National security case in Supreme Court

The UKSC has handed down its judgment in this case on 7 March 2012. The Court has allowed these appeals. The Judgment is available here and the press summary is available here.

The past decade has produced a series of national security cases. Such cases are heard by the Special Immigration Appeals Commission (SIAC) which operates by relying on special advocates and closed evidence. SIAC was established following the Canadian model in the aftermath of Strasbourg’s historic decision in Chahal v UK (22414/93) [1996] 23 EHRR 413 – a case about a Sikh separatist – where the Court ruled that although national security may make the use of closed material unavoidable, national authorities are not free from domestic courts’ effective control. The story has continued ever since …

Just a couple of weeks after Strasbourg handed down its judgment in Othman (Abu Qatada) v UK (8139/09) [2012] ECHR 56 – where the Court found that an expulsion would be in violation of Article 6 because Mr Othman’s retrial in Jordan would include evidence obtained by torture, the hugely interesting case of PP (Algeria) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (formerly VV (Jordan ) (FC) and PP (Algeria) (FC) (Appellants) v SSHD (Respondent)) will be heard in the UK Supreme Court on 30 January 2012.

The case is being heard on appeal from W (Algeria) & Ors v SSHD [2010] EWCA Civ 898 where the Court of Appeal ruled on the (i) “Reverse Closed Evidence” issue; and (ii) “Irreducible Minimum of Information” issue. Sir David Keene, Jacob and Sullivan LJJ unanimously held that rule 4 of the SIAC Rules – whereby, amongst other things, SIAC “must satisfy itself that the material available to it enables it properly to determine proceedings” – did not have to be read subject to the common law right to a fair trial.

The Court of Appeal found that in SIAC proceedings no irreducible minimum of information had to be provided to the appellants about the risk they posed to national security. Furthermore, the appellants were not entitled to any procedural protection akin to the “closed material” procedure available to the SSHD’s witnesses.

Subsequently, the UKSC granted permission to appeal to seven of the eight appellants; VV (Jordan) was refused permission.

Proceedings in SIAC in relation to the appellants were recorded as (1) W v SSHD [2007] UKSIAC 34/2005 (2) Z v SSHD [2007] UKSIAC 37/2005; (3) G v SSHD [2007] UKSIAC 2/2005; (4) BB v SSHD [2007] UKSIAC 29/2005; (5) U v SSHD [2007] UKSIAC 32/2005; (6) PP v SSHD [2007] UKSIAC 54/2006; (7) Y v SSHD [2006] UKSIAC 36/2004.

The appellants are foreign nationals who, in the SSHD’s opinion, should be deported because they pose a threat to national security. Except W & PP, the appellants challenged SIAC’s proceedings in which the SSHD relied upon closed evidence to establish the risk to national security. The appellants claim that if deported they will be detained and tortured contrary to the principles enshrined in the European Convention on Human Rights.

The story of the Reverse Closed Evidence issue is such that appellant Z has obtained information which is relevant to his safety in Algeria (if he is deported) which he seeks to rely on before SIAC. The problem is that in the absence of a cast-iron guarantee that the information will not be disclosed to the Algerian Authorities, the source will not allow it to be used in SIAC proceedings. When Z sought an order preventing the SSHD from disclosing the information SIAC refused because it (a) did not have the power; and (b) might change its own view on the evidence. In relation to (a), in the Court of Appeal the SSHD narrowed the issues by accepting that the SIAC (Procedure) Rules 2003 allowed SIAC to prevent disclosure to the Algerian authorities but that to expect the state to irrevocably provide such a guarantee in advance of seeing the material in question was “an impossible order” to make.

As stated above, Z’s lawyers – relying on analogous terms of the Procedure Rules for closed material available to the SSHD – wanted a procedural ruling from SIAC which ensured that reprisals against witnesses or sources of material in Algeria would be avoided by “an absolute guarantee that their material will not be put before the Commission in circumstances where it might get back to Algeria”.

To this end Z had favoured an ex parte hearing where the SSHD would be excluded but the problem was that if SIAC conducted such a hearing and provided the SSHD with the evidence in question but then later changed its mind in favour of the state, then, the state would already be in possession of the material and to preclude the UK from discussing such material with friendly countries would undermine this country’s diplomatic and international relations. (“SIAC was not empowered to enjoin the Secretary of State from undertaking proper diplomatic activity.”)

In the Court of Appeal’s assessment of the competing needs of the appellants and national security, Sir David Keene sympathised with the predicament of the appellants in relation to their potential witnesses’ apprehensions – which were “inescapable” – but (at paragraph 27) found that safeguards such as anonymity orders and hearings in private mitigated the adversity faced by the appellants, whereas irrevocable orders preventing the SSHD “from disclosing material to a foreign state in any circumstances cannot be made by SIAC in advance of the Secretary of State seeing that material.” The Court also pointed to the fact that the guarantee sought was problematic as cases could arise (such as Z’s no doubt!) in which not sharing information about risks of terrorist outrages the UK would face diplomatic and strategic problems.

The Court, moreover, explained (at paragraph 26) that no parallel procedure existed in either the rules or the legislation which allowed the SSHD to be represented through a special advocate and that, at any rate, “nor could any advocate sensibly protect the public interest, which is one of the Secretary of State’s functions.”

