England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/10/2015

Lord Justice Burnett

1. We are concerned with an application made by the Secretary of State for the Home Department for a declaration pursuant to section 6 of the Justice and Security Act 2013 to permit her to make a closed material application in these judicial review proceedings. At the conclusion of the oral argument we announced our decision to make the declaration. These are my reasons for doing so.
2. The claimant is a British National. On 29 April 2014, using her powers under the Royal Prerogative, the Home Secretary cancelled his British passport. She did so in accordance with a written ministerial statement made on 25 April 2013 entitled 'The Issuing, Withdrawal and Refusal of Passports'. The letter written to the claimant notifying him of the decision provided an indication of the underlying reasons:

"You are a British National who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest."

These proceedings were issued on 26 November 2014. Two days before filing summary grounds of resistance, the Home Secretary provided further information to the claimant by letter dated 16 February 2015 in these terms:

"You are a British national involved in terrorism-related activity. It is assessed that you are an Islamist extremist. It is assessed that prior to the exercise of the Royal Prerogative you have been in possession of media concerning anti-American and Israeli propaganda and video clips in support of jihad and violence. It is assessed that prior to the exercise of the Royal Prerogative you may have maintained contact with associates assessed to be located in Syria where they were engaged in Islamist extremist activities. It is assessed that prior to the exercise of the Royal Prerogative you were likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom."

These short paragraphs comprise the reasons provided to the claimant for the withdrawal of his passport. The decision was taken on the basis of information provided to the Home Secretary which, in a statement dated 28 April 2015, she says "cannot be disclosed in OPEN because of the damage such disclosure would cause to the interests of national security." She describes that as her "clear view".

3. We heard submissions in open court from the parties and in writing in open from Special Advocates. We heard submissions in a closed session in the absence of the claimant's team during which we considered the material and further submissions from Mr Underwood QC as Special Advocate. In the event, it is unnecessary to produce a closed judgment in addition to this open judgment.
4. The claim for judicial review, which seeks the quashing of the decision to cancel the claimant's passport and damages for breach of article 8 of the European Convention on Human Rights, is brought on various grounds. It is sufficient for the purposes of this judgment to record that the claimant relies upon EU law, which provides the right to exit one's own country for the purpose of exercising free movement rights within the EU and also upon the ECHR and the common law. His case is that the cancellation of his passport is unlawful, in particular that it is a disproportionate response to whatever risk the Home Secretary (mistakenly) believes he poses.
5. The claimant relies particularly on EU rights in the light of the decision of the Court of Justice of the European Union in Case C – 300/11 ZZ (France) v Secretary of State for the Home Department [2013] QB 1136. EU law recognises that the relevant free movement rights may be curtailed in the public interest including on grounds of national security (see Article 27 of Directive 2004/38/EC). The claimant points to Article 30 (2) of the same directive which provides:

"The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision in their case is based, unless this is contrary to the interest of state security."

6. The Luxembourg court was concerned in ZZ to determine the nature and extent of disclosure required by EU law in what it described as 'state security' cases. In paragraphs 65 to 69 of its judgment it provided the answer:

"65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision… is based, as the necessary protection of state security cannot have the effect of denying the person concerned of his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that Directive ineffective.

66. Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the member state concerned – on which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise state security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

67. In that context, the national court with jurisdiction has the task of assessing whether and to what extent the restrictions on the rights of the defence arising in particular from a failure to disclose the evidence and the precise and full grounds on which the decision taken under article 27 of Directive 2004/38 is based are such as to affect the evidential value of the confidential evidence.

68. Accordingly, it is incumbent on the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.

69 In the light of the foregoing considerations, the answer to the question referred is that articles 30(2) and 31 of Directive 2004/38, read in the light of article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under article 27 of that Directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence."

