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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> XH v Secretary of State for the Home Department [2015] EWHC 2932 (Admin) (21 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2932.html Cite as: [2015] EWHC 2932 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
THE HON MR JUSTICE CRANSTON
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XH |
Respondent/ Claimant |
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- and - |
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Secretary of State for the Home Department |
Applicant/ Defendant |
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Hugh Southey QC and Barnabas Lams (instructed by Arani Solicitors) for the Respondent
Ashley Underwood QC and Bilal Rawat (instructed by SASO) as Special Advocates
Hearing dates: Thursday 8 October 2015
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Crown Copyright ©
Lord Justice Burnett
"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".
"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."
"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."
"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."
The Statutory Pre-condition
The First Condition
"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 …"
The Second Condition
"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."
"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."
"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). "
Discretion
Directions
Conclusion
Mr Justice Cranston