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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 >> K, A & B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs [2017] EWHC 830 (Admin) (26 April 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/830.html Cite as: [2017] EWHC 830 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE OUSELEY
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K, A and B |
Claimants |
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- and - |
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SECRETARY OF STATE FOR DEFENCE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS |
Defendants |
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Mr Ben Watson and Mr Jonathan Glasson QC (instructed by the Government Legal Department) for the Defendants
Mr Kieron Beal QC and Mr Zubair Ahmad as Special Advocates (instructed by The Special Advocates' Support Office)
Hearing date: 26 January 2017
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Crown Copyright ©
Mr Justice Ouseley:
The scope of the claims
The effect of the duties in the JSA
What is the right test in relation to Article 6 where national security interests would be breached by disclosure?
"This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
That test was treated by the Court of Appeal in Bank Mellat v HM Treasury (No.4) [2015] EWCA Civ 1052; [2016] 1 WLR 1187 at [34] as meaning that sufficient disclosure had to be given to enable the recipient to give sufficient instructions to deny or refute, so far as possible, the essential allegations against him. It also appears that in cases to which ZZ (France) v SSHD (No.2) [2014] EWCA Civ 7, [2014] QB 820 applies, it is the gist which is required, though these claims do not fall within the ZZ category.
"It held (by a majority) that there was no absolute requirement that the detail of allegations, which would be revealed in normal litigation, should be disclosed where the interests of national security required secrecy. The fundamental right to a fair trial had to be balanced against the strong countervailing public interest in maintaining national security. There was an important distinction between the right to a fair hearing (which is absolute) and the right to minimum disclosure of relevant information (which is not). On the particular facts of that case, the disadvantage to the claimant of withholding secret material was outweighed by the paramount need of the Home Office to protect the integrity of the security vetting process."
"In summary, therefore, the requirements of article 6 depend on context and all the circumstances of the case. The particular circumstances in Tariq included the fact that (i) it did not involve the liberty of the subject; (ii) the claimant had been provided with a degree of information as to the basis for the decision to withdraw his security vetting: he was not completely in the dark; (iii) there was real scope for the special advocate to test the issue of discrimination without obtaining instructions on the facts from the claimant; and (iv) this was a security vetting case and it was clearly established in the Strasbourg jurisprudence that an individual was not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the vetting regime itself (para 159)."
"In my judgment the touchstone to the degree of disclosure required by both the ECHR and EU law viewed in light of the Charter is the nature and impact of the decision in question in the sense described in Kadi at paragraph 102. The disclosure required in the AF (No. 3) case under the ECHR and the ZZ case under EU law is reserved for cases which concern objectively high level rights. Nomenclature in this area is apt to confuse. All the rights guaranteed by the ECHR (more formally the Convention for the Protection of Human Rights and Fundamental Freedoms) and by the Charter (more formally the Charter of Fundamental Rights of the European Union) are 'fundamental'. Yet as the jurisprudence of both the Strasbourg and Luxembourg courts recognise some of those rights admit of no qualification or derogation, and those which may be qualified demand different levels of justification from decision makers in support of interference. Within the rights conferred by the EU, which cover a myriad of activities, the flexible approach to article 47, whether or not the instrument in question confers independent procedural rights, also creates a sliding scale for the purposes of disclosure just as has been recognised by the Strasbourg Court for the purposes of article 6 ECHR.
30. It is clear that the disclosure required by the Luxembourg Court in the ZZ case was conditioned by two important considerations. The first was that the decision interfered with what is regarded as one of the most important rights conferred upon its citizens by EU law, namely free movement. Secondly, the relevant directive contained explicit procedural safeguards which conferred a right to information, derogation from which had to be strictly construed."
The submissions
Applying those principles to this case
Lord Justice Simon: