Euro Rights Blog: Termination of Judicial Review and the ECHR
In R (Ignaoua) v Secretary of State for the Home Department  EWHC 2512 (Admin) the applicant challenged the decision of the Home Secretary to terminate his judicial review proceedings using a new certification power under the Justice and Security Act 2013 (s.19; Sch 3, para 4). Ignaoua originally sought to challenge his exclusion from the UK on national security grounds by way of judicial review. But as a consequence of the Home Secretary’s certification under the 2013 Act his pending applications for judicial review were brought to a summary end. Before Cranston J Ignaoua unsuccessfully challenged the certification regime. This decision has been blogged elsewhere. And it is not the purpose of this post to revisit the points expertly made there. Rather there are arguably human rights aspects of the case that need to be more fully explored.
In dismissing Ignaoua’s challenge Cranston J made a number of important findings. First, the Home Secretary can within the terms of the 2013 Act terminate qualifying judicial review applications no matter at what stage they might be (para 33). As His Lordship put it, the language of termination in the Act is ‘hard edged’ (para 35). There was no doubt as to the intention of Parliament in enacting the law. Second, the order did not transfer the proceedings; it ended them (para 36). But crucially concluded Cranston J the applicant could start afresh before the Special Immigration Appeals Commission (SIAC), and thus on that basis the situation fell within the principle in Farley’s case. In effect, there was another equivalent avenue of legal challenge for the applicant to fall back on. In future High Court judges sitting in SIAC would deal with such cases. And in doing so they would enjoy the same powers as the High Court with respect to judicial review. (Although crucially before SIAC the Home Secretary would benefit from the closed material procedure.) And third, Cranston J concluded that while ‘the rule of law demands, not only that state power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith … there is no incursion of that principle in this section of the legislation and any concern in particular cases can be addressed in a judicial review of a specific decision to certify.’ (para 37)
Ignaoua is a troubling decision as others have pointed out. It is a matter of concern that Parliament has enacted a mechanism that allows the executive to, in effect, determine a class of judicial review proceedings. Certification does not transfer proceedings to SIAC, even though Parliament clearly thinks it is the better forum for such cases. (Presumably the transitional provisions might have made provision for qualifying applications to be continued before SIAC where possible, with other applications being disposed of under the old law?) Rather certification terminates qualifying proceedings. And unless the applicant renews his/her challenge before SIAC with a new application the government in effect wins. Certification is thus a direct interference by Parliament through the medium of the Home Secretary with the administration of justice. Is this compatible with the Convention right to a fair trial (Article 6 ECHR)?
At first sight it might be thought that Ignaoua is similar to applications such as Tinnelly and Sons v United Kingdom  ECHR 62/1997/846/1052–1053 and Devenney v United Kingdom  ECHR 24265/94. The latter, for example, concerned a claim for unlawful discrimination that was terminated by a certificate of the Northern Ireland Secretary issued for public safety/national security reasons under section 42 of the Fair Employment (Northern Ireland) Act 1976. The European Court held that this ipse dixit amounted to a disproportionate interference with the right of access to court under Article 6 ECHR. However, Ignaoua is different in that unlike in Devenney et al there is an alternative avenue of challenge where a new application can be commenced.
Nonetheless, a further aspect of the case needs to be considered, namely the legislative interference with court proceedings. Mrs May talks of moving goalposts in human rights cases but certification is in effect ploughing up the pitch. The certification process is a statutory mechanism for interfering with pending litigation before the courts. It denies the applicant a fair trial in qualifying cases by simply terminating the existing proceedings. This is a litigation trump card par excellence. In Zielinski v France  ECHR 24846/94 the European Court held:
that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature – other than on compelling grounds of the general interest – with the administration of justice designed to influence the judicial determination of a dispute. (para 57)
Passing a law that ends litigation falls within the scope of this principle (Stran Greek Refineries v Greece  ECHR 13427/87), as do laws that influence the outcome in similar cases:
Although the Government submitted that the legislative provision was not aimed specifically at the present dispute, or any other dispute in particular, the Court considers that, as it was immediately applicable, it had the effect of frustrating proceedings then in progress of the type brought by the applicants. (Scordino v Italy  ECHR 36813/97, para 130).
As the European Court indicated the principle is not absolute. It is open to the state to justify the interference with the right to a fair trial by demonstrating that the law was not only enacted in the general interest for a legitimate aim but were also proportionate. Of course, the requirements of national security are the sort of pressing public policy consideration that could justify legislative interference with the right to a fair trial. However, it is legitimate to ask whether the scheme enacted in the 2013 Act is proportionate. For example, proportionality requires amongst other things that ‘the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’ (de Freitas v The Permanent Secretary of Ministry of Agriculture  UKPC 30, para 25). Its very hard to see how the termination of judicial review proceedings is proportionate in circumstances, and why a transfer to a more competent forum (SIAC) is not. Ignaoua may subsequently receive a fair trial before SIAC under its new jurisdiction but with respect to his existing judicial review proceedings he has not.