7. In the light of the nature and breadth of the claimant's challenge Mr Southey QC submits that the substance of the decision is in issue. The full reasons for the Home Secretary's actions should be before the court. He accepts that if there is sufficient justification for non-disclosure of such material those concerns can be met by a closed procedure, subject to the minimum disclosure requirements guaranteed by law. For that reason the claimant "was not saying it was inappropriate" to make the declaration but that the statutory tests must be met before making the declaration having regard particularly to the submissions of the Special Advocates. They have seen the sensitive material.
8. Mr Southey submits that before the issue whether to allow the Home Secretary to make closed material applications in these proceedings is determined it is necessary to decide whether the claimant's EU rights are in play. That is because the answer to that question might condition the scope of disclosure required to determine the proceedings, given the approach of the Luxembourg Court in ZZ. To my mind that puts the cart before the horse. The declaration sought by the Home Secretary allows an application to be made by opening the door to a closed procedure. Detailed questions of what should be disclosed or gisted from the closed material would follow at the next stage of the procedure when the material is considered by the court for disclosure purposes with the benefit of full submissions on behalf of the Home Secretary and from the Special Advocates. On behalf of the Home Secretary, I did not understand Mr Eadie QC to dispute that the question of what should be disclosed would be on the hypothesis that the claimant has an EU law claim. I do not suggest that there is necessarily any difference between the standard of disclosure required by domestic law, EU law or the ECHR. Such arguments, if they arise, are for later in these proceedings.
9. The question whether the claimant has an arguable claim for judicial review, including on his EU law claim, will be determined at a rolled-up permission hearing in respect of which a direction has already been given.
10. The proper approach to applications under section 6 of the 2013 Act has been considered in a number of cases at first instance and in two in the Court of Appeal in which Richards LJ gave the substantive judgments: R (McGartland) v. Secretary of State for the Home Department [2015] EWCA Civ 686 and Sarkandi and others v. Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ 687. As material, section 6 provides:

"6. Declaration permitting closed material applications in proceedings

(1) The court seised of relevant proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.

(2) The court may make such a declaration –

(a) on the application of

(i) the Secretary of State … or

(ii) any party to the proceedings, or

(b) of its own motion.

(3) The court may make such a declaration if it considers that the following conditions are met.

(4) The first condition is that –

(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or

(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –

(i) the possibility of a claim for public interest immunity in relation to the material ….

(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.

(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (2)(a) need not be based on all the material that might meet the conditions or on material that the applicant would be required to disclose).

(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.

(8) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material ('a relevant person').

…

(11) In this section –

'closed material application' means an application of the kind mentioned in section 8(1)(a);

'relevant civil proceedings' means any proceedings (other than proceedings in a criminal cause or matter) before –

(a) the High Court,

(b) the Court of Appeal, or

(c) the Supreme Court

'sensitive material' means material the disclosure of which would be damaging to the interests of national security."

11. Section 7 provides for a section 6 declaration to be kept under review and to be revoked if the condition in section 6(5) is no longer satisfied. Section 8, when read with rules of court found in CPR Part 82, makes provision with the full involvement of Special Advocates for the detailed consideration by the court following a section 6 declaration of disclosure of material sought to be protected or its gisting notwithstanding the position of the Government that on public interest grounds disclosure should not be made. A full discussion of the statutory scheme may be found between paragraphs 9 and 20 of the judgment of Richards LJ in McGartland.

The Statutory Pre-condition

12. It is convenient to deal with section 6(7) first because it amounts to a pre-condition that must be satisfied before the section 6 application can be entertained by the court. It requires the Home Secretary to consider an application for public interest immunity ("PII") before inviting the court to make a declaration under section 6. The Home Secretary's statement confirms that she has done so. No issue arises on the pre-condition.

The First Condition

13. The first condition (see section 6(4)(a and (b)) calls for an assessment of whether the Home Secretary would be required to disclose some or all of the sensitive material, were it not for the possibility of a PII application. The skeleton arguments, particularly in open from the Special Advocates, questioned whether the Home Secretary would be required to disclose any of the sensitive material, subject to a PII application. However, it became clear in the course of oral argument that the breadth of the challenge mounted by the claimants was broader than the Special Advocates had originally understood it to be and the point faded away. The circumstances in this case echo those in Sarkandi at paragraphs 43 and 49. The reasons and evidential foundations for the decision to withdraw the claimant's passport are directly in issue in these proceedings. The Home Secretary is entitled to rely upon the sensitive material in seeking to defeat the claim. In doing so she would be obliged to disclose it, subject to a PII claim. Furthermore,

