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Divisional Court hears argument on continuing existence of the Royal Prerogative

DATE: 07 Jul 2016

On 7 and 8 July 2016, the Divisional Court heard argument in R (XH and AI) v. Secretary of State for the Home Department, two conjoined challenges to the exercise of the Royal Prerogative to cancel or withdraw passports on public interest grounds where an individual is suspected of wanting to travel to engage in terrorism-related activity abroad. The cases raise a number of arguments relating to domestic law, EU law and rights under the European Convention on Human Rights. However, most significantly, they include an argument that the power to remove passports under the Royal Prerogative has been abrogated by the enactment of the Terrorism Prevention and Investigation Measures Act 2011, which includes a power to impose travel measures requiring an individual to surrender a passport. The cases are also among the first to involve the use of closed material procedures under the Justice and Security Act 2013, where the Claimants and their representatives are excluded from parts of the hearing, with their interests represented by Special Advocates. Judgment has been reserved. 

David Blundell appeared as junior counsel on behalf of the Secretary of State, led by First Treasury Counsel, James Eadie QC, and the recently appointed British Judge to the European Court of Human Rights, Tim Eicke QC.