Judges and Ministers - the Afghan Hijack case
The Court of Appeal has now given judgement in the Afghan Hijack case - S [Safi ?] and Others v Secretary of State for the Home Department [2006] EWCA Civ 1157, as it's better(?) known. This was on appeal from Mr Justice Sullivan's ruling earlier this year.
The judgments are in fairly ferocious terms (justly, so far as I can gauge) about the Home Office's handling of the case. It looks very much as though the Home Office had decided (one guesses on instructions from ministerial level - no civil servant would take such a politically sensitive decision) that the hijackers were going to be booted out, and then cast around with increasing desperation for some legal means of doing so without going through Parliament. Just how desperate they got is reflected in the Judge's award of Indemnity Costs against the HO.
The law was in principle clear enough - as soon as the hijackers claimed (or were expected to claim) asylum, Jack Straw said something helpful like 'Not in a thousand years - not ever,' which had every administrative lawyer I know groaning - Fettering Discretion by a refusal to consider the merits. There was then a problem with the criminal trials - the courts do not often have to consider the defence of duress in hijack cases - but in any case the hijackers largely served their sentences before release.
What then seems to have happened was that the Home Office realised a little late that the gap exposed by the Chahal line of cases had not been fully plugged - what of non-terrorist 'undesirables,' especially ones who for whatever reason had not got the expected criminal convictions against their name ?
As the Judges explained, this could have been sorted out by Parliament. However, the Home Office seem to have preferred (one suspects that speed was the problem) to promulgate new rules 'explaining' (my way to put it) their use of some Immigration Act 1971 powers in such a way as to fit this. Subject to Their Lordships, the courts have now rejected this attempt to apply the Immigration Act in this sort of case - because it wasn't meant for it, a point somewhat analogous to the problem in A, X and Y v S of S HD [2004] (HL) ['Belmarsh'] re suspected international terrorists from overseas.
The further question is how the Press will handle this. One does not really expect Dr John Reid to wish to grasp publicly the nuances of the Court of Appeal ruling - but what about the Press ? Curiously, the Daily Mail seems less incandescent than I would expect, tho' the comments do not suggest that their readership has followed the case (whose 'big picture' undeniably seems odd) very carefully, one comment about 'grandstanding' apart. I would also have to accept that the Sun's summary is sound enough. Curious ...
The judgments are in fairly ferocious terms (justly, so far as I can gauge) about the Home Office's handling of the case. It looks very much as though the Home Office had decided (one guesses on instructions from ministerial level - no civil servant would take such a politically sensitive decision) that the hijackers were going to be booted out, and then cast around with increasing desperation for some legal means of doing so without going through Parliament. Just how desperate they got is reflected in the Judge's award of Indemnity Costs against the HO.
The law was in principle clear enough - as soon as the hijackers claimed (or were expected to claim) asylum, Jack Straw said something helpful like 'Not in a thousand years - not ever,' which had every administrative lawyer I know groaning - Fettering Discretion by a refusal to consider the merits. There was then a problem with the criminal trials - the courts do not often have to consider the defence of duress in hijack cases - but in any case the hijackers largely served their sentences before release.
What then seems to have happened was that the Home Office realised a little late that the gap exposed by the Chahal line of cases had not been fully plugged - what of non-terrorist 'undesirables,' especially ones who for whatever reason had not got the expected criminal convictions against their name ?
As the Judges explained, this could have been sorted out by Parliament. However, the Home Office seem to have preferred (one suspects that speed was the problem) to promulgate new rules 'explaining' (my way to put it) their use of some Immigration Act 1971 powers in such a way as to fit this. Subject to Their Lordships, the courts have now rejected this attempt to apply the Immigration Act in this sort of case - because it wasn't meant for it, a point somewhat analogous to the problem in A, X and Y v S of S HD [2004] (HL) ['Belmarsh'] re suspected international terrorists from overseas.
The further question is how the Press will handle this. One does not really expect Dr John Reid to wish to grasp publicly the nuances of the Court of Appeal ruling - but what about the Press ? Curiously, the Daily Mail seems less incandescent than I would expect, tho' the comments do not suggest that their readership has followed the case (whose 'big picture' undeniably seems odd) very carefully, one comment about 'grandstanding' apart. I would also have to accept that the Sun's summary is sound enough. Curious ...
posted by Richard Heald | 6:08:00 am
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