"43 … The Secretary of State is entitled to rely on that material in defending the rationality of his decision to propose the claimants; and he would as a matter of principle be required to disclose to the claimants (subject to the possibility of a PII claim) any material so relied on. The requirement of disclosure would also arise from the Secretary of State's duty to provide the court with a full explanation of why he made the decision under challenge. That duty was described in the passage from R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs cited by Bean J (see paragraph 33 above). It was considered and applied by the Divisional Court in Secretary of State for the Home Department v Special Immigration Appeals Commission [2015] EWHC 681 (Admin). The duties of disclosure applicable in the circumstances here under consideration are therefore different from, and more extensive than, the duty of disclosure described in Tweed v Parades Commission for Northern Ireland …"

14. The same considerations arise in this claim. Having considered the sensitive material, I have no doubt that its disclosure would be required in the course of the proceedings were it not for the possibility of a PII claim. In my judgment the first condition is met.

The Second Condition

15. The focus of argument was on the second condition, namely whether it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration. The essence of the argument, advanced by Mr Underwood, was that it is not necessary to embark upon a closed material procedure because a PII exercise (with gisting) would result in sufficient material being put into open to enable the issues in the proceedings to be determined fairly and justly. No PII application is before the court. Mr Southey submits that the proper approach is for the court to evaluate the sensitive material using its own experience in these matters and take a view as to whether it represents a realistic course. Mr Underwood submits that it is for the Home Secretary at this stage to demonstrate that it is "obvious" that a PII procedure with gisting would not meet the justice of the case. If she fails to do so the declaration would be inappropriate. Both rely upon paragraphs 61 to 63 of the judgment of Richards LJ in Sarkandi:

"61. In my view the judge was right that it cannot be in the interests of the fair and effective administration of justice in the proceedings to make a section 6 declaration and thereby open the gateway to a closed material procedure unless it is necessary to do so, and that it will not be necessary to make a declaration if there are satisfactory alternatives. …

62. The judge gave due consideration to whether an application for PII would represent a satisfactory alternative. …

63. The judge took the view that the result of a PII application would be to exclude from consideration the detail of the material available to the decision-maker, detail which was essential to an evaluation of the substantive case. There might be greater scope for gisting in the PII context than the judge accepted, but I do not think that it was necessary or appropriate for him to consider the application of PII principles any more extensively than he did. It seems to me that a PII claim would be bound to lead to the withholding, and thus to the exclusion from consideration, of important detail in the material taken into account by the Secretary of State in reaching his decision, and that the judge was right to say that such detail was essential to an evaluation of the substantive. To exclude the detail from consideration would not only be unfair to the Secretary of State but might preclude a trial at all, on the principles in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786. In the circumstances, even allowing for the disadvantages of a closed material procedure, the judge was entitled to conclude that a PII claim was not a satisfactory alternative to a section 6 declaration."

16. We have seen that both section 6(7) and section 6(4) make express reference to PII but section 6(5) does not. In Sarkandi at paragraph 58 Richards LJ identified the general approach to construction of the material provisions of the 2013 Act:

"58. The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliament's assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly. Appropriate safeguards against inappropriate or excessive use of a closed material procedure are built into the provisions themselves, starting with the conditions for a section 6 declaration and encompassing the provisions for review and revocation of a declaration and those governing applications for permission not to disclose material in proceedings in relation to which a declaration is in place."

17. In Sarkandi the judge at first instance had considered and rejected a submission from the Special Advocates that an application for PII combined with the provision of a gist would be a practicable alternative to a closed material procedure. In the Court of Appeal the submission was repeated. It was submitted that it was not apparent on the basis of the closed material that gisting in the context of PII was not practicable to achieve a fair hearing without a closed material procedure. The judge should have tried the PII issue first. Paragraphs 61 and 63 of the judgment were the court's response to that submission which must be read subject to what was said by Richards LJ in paragraph 59:

"59. In the context of the present case I would place particular emphasis on the provisions of section 8 of the 2013 Act and the rules made under it to the effect that if the court gives permission for material to be withheld, it must consider requiring the Secretary of State to provide a summary of the material to the claimants and their open legal representatives, and that if the Secretary of State elects not to provide such a summary the court may give directions that he is not to rely on the relevant points in his case or is to make concessions. As I have said, those provisions must be read and applied in a manner consistent with article 6 and, therefore, the disclosure requirements laid down in AF (No.3). "

