QUEEN'S BENCH DIVISION
Strand. London, WC2A 2LL
B e f o r e :
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) Mr Hugh Southey QC and Mr Barnabas Lams (instructed by Scudamores Solicitors) for AM 2nd Claimant
(3) Ms Stephanie Harrison QC and Mr Edward Grieves (instructed by Fountain Solicitors) for AS 3rd Claimant
(4) Mr R de Mello (instructed by Jackson Canter Solicitors) for FM 4th Claimant
Mr James Eadie QC, Mr Charles Bourne and Mr Paul Greatorex (instructed by Treasury Solicitors) for the Defendant
Miss Judith Farbey QC (instructed by SASO) Special Advocate
Hearing dates: 22 April 2013
Crown Copyright ©
MR JUSTICE OUSELEY:
"There are over forty cases currently before the Administrative Court in which Claimants are seeking judicial review of decisions of the Secretary of State for the Home Department refusing to grant them naturalisation as British citizens under section 6 of the British Nationality Act 1981. The refusals have been on the grounds that the SSHD was not satisfied that the applicant was of good character. However, the common feature of the cases is that few or, occasionally, no reasons have been given as to why the Secretary of State was not so satisfied. She has explained that to give more reasons would be harmful to national security. Likewise, she is not willing to disclose documents upon which she relied in reaching her decisions. This judgment concerns a directions hearing which I held in four selected naturalisation cases which raised the question of whether and if so in what circumstances and with what consequences a Closed Material Procedure, CMP, could be held where issues of national security arose."
"23. The essence of the various Claimants' grounds is that, before any adverse decision is made on an application for naturalisation, the applicant should be told of the SSHD's areas of concern so that they can be addressed as far as possible. After an adverse decision is made, the applicant should be told the reasons and basis for the refusal of naturalisation, or at least sufficient of them, so that he can respond effectively to them. The absence of sufficient information at either stage makes the refusal unfair. The essential and immediate purpose of the proceedings is to obtain a remedy in respect of the absence of sufficient notice of the areas of concern and of the reasons to enable them to be responded to effectively. That can be put as a claim for declarations that the refusals are unfair, in breach of natural justice and in other ways too, on the basis that fairness required greater disclosure. The cases are far more about the fairness of the procedure thus far adopted by the SSHD than about the substantive merits of a decision the basis for which the Claimant has not been told much about. Disclosure is effectively the substantive relief.
24. One of the matters of concern to the Claimants is that they are not in a position to challenge the decisions on other traditional Wednesbury grounds since they do not know what the bases for the decisions were. They would not, normally, expect at this stage of the argument, when the grounds for refusal are known only in the most general terms, that they could succeed in obtaining an order quashing the refusals on their substantive merits, let alone an order that naturalisation be granted."
"55. Before turning to the submissions about CMP, I add two observations. The ordinary principles of common law fairness, implied into the 1981 Act, cannot require the SSHD to ignore relevant material on the grounds that it could not be disclosed in Court and in consequence grant naturalisation despite being satisfied that the applicant was not a person of good character. That would first require the SSHD to act contrary to the public law duty, implicit in the Act, to have regard to all material considerations; see A (No 2)  2 AC 221. Second, it would require her to grant naturalisation when she was satisfied that a person was not of good character, contrary to what he express terms of the Act require.
56. The claim to PII is a Ministerial duty; see paragraphs 127 and 146 of Al Rawi; Lords Mance and Clarke respectively. Parliament cannot rationally be taken to have legislated by implication that the SSHD had to choose between breaching her duty to protect national security in order to defend her decision, or to grant naturalisation to applicants who she was satisfied were not of good character. It would require the clearest legislative language to impose so dire and dangerous a dilemma. It is idle to suppose that Parliament would be unaware that the SSHD might have to take into account information, sensitive on national security grounds, which was relevant to her judgment of whether an applicant for naturalisation was of good character. The Court would have already ruled that the interests of national security required that the undisclosed material should remain undisclosed. The lack of full disclosure of areas of concern would have been justified to and upheld by a judge. An absence of full or any reasons for the decision in those circumstances could not permit the inference that there were no or no satisfactory reasons. Article 6 does not require such a result."
"If the SSHD gives evidence that there were good reasons and a sound relevant basis for her decision, having considered the Claimant's representations, which she could not further disclose, it would be impossible for the Court fairly or reasonably to hold that she was wrong in saying that. The Claimant would have no prospect of persuading the Court to the contrary. It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win. So there is no point in it going to trial."
"For the same reasons, there is really no second possibility that the SSHD must lose. The Court cannot require the SSHD either to disclose material harmful to national security in order to prove the lawfulness of her conclusion that the Claimant was not of good character, when the Court itself had decided against ordering disclosure, or to grant naturalisation in breach of her statutory duty, when she was not satisfied that he was of good character."
"62....The SSHD would still be required to have regard to all material factors. The Court would rule that the material should not be disclosed. The Court would then rule again in the same way. It is impossible to see that the decision could be held to be irrational by a court which knew it did not have all the evidence, or that the Court could then hold that only one decision, namely to grant naturalisation, was lawful. The inextricable circle would bring the law into disrepute, and advance neither side.
64.. .In my judgment there are only two realistic options: either the Claimant loses, or loses in all realistic probability, or there is a CMP."
