Pulling the plug on void decisions
Judge’s declaration on jihadi’s citizenship has left Home Office in a flap
The Sunday Times reports today that a High Court ruling on Friday “could pave the way for dozens of jihadists to return to the UK”. This seems unlikely.
The case involves a woman known only as D4. Since January 2019 or thereabouts, she has been detained at Roj camp in north-eastern Syria. She is believed to have travelled to Syria to join the proscribed terrorist organisation Islamic State.
In December 2019, an order was made on behalf of the home secretary, Priti Patel, depriving D4 of her UK citizenship. D4 knew nothing of this for more than nine months because no attempt was made to inform her. She found out only after her solicitors asked the government for repatriation assistance.
Section 40(2) of the British Nationality Act 1981 gives the home secretary the power to make an order depriving a person of British citizenship if satisfied that deprivation would be conducive to the public good.
Section 40(5) says:
Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—
(a )that the Secretary of State has decided to make an order,
(b) the reasons for the order, and
(c) the person’s right of appeal…
Section 41(1)(e) allows the home secretary to make regulations “for the giving of any notice required or authorised to be given to any person under this Act”.
Regulation 10 of the British Nationality (General) Regulations 2003 lists a number of ways in which the home secretary can give written notice under section 40(5). It then says:
(a )the person’s whereabouts are not known; and
(i) no address has been provided for correspondence and the Secretary of State does not know of any address which the person has used in the past; or
(ii) the address provided to the Secretary of State is defective, false or no longer in use by the person; and
(c) no representative appears to be acting for the person or the address provided in respect of that representative is defective, false or no longer used by the representative,
the notice shall be deemed to have been given when the Secretary of State enters a record of the above circumstances and places the notice or a copy of it on the person’s file.
So that’s what was done.
However, lawyers for D4 persuaded Mr Justice Chamberlain that the home secretary had no power to make that particular regulation.
Section 41(1)(e) confers power to make regulations “for the giving of any notice required or authorised to be given to any person under this Act”.
On its face, that power authorises the making of regulations about how, not whether, notice is to be given. It does not on any view authorise regulations which dispense with the requirement to give notice, whether generally or in any case or category of case…
As a matter of ordinary language, you do not “give” someone “notice” of something by putting the notice in your desk drawer and locking it. No-one who understands English would regard that purely private act as a way of “giving notice”. That is so even if there is no reasonable step that could be taken to bring the notice to the attention of the person concerned…
To deprive a person of her citizenship is a very substantial interference with her rights… It is perfectly coherent for a statutory scheme to provide that an order having that effect can only be made only after causing notice of the decision to be received by her or, at least, after taking reasonable steps to bring the decision to her attention.
There are, no doubt, arguments in favour of amending the statutory scheme so as to permit the making of an order without giving notice in a case where it is not reasonably possible to do so, but the proper place for those arguments is parliament, which can amend the 1981 act if it wishes to do so.
For these reasons, I conclude that parliament did not give the home secretary power to make regulations that treat notice as having been given to the person affected when it has not been given to that person but instead has simply been placed on a Home Office file.
Regulation 10(4) is accordingly ultra vires sections 40(5) and 41(1) of the 1981 Act. It is void and of no effect. As it is severable, its invalidity does not affect the other parts of regulation 10.
Brief recap for non-lawyers
This is all pretty basic stuff. Parliament makes laws. It gives ministers power to make regulations. If the minister exceeds the power given by parliament, the regulations are void from the outset.
More interesting question for lawyers
What effect should Chamberlain’s ruling have? According to D4’s lawyers, the order made in December 2019 depriving her of her citizenship should either be quashed or declared a nullity. The home secretary’s lawyers argued against quashing it.
The judge’s ruling
In my judgment, parliament must have intended that, unless and until written notice of the decision was given, the home secretary would have no power to make the order and, if she purported to do so, the resulting order would be invalid…
It follows that the deprivation order purportedly made on 27 December 2019 was a nullity. This means that D4 has since that date been a British citizen and remains so. In those circumstances, [lawyers for D4 and the home secretary] agree that a declaration and a quashing order would have the same legal effect.
In my judgment, the proper relief is a declaration: where the challenged decision is in law a nullity, there is no need for a quashing order.
So the judge made a declaration summing up the effect of his ruling.
