Home Secretary's powers to terminate judicial review proceedings declared unlawful by Court of Appeal

Thursday 21 November 2013

R (ota Ignaoua) v SSHD [2013] EWCA 1498 Civ In a short and clear judgment the Court of Appeal has declared unlawful powers which the Home Secretary gave herself to terminate judicial review proceedings without further order of the court. This unprecedented power, which was contained, without fanfare, in a Commencement Order made under the Justice and Security Act 2013 gave the Home Office powers to end court proceedings in which it was a defendant. Draft commencement orders are not submitted to Parliament for scrutiny and do not require approval.

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Mr Ignaoua was extradited to Italy in 2008 from the UK where he lived with his wife and child. In July 2010 he was acquitted of all charges but the Secretary of State nevertheless excluded him to prevent him from returning. He applied for judicial review. He was granted permission to challenge the decision but the Secretary of State indicated she wished to rely on secret material in defending the decision and so was directed to issue a public interest immunity ('PII') certificate so the court could consider whether it was appropriate to withhold material and to disclose all material that was not covered by the certificate. Three years later Mr Ignaoua was still waiting for the Secretary of State to comply with directions. Finally on the eve of the PII hearing at which the Home Secretary would have been required to satisfy the court that there was in truth a substantial national security interest in play, the Home Secretary applied to adjourn the PII hearing because the Justice and Security Act 2013 was now law. The application stated that if the court did not grant the adjournment, the Home Secretary would 'certify' the exclusion decision with the effect that the judicial review would be terminated. The adjournment application was refused.

Applying well-established public law principles which protect the rule of law, the Court of Appeal held that the Home Secretary's "certificate" did not operate to terminate the judicial review and could not do so without a further order of the court. Allowing the appeal it declared that the Home Secretary acted outside her legal powers when she made an order which made her the "terminator".

Mr Ignaoua's legal representative, Daniel Furner of Birnberg Peirce & Partners solicitors said:
"This is an important reminder that the court has a vital role in protecting citizens from the excesses of government power and the increasing secrecy around government decision-making. Mr Ignaoua's case could and should have been concluded years ago but the government has resisted our persistent attempts to get this matter into court. We hope that the matter can now proceed quickly."

To download the full judgment, click here.

Mr Ignaoua was represented by Stephanie Harrison QC and Amanda Weston of Garden Court Chambers' Public Law Team.

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