The position of the parties
The PII hearings
"First, there is an obvious risk of inadvertent disclosure, by the representative eg in discussions with other representatives or clients, or to others, or in paper management. It is self-evident that the more who have the material, the greater the risk of inadvertent disclosure. The difficulties in managing the separation between open and closed material in terms of questions of witnesses, discussions with advocates in submissions, indeed judgment writing including technical support and publication, would all be greatly increased. All this increases the risk of accidental disclosure. It is easy to see why the experience when these suggestions were tried was an unhappy one. If cross-examination is proceeding on a topic which involves a restricted open document or point, it would have to stop while people left court; the point would be potentially highlighted and inferentially it could be revealed widely. It might give rise to very strong questions from a client to his representative as to why a point had not been pressed, leading to inadvertent disclosure. The answer to a judicial question raised in open submission might make avoidance of reference to such material very difficult, and asking questions in open is already inhibited enough by knowledge of the closed material. The ability to remember which different system applied to which material during a hearing would make for error on all sides. These might be very difficult to correct and could sell the pass for resistance to full disclosure, as we have already seen happen with inadvertent disclosure. If those risks do not matter in relation to any particular material, that is because it is in reality open."
"34. Third, it would involve the Commission being asked to take a view about the willingness and ability of an advocate or representative, barrister or solicitor, to abide by the terms of his undertaking. The Commission does not accept that the mere fact that a representative has a professional qualification suffices to ensure that the undertaking would not be broken, and broken in circumstances which made the breach impossible to detect. Lord Woolf in Roberts pointed out that not all professionals could be trusted. Accordingly, such a process would put the Commission in a wholly invidious position of potentially distinguishing between representatives, or even between representatives from the same firm or chambers, on what might be impression or closed objection, or of having to raise such matters with a representative which could give an impression of bias. It would involve the Commission undertaking some distasteful, inadequate and primitive vetting for integrity and carefulness in substitution for the developed vetting process which special advocates undergo. It is not to be assumed that all open advocates would be acceptable as special advocates by the Attorney General or would pass the vetting process, although some open advocates have done so in other cases. The alternative of simply accepting all lawyers as equally trustworthy rather highlights the weakness of Mr Blake's point. Such an approach could only work if the material were in reality open. The prospect of a penalty is no substitute for not running the risk in the first place."
Common law duty of fairness
Procedural protection for Article 8, 9 and 10 rights.
"grounds for refusing naturalisation that the Claimants would otherwise qualify for, do have an adverse impact on social reputation, render it more difficult to travel, and leave the Claimants in a vulnerable state of either statelessness as refugees, or unable to obtain future security as to their continued residence here."
"In other cases, the Convention may apply, and substantive issues of proportionality may have to be resolved. Different considerations may arise in such cases. These are factors which must be taken into account when the judge decides whether to request the appointment of a special advocate. It appears to us that the judge's conclusion that the Convention is engaged was not made on a sufficiently case-specific basis."
"Ministers, accountable to Parliament, are responsible for national security; judges are not. However, even in that context, judges have a duty, also entrusted by Parliament, to examine Ministerial decisions or actions in accordance with the ordinary tests of rationality, legality, and procedural regularity, and, where convention rights are in play, proportionality. In this exercise great weight will be given to the assessment of the responsible Minister. However, where rights under Article 10 are engaged, given the special importance of the right to free speech, it is for the court, looking at the interference complained of "in the light of the case as a whole", to determine whether the reasons given to justify the interference were "relevant and sufficient". This will involve a judgment whether the measure taken was proportionate to the legitimate aims pursued, based on "an acceptable assessment of the relevant facts", and in conformity with the principles embodied in Article 10 (see Cox) above). A range of factors may be relevant, including whether the speaker occupies "a position of influence in society of a sort likely to amplify the impact of his words" (par 42 above). The supervision must be "strict", because of the importance of the rights in question, and the necessity for restricting them must be "convincingly established"."
"11. In Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 119 and 123 the court said:"
"119...there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention...
123. Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information."
12. In Turek v Slovakia (2006) 44 EHRR 861, para 113 the court was concerned to ensure that procedural protection is "practical and effective"."
13. These concepts of "effectiveness" and "guarantees against arbitrariness", coupled with "the benefit of adversarial proceedings" were reiterated in Lupsa v Romania (2006) 46 EHRR 810, paras 34-38; Liu v Russia (2007) 47 EHRR 751, paras 59-62 and CG v Bulgaria (2008) 47 EHRR 1117, para 40. Equally, they all acknowledge that, in cases concerned with national security there may need to be "appropriate procedural limitations on the use of classified information.""
"36. The ECtHR has held in a number of cases that, even where national security is at stake, the concept of the rule of law in a democratic society requires that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body, competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information; and the individual "must be able to challenge the executive's assertion that national security is at stake": see Al-Nashif v Bulgaria (2003) 36 EHRR 37 paras 123-124."
"...I should add that what should be taken into account in determining the procedural protections that are required in this context is (i) the extent of the interference with the art 8 and (ii) the nature of the national security interests at stake. Thus, for example, what is required where bail conditions involve only a modest interference with an individual's art 8 right rights may differ from what is required where the interference is substantial."
"by a bare statement that matters withheld on PII grounds would have been fundamental to a public office holder's decision, that decision becomes automatically proof against being judicially reviewed".
"64. The analogy with a PII application under CPR 31 is not exact. However these applications for judicial review do raise the first question, namely whether greater disclosure could be made without damaging a vital public interest. If the answer is yes, the claimants are likely to succeed in setting aside the present decision refusing their applications, because if greater disclosure is made to them they may be able to make more informed representations than they have previously been able to do. If the answer is no, the applications are likely to fail because the proceedings have been as fair as can be without damaging a vital public interest."
FM: the substantive decision
Form of Order