England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2015

MRS JUSTICE McGOWAN :

1. On 20 October 2014 Rule 13 of the First tier Tribunal (IAC) Rules came into force. This claim is a challenge to the lawfulness of that rule. The challenge is brought by the Immigration Law Practitioners' Association, "(ILPA)", the Claimant. It is a registered charity and a professional membership association, made up largely of practitioners, academics and non-governmental bodies. It is accepted that it has sufficient interest to bring the challenge. The first Defendant is the Tribunal Procedure Committee, "(TPC)". The second Defendant is the Lord Chancellor.
2. The Claimant seeks,

i) a declaration that Rule 13 is ultra vires

ii) an order quashing Rule 13 and

iii) ancillary orders as to costs and further relief.

3. It argues,

i) That the general principles of open justice, natural justice and fairness apply to proceedings before statutory tribunals in the same way as they do in the criminal and civil courts,

ii) A procedure rule which permits a tribunal to withhold from a party, material which is taken into account in reaching its decision, is a fundamental departure from the normal principles that it can only be authorised by clear and express statutory language,

iii) The Tribunals, Courts and Enforcement Act 2007, (TCEA2007), does not amount to statutory authority to allow the First Tier Tribunal of the Immigration and Asylum Chamber, (FTT IAC), to adopt "closed material procedures". It is submitted that paragraph 11(1) of Schedule 5 to TCEA 2007 does not authorise the making of such a rule,

iv) The TPC, in making Rule 13 and the Lord Chancellor in allowing it, acted without the required statutory authority under TCEA2007. it is said therefore that Rule 13 is ultra vires the rule making power,

v) As presently formulated Rule 13 is incompatible with the rule of law. It contains no procedural safeguards to balance the potential adverse effect of the derogation from basic principles and there is no process by which its operation can be supervised by any superior court or tribunal.

4. "Rule 13" provides: Use of documents and information

(1) The Tribunal may make an order prohibiting the disclosure or publication of-

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if-

(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.

(3) If a party ("the first party") considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party ("the second party"), the first party must-

(a) exclude the relevant document or information from any documents to be provided to the second party; and

(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).

(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a p[arty who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to the representative if the Tribunal is satisfied that-

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6)

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal's consent.

(7) The Tribunal may, on the application of a party or on its own initiative, give a direction that certain documents or information must or may be disclosed to the Tribunal on the basis that the tribunal will not disclose such documents or information to other persons, or specified other persons.

(8) A party making an application for a direction under paragraph (7) may withhold the relevant document or information from other parties until the Tribunal has granted or refused the application.

(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.

(10) The Tribunal must conduct proceedings and record its decision and reasons appropriately so as not to undermine the effect of an order made under paragraph (1), a direction given under paragraph (2), (5) or (7) or the duty imposed by paragraph (9).

5. The Respondents argue,

i) That the Rule does no more than allow the Tribunal to withhold documents and information from a party in narrowly prescribed, exceptional circumstances which will only rarely arise in practice and which are unrelated to any issues of national security,

ii) The lawfulness of such a process would be better tested on a case by case basis and

iii) That there is a presumption that all Tribunals will act in full accordance with the common law rules of fairness.

DISCUSSION

6. It may well be the case that such a process may be required in order that the Tribunal can properly safeguard the well being of certain categories of "witnesses" or providers of information.
7. Unlike other jurisdictions, there are no rules governing the process and of most concern the Tribunal who hears or sees the withheld information is the Tribunal of fact in the hearing.
8. If the Tribunal hears or sees information which is withheld, the party to whose interest that information is adverse cannot know and could not be in a position to challenge the process.
9. For that reason the "wait and see" approach could not prevent the risk arising that untested and undisclosed information might play a part in a decision reached incorrectly or for the wrong reasons.
10. It may well be that practice directions would be an adequate remedy to deal with this potential deficit. It is an arguable point.
11. This claim does raise important questions of principle and accordingly permission is granted.