Secret Immigration Courts – Those Who Do Not Remember The Past Are Condemned To Repeat It.

‘In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.’

– Lord Denning in R v. SSHD ex p Hosenball [1977] 1 WLR 766

Lord Denning must be turning in his grave at the news of secret trials being used in UK, and would [if only in spirit] concur with the description of these courts as an “outrageous assault” on our liberties, a “dangerous president”, but secret trials are nothing new, and they have certainly not appeared for ‘the first time in British legal history’!

An early example of this is SIAC, an abbreviation familiar to Immigration lawyers – the Special Immigration Appeals Commission set up under the Special Immigration Appeals Commission Act 1997 to try foreign nationals facing detention, deportation or exclusion from the UK on grounds of national security. This judicial branch has always used secret trials, closed material procedures, with powers equivalent to those of the high court, secretly serving our ‘best interests’ since its inception in 1997.So how did we get here?

Over the years we’ve allowed governments to amass enough parliamentary support to enact statutory schemes granting itself powers that are unyielding, with no scope for the protection of fundamental rights, and where judges are to be directed by statute on how cases need to be determined in the public’s interest (see more recently s.19 Immigration Act 2014). Or where court procedures are determined by the extensive discretionary powers given to Ministers to limit material evidence from being see by the parties and relied upon before the court (see Justice and Security Act 2013). Should it continue unchallenged?

The answer is quite obviously NO. But what’s not so obvious is whether we can do anything and if so, what that would be? The starting point is understanding the evolution of any given institution / concept [such as secret courts] in order to foretell its future – those who do not remember the past are condemned to repeat it. As mentioned above, SIAC 1997 has been an example of this power being used before and questions of natural justice and due process having been asked about it previously.

Secondly, we should seek guidance from established jurisprudence – for example in a recent Court of Appeal case ZZ (France) v Secretary of State for the Home Department (No. 2) [2014] EWCA Civ 7 (24 January 2014) referred an interesting question to the Court of Justice of the European Union on the use of closed material procedure and disclosure. It asked whether it was permissible for the Special Immigration Appeal Commission (SIAC) not to disclose to ZZ (a dual Algerian and French national) the gist of the grounds constituting the basis of the decision refusing him entry (on the basis of public security) to the UK in September 2006.

In the Court of Appeal, Richard LJ [with Christopher Clarke LJ and Lord Dyson MR concurring] considered the judgment laid down by the Court of Justice of the European Union, held:

In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under EU law.

Thirdly, we must appreciate the importance of the rule of law and anticipate changes that will impact upon it’s future. Recent changes such as LASPO 2012 which despite warning by the legal profession have resulted in an increase in unrepresented litigants and a significant pressure on courts and tribunals in the courts to manage these cases fairly and efficiently. Other changes are s.19 of the Immigration Act 2014 that [in a nutshell] will direct the Court to defer to Parliament’s view of where the public’s interest lies, and could lead to an unthinking judiciary. More recently the changes which Labour have announced it would make if it came to power, also leave much to be desired. For example the Shadow Justice Secretary, Sadiq Khan has tackled the interpretation of Section 2 of the Human Rights Act 1998, which states that domestic courts must take into account the case law of the Strasbourg court. Mr Khan promises to bring out guidance if not, re-legislate to remove doubt about the meaning of s.2 which he state is being used by the courts to undermined parliamentary sovereignty and which should never be seen to bind our court to rulings of the European Court of Human Rights.

What I hope is clear from this is firstly that some so called ‘new’ powers couched as national security measures, are not so new. For example, as Immigration lawyers, we know about SIAC and the inhuman decisions and obstacles to justice many migrants face in our legal system. Secondly, to remember that we have an armoury of erudite judgements in the Court of Justice of the European Union and the European Court of Human Rights, and that there has been much legal water under the bridge which we can use to stop further encroachments on our rights, and hold governments to account in their use of so called national security measures.