What happens now?
This is where it gets really interesting. Judges normally send the parties’ lawyers drafts of their judgments in advance for checking. Chamberlain added this paragraph to the judgment he delivered on Friday:
On receipt of the draft judgment, the home secretary invited me to suspend the effect of the declarations pending the resolution of any application for permission to appeal. D4 does not accept that the court can or should do that.
However, the parties agreed that there should be further written submissions about this and that the declarations should be suspended on an interim basis pending resolution of the issue.
Given that it is arguable that there is jurisdiction to do this, I shall suspend the effect of the declarations for a short period to allow the parties to make further written submissions on this question.
Gabriel Tan, a blogger and law student, was surprised to learn that there was anything to argue about here. Indeed, I don’t think there is. But Chamberlain is a very shrewd judge and he has found a way — just about — of allowing Home Office lawyers a little time to find a way out of the mess they got themselves into when this regulation was made just three years ago. Given that the case was argued no more than a week before Chamberlain circulated his confidential draft, a lesser judge would have let the Home Office off the hook by reserving judgment during the summer vacation.
Where does this leave the jihadis?
“Senior sources” told the Sunday Times that “at least 28 suspected jihadists could use the ruling to force their way back to Britain”. That seems a little premature, given Chamberlain’s decision to suspend the effect of his decision.
On the other hand, if any of the 28 can show they were not told about orders depriving them of their citizenship, their deprivation orders will also have been void from the outset.
As the judge says, parliament can amend the 1981 act if it thinks the Home Secretary should be able to deprive people of their citizenship without telling them. The Commons will be sitting again in five weeks. Given the travel difficulties that these suspects face — not to mention the risk of arrest on arrival — I can’t imagine many of the 28 turning up at the UK border in the meantime.
A suspended quashing order?
Chamberlain’s order was not the suspended quashing order that the government plans to introduce to parliament. Indeed, it was not a quashing order at all. That leaves Tan arguing that the government’s proposals are ineffective:
His point, I think, is that judges could get round the government’s plans to restrict quashing orders by making nullity declarations instead. Tan cites concerns in the consultation paper published by the government in March:
There are three points to be made in response here:
Although I argued that the bill seeks to fetter the judges’ discretion on quashing orders, judges I have spoken to subsequently see subsection (9) as a steer rather a restriction. In other words, they will be able to get round it if that’s what justice requires. There is no need to look for a loophole.
The consultation paper has been overtaken by developments (which is a polite way of saying it is now utterly discredited). It certainly should not be relied on as an indication of the government’s current thinking.
If the government thinks this is a loophole it could introduce an amendment in parliament seeking to put declarations on the same footing as quashing orders.
Breathing life into a nullity
Clause 1 of the Judicial Review and Courts Bill will allow the court to suspend the effect of a quashing order until a future date. The court would normally set conditions. If these are not complied with in time, the quashing order would come into force. Subsection (3) says the order or decision under challenge is “upheld until the quashing takes effect”.
Professor Tom Hickman QC explains that this would allow a judge to say:
“This instrument (or decision) is unlawful — it is outside the powers conferred by parliament and has no legal basis — but in my discretion I will give it temporary legal effect”.
The power would not be limited to procedural defects in the decision or measure and could be used even where the measure has been found to be contrary to the express or implied words of a statute. The courts would be given a substantial power to suspend temporarily the effect of a statute or to amend temporarily the effect of its terms.
Clause 1 of the bill would also allow the courts to make prospective-only quashing orders. As Hickman says, “this would allow judges permanently to cancel the invalidity of unlawful decisions or instruments” to the extent that they pre-date the court’s ruling. He is concerned that, in legislating for this, parliament would be “ceding legislative power to the courts”.
The point becomes even stronger if the bill is amended to allow judges to suspend the effect of a declaration — something Chamberlain has already done — or if it allows courts to make declarations, as well as quashing orders, prospective-only.
Conceptually, this may be rather difficult to grasp. If a decision was void from the outset, how can it be revived? Surely, that’s like trying to breath life into a dead parrot?
I suspect the government would see it differently. Taking away someone’s citizenship without telling them is a pretty sick decision. The bill now before parliament would keep that decision on a life support machine for a few weeks longer. Eventually, though, the courts will pull the plug.
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