AHK and Others v The Secretary of State for the Home Department  EWHC 1117 (Admin) – Read judgment
Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.
So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.
This decision of Mr Justice Ouseley deals with four cases where applications for British citizenship through naturalisation had been refused on the basis that the Secretary of State did not consider them to be “of good character” (something which she is required to consider them to be under the British Nationality Act 1981 before she may grant them British nationality), where few or no reasons for the refusal have been given on the basis that to reveal those matters would be harmful to national security.
The hearing considered the impact of the decision in Al Rawi, described in detail here, another closed material case. The Court began by noting that there are several duties imposed on the Secretary of State when making a decision on good character: a duty of fairness, requiring the Secretary of State to identify to the applicant areas of concern so she may make submissions on those topics before the decision is made; a similar duty to give reasons for the decision after it has been taken; a duty of candour in judicial review proceedings requiring disclosure of relevant documents and a full explanation of the decision and background facts. The Court explained:
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…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. (Paragraph 23)
The litigation has reached the stage where a Public Interest Immunity hearing is necessary, to decide what relevant material could be withheld by the government on the basis that it would be in the public interest to do so.
The Court considered that whether a CMP procedure would later occur should have no effect on how the PII process is carried out.
Th real CMP problem
The Court went on, “The real CMP problem relates to substantive challenges, which are likely to arise in subsequent actions after representations on any disclosed material have led to a further adverse decision by the SSHD.” (Paragraph 53).
Supposing that the Secretary of State complied with her duties of disclosure, but there remained material which was properly not disclosed yet which was relevant to the case. In this situation, without CMP, the court cannot fairly review the decision, because it does not have access to all the information upon which the decision was taken. Were the Court to attempt to do this, and the government lost, then the same decision would be taken again, on the basis of material including that which was not disclosed, and the same result would occur. A CMP could be a way round this, as the only real alternative is for the Claimant to lose because the Court could not find that the Secretary of State had made an unlawful decision, given that not all the material underlying the decision was seen by the Court.
The Court found that there were compelling reasons why Al Rawi did not prevent a CMP being held in this case: there was no finding in Al Rawi that CMP hearings could not be held in judicial review proceedings. Al Rawi had involved claims for damages in tort and for breaches of the Human Rights Act 1998.
However, the Court considered that the decision did mean that legislation was required for a CMP in judicial review proceedings, and consent of the parties was insufficient for a CMP to be held.
A decision for Parliament
It was recognised that ordinarily, the Court has an inherent jurisdiction to adapt its procedures in order to make them fair. However, in Al Rawi, it was held that even if such a jurisdiction exists, it should not be exercised in an ordinary civil claim for damages. Importantly it was noted that,
… the crucial point, as I see it, was not the form of action, nor even the legal nature of the issues. The crucial point was the nature of the process whereby decisions would be reached in ordinary civil claims for damages, which led the Supreme Court to hold that it was for Parliament to rule on, and devise if it wished the boundaries for such a process. The change was of such a nature, controversy, and so contrary to the normal procedures of a Court that Parliament should reach the decisions on whether and how to make such a change. I also regard the strong but differing views of the Supreme Court Justices about the desirability, fairness, circumstances and operation of a CMP as meaning that the resolution should be Parliamentary rather than of the Court’s devising. (Paragraph 81)
The Supreme Court in Al Rawi had been divided about whether a CMP could be consented to. In this case the Court considered that it could not. First, the Supreme Court had appeared to proceed on the basis that a Defendant would consent or could be ordered to do so. But “I do not see that this procedure should only be available to the advantage of one party” (paragraph 89).
Secondly, the Courts would be devising the procedure. However, arguments about what form the procedure would take were important to the Supreme Court’s decision. This raises the question, “How far does the consent have to extend: to principle or to every aspect of procedure?” (Paragraph 90)
Thirdly, such consent would necessarily mean that, at least in the narrow sense, the Court has jurisdiction to decide the issues. A process which would otherwise require legislation would become available because of the parties’ consent. This ignores the much wider public interest in the conduct of proceedings of this nature.
Fourthly, the Claimant would have to be advised that the matter was at least arguable, to the extent that it is worth holding a CMP. But the PII judge could not advise whether or not there was something in the closed material which made a CMP worthwhile. A Special Advocate might advise, but the Secretary of State may object to disclosure of the degree of knowledge which the Security Service has of the Claimant, which might be touched upon in that process.
“I therefore hold that in the naturalisation cases, there can be no CMP even by consent, save as is inherent in the PII process. The cases will have to be considered in the light of anything which emerges from the PII process.” (Paragraph 97).
The case therefore proceeds to a PII hearing without a decision about what may occur thereafter. That will be dependent upon the result of the PII process.
Given the difficult questions which CMP poses, involving national security, the right to fair trial and the public interest in justice being transparent, it seems entirely appropriate for the Court to have regarded the use in these proceedings of CMP as a matter for Parliament. When such fundamental issues are at stake in a democratic society, which have a bearing on the rule of law, public interest and very important rights of the individual, the legislature is the appropriate forum for the decision to be taken.
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