The Court of Appeal also decided the second issue of an “Irreducible Minimum of Information” against the appellants. The Court considered a series of cases which arose under the Prevention of Terrorism Act 2005 and the regime for control orders which that statute birthed (following the House of Lord’s judgment in A & Ors v SSHD [2004] UKHL 56). The similarity, of course, is that in order to protect the interests of the person subject to the order (the controlee) the control order regime also uses closed material and special advocates: the Court, thus, focussed on Secretary of State for the Home Department v MB [2007] UKHL 46 and Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28.

Sir David Keene (at paragraphs 29 – 31) noted that although in MB members of the House of Lords took different views on whether a controlee’s rights to a fair trial under Article 6 ECHR were appropriately protected under the PTA 2005, the majority agreed that in rare cases failure to disclose closed material to the controlees would be incompatible with their Convention rights.

The House, confirmed this two years later in AF (No. 3) where it held that a controlee’s civil rights under Article 6 would be breached unless he had knowledge of the essence of the case against him and it was decided that following the Human Rights Act 1998 “the law” included the ECHR and therefore, when it was necessary, the provisions of the PTA 2005 would have to be read in a way which is compatible with controlees’ Article 6 rights. Taking A v UK (3455/05)(2009) 49 EHRR 29 into consideration the House acknowledged that the controlee had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.

The Court of Appeal cited Maaouia v France (39652/98) [2000] ECHR 455 to recall that an alien’s civil rights are not engaged where deportation proceedings are concerned. Thus, the appellants’ civil rights were not engaged where the SSHD had made a decision to deport someone because of national security. It was common ground between the parties that the appeals turned “on the basis of English domestic law as it applied to a case where Article 6 is not engaged” (at paragraphs 32).

Informed by the above observation, on the one hand, the SSHD argued that the question whether the common law right to a fair trial allows deportees to be provided of the essence of the case against them even where such disclosure damaged national security was decided by the House of Lords in RB (Algeria) v SSHD [2009] UKHL 10 (where it held no irreducible minimum of information had to be provided to an appellant before SIAC in a deportation case).

On the other hand, the appellants submitted RB (Algeria) was not conclusive on the issue where an appellant was a threat to national security and the right to a fair hearing exacted that a person should know the gist of the case against him in order to be able to meet the case advanced by SSHD. The distinction was made between a case where an appellant raised safety upon return because in such situations an appellant would produce their own evidence in relation to safety upon return. By contrast, where national security was at stake an appellant had to mount a defence to as why the allegation was being made. But the Court of Appeal remained unimpressed by such arguments.

The appellants accepted that under the “principle of legality” Parliament was entitled to interfere with fundamental rights so long as it did so clearly and unambiguously. Yet they proceeded to argue their case on the basis that in enacting the statutory regime contained in the SIAC Act 1997 and associated SIAC (Procedure) Rules 2003, Parliament had “not squarely confronted what it was doing”. The appellants argued that the statutory regime empowered the rule maker to withhold the full particulars of the case against them but they were still entitled to know the gist of the case against them.

The appellants did not consider rule 4 of the Procedure Rules to be ultra vires the SIAC Act 1997 (as in RB (Algeria) Lord Phillips, at paragraph 82, held the rule to be intra vires), but instead made the point that the rule should be “read down” under section 3 of the HRA because there was no obligation upon the rule maker (the Lord Chancellor made the rules under section 5 of the SIAC Act 1997) to have made rules which mandated interfering with fundamental rights.

Rejecting such arguments the Court of Appeal ruled that it did not doubt that under the SIAC (Procedure) Rules 2003, rules 4 and 38 ensured that an appellant was not to be given the gist of closed material against him if imparting such information undermined national security. Since the rules were clear and unambiguous it was unnecessary for the Court to interpret them otherwise. Equally, in enacting the SIAC Act 1997 and by approving the Rules, Parliament had clearly confronted the fact that it was interfering with the right to a fair trial; the unfairness was authorised by Parliament.

With the above having been said, a week ago explaining National Security Case Law: A Continuing Trend Professor Adam Tomkins noted that:

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, noted briefly at p 788 of the book). The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

The book referred to in the extract is called British Government and the Constitution.

The Supreme Court’s Public Affairs Officer, Morag Calderbank, confirms that it is anticipated that the hearing in PP (Algeria) UKSC 2010/0237 will be broadcast live. It will be interesting to see (1) how much Abu Qatada’s case (where the UK is “actively considering an appeal to the Grand Chamber”) will influence these very important proceedings? and; (2) what part, if any, the Supreme Court’s recent judgments such as Al Rawi & Ors v The Security Service [2011] UKSC 34 – where it held that a judge may not order a closed material procedure in a civil claim for damages – and Home Office v Tariq [2011] UKSC 35  – where it found Mr Tariq did not need to be provided a gist – will play in proceedings?

Equally, it is important to remember that following the Justice and Security Green Paper the government wants to expand closed procedures beyond national security cases into all civil proceedings. Special advocates have responded to the government’s proposals by calling them “indefensible”: Joshua Rozenberg’s article Proposed procedures are misguided excellently explains it all.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Closed Evidence, Disclosure, ECHR, Human Rights Act, Removals and tagged , , , , , . Bookmark the permalink.

One Response to National security case in Supreme Court

  1. mkp says:

    Lord Phillips said that the Court has reserved its judgment. It was interesting to see Mr Palmer have a go at Mr Tam at the very end!!!

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