HMRC no longer reviewing Family Investment Companies
Closed material procedures, which allow one party (usually the state) to produce evidence which their opponents are not permitted to see, have been the subject of sustained criticism since their inception. Their availability in judicial review proceedings was previously very limited; the withholding of evidence from a party was permitted in a few narrow scenarios to protect the rights of children. The Supreme Court in R (on the application of Haralambous) v Crown Court at St Albans and another has however expanded the opportunities to use such procedures in judicial review and, controversially, this expansion has not been expressly legislated for by Parliament.
Closed material procedures allow for one party to present sensitive evidence to the judge which other parties to proceedings cannot examine. ‘Special Advocates’ may be appointed to examine the sensitive evidence and represent the interests of parties excluded from reviewing it themselves. The effectiveness of Special Advocates has been questioned as they are prohibited from taking instructions on points arising from the secret evidence. Critics have also argued that closed material procedures offend the principles of procedural fairness and open justice. Proponents argue that they are necessary to protect national security. Such procedures were initially limited to ‘niche’ tribunals in the national security context (the Special Immigration Appeals Commission, Investigatory Powers Tribunal and Pathogens Access Appeals Commission). Their availability has gradually increased, with their introduction to employment tribunals, planning inquiries, financial restriction proceedings and, through Section 6, Justice and Security Act 2013 (“JSA 2013”) to civil proceedings.
Haralambous was a judicial review challenge to the legality of a decision to retain evidence following a search warrant. The warrant had been issued by a Magistrates’ Court under s.8 Police and Criminal Evidence Act 1984 (“PACE”) and the Crown Court subsequently authorised the police force to retain the evidence under s.59 Criminal Justice and Police Act 2001 (“CJPA 2001”). In both instances, material used by the authorities to obtain the warrant and retain the evidence had been withheld from the person affected on public interest grounds. The applicant sought judicial review of the Crown Court’s decision. It was agreed between the parties that JSA 2013 did not apply.
The applicant offered three cascading arguments in the Supreme Court challenging the use of closed material, arguing that:
The Supreme Court found against the applicants on each of these points. They found that a Magistrates’ Court could consider material that was to be withheld from the person affected by a warrant, noting that s.8 PACE involves “a purely ex parte process, directed to premises, rather than any particular person” and that there is “is nothing in the statutory scheme which expressly restricts the information on which the magistrate may act”. They found that the Crown Court was similarly entitled to rely on such material because s.59 CJPA 2001 required the Crown Court to “to put itself in the shoes of a hypothetical magistrates’ court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of the property”. As the Magistrates’ Court was entitled to consider withheld material, Parliament must have intended that the Crown Court could have regard to that same material to make the statute effective.
Turning to the issue of judicial review, the court relied on Bank Mellat v HM Treasury (No 2)  AC 700 to find that closed material procedures could be used in a judicial review of the Crown Court’s decision. In Bank Mellat (No 2) the Supreme Court, by a majority, had held that a power to hold a closed material procedure was implicit in statutory provisions. A statute permitting the Court of Appeal to use a closed material procedure must also allow the Supreme Court to use the same procedure when dealing with an appeal from that court, even though the Supreme Court was not expressly authorised to do so by statute. Applying this approach, the Supreme Court adjudged that if the High Court hearing a judicial review were bound to address the matter on a different evidential basis to the magistrate or Crown Court then it would be “self-evidently unsatisfactory, and productive potentially of injustice and absurdity”. Were that to be possible, the High Court could find against correct decisions of the lower courts reached on the basis of material not available to it. It would also struggle to act consistently with the requirements of s.31 Senior Courts Act 1981, which postulates that it will be considering the outcome on the same basis as the lower court or tribunal. The Supreme Court, having analysed the unsatisfactory alternative possibilities, determined that the “the only sensible conclusion is that judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review”.
The Supreme Court also ruled against the necessity of providing a ‘gist’ to the affected third party of what had been presented to the Magistrates’ Court or Crown Court to obtain a warrant or order in every case, noting that every case must “be considered in the light of its particular circumstances”. The principles concerning irreducible minimum disclosure were not found generally to apply to proceedings concerning search warrants.
Exactly how the ruling Haralambous will affect the courts’ approaches to closed material procedures in judicial review is not yet clear. On the narrowest reading, closed material procedures have been expanded so that they can be used in the judicial review of orders for retention under s.59 CJPA. A wider interpretation could see the court implying the availability of closed material procedures in judicial review from other statutory provisions which refer to the judicial review of decisions of lower courts or tribunals where such a procedure is permitted. An interpretation that is wider still, and one that was favoured by the Supreme Court in obiter, is that a closed material procedure can be used in any judicial review of a decision of a lower court or tribunal arising out of circumstances where that body has lawfully used a procedure that involves withholding evidence from an affected party. The direction of jurisprudence in this area is likely to be affected by whether courts take what might be termed the ‘practical approach’ favoured in Haralambous and Bank Mellat (No 2) or the ‘principled approach’ favoured in Al-Rawi. The practical approach would lead to a more wide-ranging use of closed material procedures in judicial review on the basis that reviewing or appellate courts should have the same evidence available to them as the courts and tribunals whose decisions are under scrutiny. Closed material procedures would therefore be necessary at the appellate and review stage whenever the lower courts and tribunals have relied on evidence lawfully withheld from a party to the case. The principled approach would see a more restrictive approach to expanding closed material procedures in judicial review on the basis that the courts are gatekeepers of the fundamental principle of open justice. The courts should be slow to permit any expansion of the use of closed material procedures unless Parliament has explicitly legislated for it.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.
The High Court judgment of R (Johnson, Woods, Barrett and Stewart) v SSWP EWHC 23 (Admin) involved a judicial review challenge to the method of calculating universal credit. The claimants successfully demonstrated that the DWP’s method of calculation was an incorrect interpretation of the Universal Credit Regulations 2013 (the Regulations) as it failed to account for circumstances where workers’ pay dates do not converge with the fixed assessment periods under the universal credit scheme.
In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.
In the case of Lazarov v Bulgaria the High Court found itself in some legal difficulty as it sought to deal with an appeal against an extradition judgment from Westminster Magistrates’ Court that was replete with mistakes.
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