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The legal system in England and Wales has found it difficult to adjust to the national security issues that have developed over the last decade. An initial battleground was the indefinite detention of foreign prisoners and the use of torture evidence; issues on which the government lost (see A v Secretary of State for the Home Department  UKHL 56 and A v Secretary of State for the Home Department (No 2)  UKHL 71).
A more recent area of controversy has been the use of closed hearings. For instance, in certain immigration matters the claimant is prevented from knowing the full case against them, and the Special Immigration Appeals Commission (SIAC) conducts proceedings in private. Such arrangements constitute an interference with Article 6 ECHR and the principle of open justice, and require specific legislation to be lawful (see Al Rawi v The Security Service  UKSC 34 and Tariq v Home Office  UKSC 35).
Until the Justice and Security Act 2013, judicial review cases could not be subject to a closed material procedure. This was highlighted in AHK v Secretary of State for the Home Department  EWHC 1117 (Admin) where a claimant was unable to progress his judicial review claim for a failure to grant a passport for national security reasons. In response, the 2013 Act provides that SIAC can hear judicial reviews in cases that have been ‘certified' by the Secretary of State and, as a result, any judicial review in the High Court will be terminated (see Paragraph 4 of schedule 3 to the Act).
The problem is that SIAC has no procedural rules to hear any judicial reviews. So, a certified judicial review will be left in limbo. The High Court confirmed that this was the effect of the 2013 Act in R (Ignaoua) v Secretary of State for the Home Department  EWHC 2512 (Admin). In that case, the Claimant sought to challenge his exclusion from the UK. Cranston J held that the case highlighted aspects of the statutory scheme that were ‘troubling', not least because the Secretary of State could terminate a judicial review of which she is a party at any stage in the proceedings. The judge went on to state that ‘there are also 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.'
The government has said that the relevant SIAC rules will be produced soon. However, Ignaoua highlights the extent to which normal legal procedure is turned on its head when national security issues are raised. As well as not knowing the case against you, the Secretary of State can now terminate a case brought against the government on the basis that SIAC can provide an alternative remedy. But that alternative does not exist - so, claimants like Mr Ignaoua are left without any remedy at all. It may be that the legal response to national security issues has gone too far.
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