The government’s power to terminate judicial review cases, the rule of law, and the limits of political constitutionalism

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A Tunisian man, whose British wife and son live in the UK, is excluded from the country on national security grounds. He challenges that exclusion decision by way of judicial review, but the government “terminates” the proceedings. If that sounds like a Kafkaesque nightmare, then think again. Precisely that factual matrix was at stake in R (Ignaoua) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin). In it, Cranston J confronted the meaning and application of what is, on its face, a startling statutory provision. The Justice and Security Act 2013, sch 3, para 4, says that an order-making power conferred by s 19 of that Act

may, in particular, provide for … the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is … certified [under s 15].

Exercising powers granted by an order made under para 4, the Home Secretary directed that the judicial review proceedings in this case be terminated—a determination that was linked to the Home Secretary’s decision, under powers introduced by s 15 of the Justice and Security Act, that any challenge to the claimant’s exclusion from the UK should be made in closed material proceedings before the Special Immigration Appeals Commission (SIAC). The upshot, then, is that cases like this can be removed – by the executive government – from the inherent jurisdiction of the High Court, leaving only the option of proceedings before SIAC, which is authorised in such cases to hear evidence in the absence of the individual concerned (albeit in the presence of his or her special advocate).

Para 4 of sch 3, buried within the interstices of the Justice and Security Act, brings home some striking truths about the UK’s constitution. The effect of para 4 is that the executive government can exercise powers—given to it by Parliament—to grant itself authority to terminate judicial review proceedings in which it stands accused of abusing its own authority. It is hard to think of a neater way of encapsulating a series of central truths about the British constitution—including executive hegemony, parliamentary sovereignty and a half-hearted commitment to separation of powers—which, in combination, fundamentally shape it.

In Ignaoua, the claimant’s contention—that, as Cranston J put it, “the legislation could not be read as automatically terminating proceedings for judicial review in this type of case without further order of the court”—failed. Putting the matter another way, the executive’s authority to end judicial review proceedings was affirmed. (Whether the particular exercise of authority in this case was lawful will be decided separately: the claimant is challenging the Home Secretary’s s 15 decision to certify the case as one that must be heard by SIAC, the exercise of the power under the para 4 order being parasitic upon the lawfulness of the s 15 certification.)

Cranston J rejected the argument that even clearer language in primary legislation would be needed to sanction this sort of departure from the rule-of-law requirement that government decisions should be amenable to judicial review. This was so notwithstanding that fact that Cranston J accepted that the claimant had

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.

However, the claimant’s case failed

in the light of a clear Parliamentary intention expressed in section 15 of the Justice and Security Act 2013 … [which] 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.

Does this mean that all of the courts’ talk about the fundamental importance of judicial review to the rule of law is nothing more than hot air? That, when push comes to shove, the courts are unwilling to fulfil the sort of judicial rhetoric encountered in cases such as R (Jackson) v Attorney-General [2005] UKHL 56 and AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46? No. Or at least, not necessarily. As I have argued (together with Robert Thomas) elsewhere, the Supreme Court’s judgment in R (Cart) v Upper Tribunal [2011] UKSC 28 shows that there is no rule-of-law magic in judicial review. What the rule of law requires is not judicial review per se, but an adequate opportunity to have the lawfulness of government decisions tested before an independent and impartial judicial body. It was in recognition of precisely that point that in Cart the Supreme Court afforded so much latitude to the tribunals system, recognising that its independence rendered close supervision of it by ordinary courts constitutionally unnecessary. This rejection of Diceyan dogma about the innate superiority of “regular courts” is to be welcomed.

However, this begs the further question whether the forum into which challenges like that in Ignaoua are now to be channelled is an acceptable substitute for judicial review in the High Court. Do proceedings before SIAC pass muster in rule-of-law terms? There are two reasons why doubt might be entertained on this score. First, and most obviously, SIAC can undertake closed material proceedings, meaning that the claimant and his own legal advisers will remain ignorant of part of the case against him. However, while, on the face of it, this is a major departure from basic constitutional standards, the devil is really in the details of how the “gisting” process works—as is clear from the series of cases culminating in the House of Lords’ decision in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28.

Second, then, what precisely are the details of the procedure to be adopted by SIAC in cases like this one? Here we encounter perhaps the most surprising aspect of this case—namely, that we do not yet know in any detail what form that procedure will take. As Cranston J noted:

There are … 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.

The most worrying aspect of this case, then, is that the High Court has upheld the lawfulness of an executive decision to, in effect, divert a judicial review claim into a statutory procedure the rule-of-law adequacy of which cannot yet be determined. At the end of the day, the court, unsurprisingly, considered itself bound by the “hard-edged” wording of the legislation: there was, felt Cranston J, little if any room for interpretative manoeuvre. Of course, the possibility of such boxing-in is inevitable for as long as the doctrine of legislative supremacy is adhered to. But this simply points towards the distinct—yet ultimately—connected concern that it is constitutionally irresponsible for Parliament to place on the statute book a provision restricting access to judicial review at a time when the adequacy of the substitute statutory process cannot be evaluated.

In an ultimately political constitution like that of the UK, the reverse side of the parliamentary-sovereignty coin is a political obligation on Parliament to exercise appropriate constitutional responsibility by ensuring that both it and the executive branch observe basic rule-of-law standards. Legislating in the way that Parliament did when enacting relevant parts of the Justice and Security Act represents a failure to discharge that obligation. It is, then, an illustration of the fact that political constitutionalism—which prizes political self-restraint above external legal control—does not always deliver in rule-of-law terms. Whether this is a bad thing is ultimately a question of perspective. Some people will doubtless argue that we should worry less about the constitutional rights of Tunisian asylum-seekers and more about national security. Given, however, that one of the purposes of public law is to stand as a bulwark between the individual (however unpopular) and the might of the state, such a critique is necessarily wide of the mark.

1 comments on “The government’s power to terminate judicial review cases, the rule of law, and the limits of political constitutionalism”

  1. Thank you for this clear synopsis of the issues.

    If I recall correctly, in Jackson, Lord Steyn seemed to suggest something along the lines that he could see a situation where Parliamentry sovereignty could be undermined by its own unconstitutional actions to the point where a court could effectively declare in a judgement that Parliament had been wrong.

    If that were to be the case, one wonders how might the argument need to be made, so as to successfully vindicate a claim of breach of a fundamental aspect of the rule of law. Does one simply need to be in front of the right judge, in the most senior court?

    The issues during the legislating process may well have been hard-fought, but it seems as you say above, that the eventual outcome and hard-edged language was not settled wholly in accordance with the requirements of the rule of law (an ‘incorrect / faulty’ compromise?) It then comes down to whether one gives greater weight to the rule of law or the supremacy of parliament. Could a judge therefore tell the legislature that it got it wrong for established constitutional reasons, without getting tangled in politics?

    Mark Greenhalgh
    Law student

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