The High Court has granted an immigration charity permission to challenge the lawfulness of a procedure rule that allows tribunals to withhold material from a party.
The Honourable Mrs Justice McGowan, in Immigration Law Practitioners’ Association v The Tribunal Procedure Committee and the Lord Chancellor, said the association’s claim raised ‘important questions of principle’.
The association wants rule 13 of the First Tier Tribunal (IAC) Rules, which came into force last October, declared ultra vires and quashed.
It claimed the rule was incompatible with the rule of law and there was no process by which its operation could be supervised by a superior court or tribunal.
The rule enables tribunals to make an order prohibiting the disclosure or publication of specified documents or information relating to proceedings. The tribunal can also prohibit the disclosure of a document or information to a person if it satisfied such disclosure would likely cause serious harm to that or some other person.
The Tribunal Procedure Committee and lord chancellor argued the rule did 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’.
They believed the lawfulness of such a process would be ’better tested on a case-by-case basis’ and there was a presumption all tribunals acted in full accordance with the common law rules of fairness.
McGowan acknowledged such a process may be required so the tribunal could ‘properly safeguard the wellbeing’ of certain witnesses or information providers.
But she said, 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.
‘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’.
McGowan said the ‘wait and see’ approach could not prevent the risk that untested and undisclosed information ‘might play a part in a decision reached incorrectly or for the wrong reasons’.
A spokesperson for the Ministry of Justice told the Gazette: ’It is right that in some very rare cases involving vulnerable people the power to withold evidence should be used. We will defend this legal challenge.’
The case is expected to be heard in the High Court later this year.