No right to gist of case before Special Immigration Appeals Commission

4 August 2010 by Rosalind English

W(Algeria) and 7 Others v Secretary of State for the Home Department [2010] EWCA Civ 898 (Jacob LJ, Sullivan LJ and Sir David Keene) 29 July 2010 – read judgment

Article 6 of the Convention did not require an “irreducible minimum of information” that had to be provided to appellants in proceedings before the Special Immigration Appeals Commission about the risk they posed to national security.

In their appeal against decisions of the respondent secretary of state to deport them on grounds of national security (upheld by the Special Immigration Appeals Commission (SIAC)) the appellants all claimed that they would be at risk of ill-treatment if they were deported. They had obtained relevant information which had been provided on the understanding that it could only be made available if there were clear guarantees that it would not become known to their national government.

They had sought an order before the SIAC that the secretary of state should not disclose the material to any other person without the permission of the SIAC and also requested the opportunity to withdraw the material if SIAC were minded to allow its disclosure to the secretary of state. The SIAC refused the application. In this appeal the appellants argued that they should have been entitled in the proceedings before the SIAC to some procedural protection akin to the “closed evidence” procedure available to the secretary of state’s witnesses, as well as an irreducible minimum of information about the risk they presented to national security.

Held:

Appeals dismissed.

There were two main issues before the Court, “The Reverse Closed Information Issue” and the “Irreducible Information” issue.

“The Reverse Closed Information Issue”

On the first, the Court of Appeal accepted the Secretary of State’s submission that the appellant’s arguments amounted to seeking to injunct the government from discussing potentially important information with the government of a state with which the United Kingdom enjoyed friendly diplomatic relations. It was submitted that the proposed procedure was unworkable. SIAC was not empowered to enjoin the Secretary of State from undertaking proper diplomatic activity.

In other words what was being sought was some form of guarantee, before the Secretary of State came into possession of the material, that it would in no circumstances be disclosed to the Algerian authorities. Sir David Keene, giving judgment for the Court, concluded that it was not open to the SIAC to make an order giving an absolute and irrevocable guarantee that the material would not be disclosed to the authorities of a foreign state, without knowing whether the secretary of state might subsequently provide a fresh slant on the material. The material might, for example, become of vital diplomatic importance when combined with material in the possession of the secretary of state and might reveal a potential terrorist risk within a foreign state.The proposal was unworkable and fell outside the scope of the SIAC’s powers to give directions.

The “Irreducible Minimum of Information” Issue

The question of the HRA’s future and the possibility of a domestic Bill of Rights and related topics may have been kicked into the long grass, for the moment at least (although a number of posts on this blog and elsewhere are keeping close watch on any movements in this area). In any event, this judgment is extremely interesting on the question of the position of rights in the constitutional hierarchy. It provides a welcome reminder that the principle of parliamentary sovereignty, which has survived our accession to the European Convention of Human Rights and Freedoms as well as the incorporation of that Convention via the Human Rights Act, still prevails in the interpretation of clear and unambiguous legislation. Ultimately, as Lord Hoffmann states in R-v-Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131, Parliament can, if it chooses, legislate contrary to fundamental principles of human rights (provided it squarely confronts what it is doing).

That is the bottom line.

Sir David Steele’s analysis of this point is linked to his discussion of the “Irreducible Minimum of Information Issue”. This formula refers to an “irreducible minimum” of information to be given to an appellant in a series of control orders made under the Prevention of Terrorism Act 2005 (“the 2005 Act”), most recently Secretary of State for the Home Department –v- MB [2007] UKHL 46; , and Secretary of State for the Home Department –v- AF (No. 3) [2009] UKHL 28; [2009] 3 WLR 74.

As Sir David Keene puts it,

in control order cases where article 6 applies, the controlee must be provided with the essence of the allegations against him. But that is because those proceedings involve a determination of his civil rights. That is not the situation where the Secretary of State has made a decision to deport a person on grounds of national security…. the processes involved in cases concerning the expulsion of undesirable aliens are beyond the reach of article 6… That is because the alien’s civil rights are not engaged where deportation proceedings are concerned

This principle was established in the Strasbourg case of Maaouia-v-France [2000] 33 EHRR 1037 (see paragraph 35). The instant appeals therefore fell to be determined on the basis of English domestic law as it applies to a case where article 6 is not engaged.

So, does the Convention and Strasbourg jurisprudence, together with the Human Rights Act, dictate an “irreducible minimum of information” which has to be provided to an appellant before SIAC in a deportation case? RB (Algeria)-v-Secretary of State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512 says not. The appellants contended that neither the decision nor the reasoning in RB decided this case when the issue is whether an appellant is a threat to national security. They argued that what is required by fairness in such a case is different from what is needed where the issue is safety on return, because in the former case, unlike the latter, the appellant has to meet a case which is being made against him by the Secretary of State, and he therefore needs sufficient information to enable him to mount an effective challenge to the allegation that he is a threat to national security. On the other hand, where the issue is that of safety on return, it is the appellant who is producing evidence that he would be at risk on return and so he is not having to meet a case made against him. The Court of Appeal did not accept this argument. There could be no doubt that the Special Immigration Appeals Commission (Procedure) Rules 2003 r.4(1) and r.38 provided for an outcome where an appellant was not to be told the essence of the closed material if that would be contrary to the interests of national security. Those Rules were clear and unambiguous and it was not open to the court to interpret them otherwise. Both in passing the Special Immigration Appeals Commission Act 1997 and in approving the Rules, Parliament had clearly confronted the fact that the right to a fair trial was being curtailed by the powers and procedures being approved.

The appellants accepted that Parliament is entitled to interfere with such fundamental rights. This in itself is a concession worth noting. But what follows in the judgement is an interesting analysis of the interface between the “principle of legality” and the “reading down” obligation under the Human Rights Act. The former requires that legislation which overrides “fundamental” rights must do so clearly and unambiguously: ex parte Simms [2000] 2 AC 115, 131 and R-v-Lord Chancellor, ex parte Witham [1998] 2 WLR 849

The power to “read down” legislation under section 3 of the HRA comes into play when a rule interferes with fundamental rights, irrespective of the clarity and unambiguity of the legislative language. Courts are enjoined to exercise this power to avoid incompatibility with Convention rights in an ECHR case, and it is more far-reaching than is implicit in the principle of legality, which only operates in the interpretation of general or ambiguous words in legislation in the absence of express language or necessary implication to the contrary.

However – and this is an important but often-overlooked proviso – courts may not read down rules which are mandated by the statute in question, in the sense that the rule-maker was obliged to make such a rule.

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