHR).
Dr Lawrence McNamara is an academic at the University of York and a Senior Research Fellow at the Bingham Centre for the Rule of Law
A new practice direction reveals some valuable progress in the management of closed judgments, but leaves uncertainty and, very worryingly, indicates that some judgments will be destroyed.
Closed material procedures (CMPs) have become an established option for the government when it wants to rely on security-sensitive evidence in civil litigation.
In immigration matters in the Special Immigration Appeals Commission (SIAC) and in the full range of civil proceedings under the Justice and Security Act 2013, CMPs permit the state to rely on evidence that will not be disclosed to the other party who may be (for example) subject to deportation or a claimant in an action alleging state complicity in rendition.
Open and closed
judgments may be handed down. The latter will not be seen by non-state parties,
their lawyers or the public.
In parallel,
there have been heavy restrictions on access to and reporting of criminal
terrorism cases, most notably Incedal.
CMPs and closed
judgments are by nature a departure from fundamental rule of law standards of equality
of arms and open justice. The Supreme Court pointed this out in Al
Rawi and the Special
Advocates have been highly critical of them. Nonetheless, there is no sign that the CMPs
will disappear. Instead, the trend has slowly been towards managing them and
finding ways to mitigate some of the deficiencies.
A six-paragraph Practice Direction on Closed Judgments, issued on 14 January 2019, reveals some significant steps in that direction, but it lacks clarity in its scope and reveals a very troubling proposal for destruction of judgments.
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – Read judgment
The European Court of Justice has, in recent days, handed down a judgment that hits several hot buttons: UK immigration law, EU human rights, secret evidence, and suspicions of terrorism. In ZZ the Court has had to rule on the use of secret evidence before the Special Immigration Appeals Commission (SIAC).
Mr ZZ is an Algerian citizen. However, of crucial importance to his case is that he is also a French citizen, and therefore as an EU citizen, he is entitled to travel to and live the UK. Mr ZZ’s wife is a UK citizen and he was resident in the UK for a over a decade until 2005. In that year he travelled to Algeria but, upon return, was refused admission to the UK on national security grounds.
Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that
It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).
Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system. Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.
65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been published on the official consultation website. According to the site there are potentially 25 more to come.
Whilst it is a good thing that the responses have been published at all, the low number of responses is a little depressing. In a country of over 60 million people, and given the proposals could amount to a significant erosion of open justice, 90 responses seems a little thin. Granted, many of the responses are from organisations or groups of individuals, such as the 57 Special Advocates who have called the proposals a “departure from the foundational principle of natural justice“. But the low number surely represents the fact that as yet the proposals have failed to capture the public imagination.
Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.
Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.
The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?
As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.
While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.
The Administrative Court may this morning have handed him one of his first “to-do” list items. In – PLP v Secretary of State for Justice– a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.
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XX v Secretary of State for the Home Department [2012] EWCA Civ 742 – Read judgment
In a famous 
On 25 January 2012 Justice Edwin Cameron, Justice of the Constitutional Court of South Africa, delivered an emotive and thoughtful talk entitled “
A year after it was first announced, the Detainee Inquiry on 6 July published its Protocol and terms of reference. On 3 August, JUSTICaE together with 9 other NGOs 
Griffiths v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2013] EHWC 4077 (Admin) – 
ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 – 
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
65 responses to the Justice and Security Green Paper consultation, which proposes introducing “Closed Material Procedures” – secret trials – into civil courts, have been 
The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner 
As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in 
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