18. Mr Underwood's submission that the Home Secretary must demonstrate at this stage that it is obvious that a PII and gisting exercise would not meet the justice of the case would, if right, require the substance of a PII exercise to be undertaken in conjunction with a section 6 application. That approach has been rejected by the Court of Appeal because it would be incompatible with the statutory scheme. The disclosure exercise within a closed material procedure is generally a detailed and time consuming one, which requires both the government department and special advocates to consider exhaustively every aspect of the content of the sensitive material with a view to developing written and oral submissions on areas of dispute. The section 6 application procedure does not envisage such an exercise.
19. In my judgment Mr Southey's suggested approach is consistent with the conclusions of Richards LJ in paragraphs 61 to 63 of Sarkandi. The court has the sensitive material and will generally be in a position to take a view, in the light of its nature and content together with its importance as compared with open material, whether the likely result of a PII exercise (including gisting) would put sufficient material in open proceedings to meet the justice of the case. The starting point is the open position of the Home Secretary, already referred to, that the sensitive material cannot be disclosed. Of course, no balancing exercise weighing the national security concerns against the public interest in disclosure has been conducted by the Home Secretary as envisaged by R v Chief Constable of West Midlands, ex parte Wiley [1995] 1 AC 274. To my mind it is overwhelmingly likely, were a PII application to be made rather than using a closed material procedure, that the essence of the material upon which the Home Secretary acted would be protected from disclosure. The material which the claimant would like to see, and that the court needs to have to resolve the legal issues, would be precisely that which almost certainly would be protected from disclosure. Mr Underwood suggested that there were discrete aspects that might be opened up without harm and others that might be gisted. He will be able to develop those submissions in a disclosure hearing. I would not wish to prejudge the issue it in any way and readily accept that some disclosure or gisting may follow the section 8 procedure. That said, as was the position in Sarkandi, it is clear that a PII claim would result in the exclusion of important detail of the material relied upon by the Home Secretary in making her decision. That detail is necessary to the fair and effective administration of justice in these proceedings. Gists, summaries and disclosure at the margins, on the basis of the material currently before the court, will not provide an adequate alternative.
20. For these reasons I consider that the second condition is satisfied.

Discretion

21. Mr Underwood developed a subsidiary submission. The making of a declaration under section 6 is a discretionary matter. He submits that there is a keen public interest in any case which involves the cancellation of the passport of a British national. For that reason, he submits that a closed material procedure is inappropriate. Everything relating to this case should be open, even if the result would be that little or nothing of the underlying material could be disclosed and irrespective of the disadvantage it would entail to the court and the parties in having to resolve the issues.
22. The language of section 6, "may", undoubtedly imports a discretion to refuse to make the declaration even if the statutory pre-condition and two conditions are satisfied. The court is not obliged to make the declaration. Parliament has chosen not to require there to be a closed material procedure in these circumstances. That is likely to have been because of its sensitivity in avoiding dictating how proceedings should be conducted in an environment where the range of circumstances in which the question of a section 6 declaration might arise are very wide indeed. There may be circumstances in which it would not be appropriate to make the declaration after a finding that the statutory conditions are satisfied. That said, given that the second condition requires the court to conclude that it is in the interests of the fair and effective administration of justice in the proceedings to make the declaration, they are likely to be few and far between. There is nothing about the circumstances of this case which has led me to conclude that as a matter of discretion the declaration should not be made.

Directions

23. An earlier direction has been made that the claim should be determined at a rolled-up hearing for permission. At the conclusion of the hearing we directed that the rolled-up hearing should take place before a divisional court. We also directed that the disclosure process would be heard before Cranston J and invited the parties to submit further draft directions in that regard for our consideration.

Conclusion

24. Pursuant to section 6 of the Justice and Security Act 2013 we make a declaration that these proceedings are proceedings in which a closed material application may be made to the court by the Secretary of State for the Home Department, she being the party who would be required to disclose the sensitive material.

Mr Justice Cranston

25. I agree.