On fairness, elephants and principle – Michael Rhimes

2 April 2015 by Guest Contributor

Procedural fairness is a bit like an elephant. It is difficult to define in abstract, but you know a fair procedure when you see one. So Lawton LJ put it in Maxwell v Department of Trade [1974] QB 523, 539

 The trouble is it seems that different courts have different ideas of “elephantness”. Since we know that fairness is a necessarily context-sensitive notion, this, in itself, does not seem to give rise to too much difficulty. But practical problems start to arise when, for example, the Court of Justice of the European Union (CJEU) starts to endorse a view of fairness that is binding on the UK courts, but at odds with the approach taken by the UK Supreme Court. Add the facts that a) the UK is required to take into account the case-law of the European Court of Human Rights (ECtHR), which seems to have a different conception of fairness to that of the CJEU and b) the UK courts themselves do not necessarily speak with one voice, there’s a heady mix.

This brief post attempts to survey the area, and to discern the bumps in the road. Smoothing them out is another challenge in itself, and will probably require more than filling in the odd pot-hole.

There are four parts. The first focuses on two judgments of the Supreme Court to sketch out two provisional views of fairness. The second analyses  Tariq [2012] 1 A.C. 452. The third examines the seeming difference of opinion in the CJEU and ECtHR, and the final part comments on how the UK courts have grappled with this divergence.

The UK

One of the UK’s responses to terrorism was the creation of control orders. These were restrictive orders imposed by the courts that did not require the Secretary of State (SSHD) to prove very much. All that was required was that the SSHD could point to a reasonable ground for suspecting that the individual was involved in terrorist-related activity. A difficult question was how much the SSHD had to disclose to the subject of the control order, known as the controlee. Given that much of the underlying evidence was extremely sensitive, it could not be disclosed to the controlee himself. Special Advocates, security cleared lawyers who had access to all the evidence, would therefore both a) put the controlee’s case to the court and b) argue that, in fact, more information could be disclosed to the controlee. But once they saw the evidence, they could not, for all intents and purposes, communicate with the controlee. If the controlee were kept in the dark, the Special Advocate would be left firing blind shots.

In MB(FC) [2007] UKHL 46, the House of Lords was not clear on what was required to be disclosed. Lord Hoffmann, dissenting, thought that the presence of Special Advocates in itself was enough to guarantee fairness in every case. The majority was divided. Lord Bingham seemed to contemplate a “core minimum” of disclosure without which the imposition of a control order would be unfair. Lady Hale, seemed to accept this but, confusingly, was also seemingly prepared to find there could be fair cases where none of the underlying evidence was provided.

The Supreme Court had another go at the issue in AF [2009] UKHL 28. Here the ratio was unanimous and clear. In the context of control orders, the controlee had to be given enough information, and in sufficient detail, to effectively instruct his special advocate. This has been referred to as A-type disclosure. The crucial point for our purposes is that some comments in this case suggest that it took a very different approach to MB. Lord Carswell, for example said that while there was a “degree of flexibility” in MB, this had been replaced with an “absolute rule” in AF [108]. Lord Brown made similar references to there now being a “rigid principle” [119]

We can thus discern two approaches to fairness. On one view of MB, fairness is more of a contextual assessment of whether the controlee has been given a fair crack of the whip. Let us call this the “contextual approach”. On one view of AF, fairness is a more rigid conception of whether an individual has been provided with a core minimum of disclosure. Let us call this the “core minimum” approach. I emphasise these are only two possible views of these complex cases.

Tariq

Tariq [2012] 1 A.C. 452 provides an important development. It concerned a Pakistani Muslim who failed security vetting and was dismissed from his job. The reasons given were that his might be prone to influence by his cousin, currently in prison for participating in a failed terrorist plot to bomb a number of transatlantic flights, and brother, arrested but not charged for the same. The Home Office refused to disclose more, for fear of jeopardising the integrity of the vetting procedure. It is of utmost importance that, for example, those who give character references do so honestly without being constrained by the possibility that the subject might find out its contents.

The court accepted that A type disclosure had not been met. But the procedure was still fair, according to the 8-strong majority. The court stressed that AF was a context-sensitive judgment. It was confined to control orders, as they have extreme consequences on personal autonomy. Liberty was at stake. Here, however, the claim was a monetary claim for wrongful dismissal. Liberty was not at stake. Further, he had been provided with other safeguards along the way, like a specialist tribunal dealing with appeals from failed vetting procedures.

Lord Kerr dissented. He held that a fair hearing is rendered meaningless if the person does not know enough about the opposing case so he can instruct his lawyers. A-type disclosure applied across the board, to all hearings. A core minimum, was, literally, a core minimum.

How does the core minimum approach fare after this? Mr Tariq was provided with the general nature of the case against him. This, perhaps, could be seen as a core minimum. The problem would be that the core minimum would vary according to the facts of a case. Because of this you could say that it does make that much sense to speak of a core minimum. Does it really make sense to take of a core minimum, then? Yet, on the other hand, as Lord Kerr’s dissent reminds us, a fair hearing must be given practical meaning. A palm-tree, case-by-case, approach could risk watering down procedural fairness to will-o-the-wisp rhetoric.

CJEU and ECtHR

In Tariq, Lord Mance considered that the standards of fairness would be identical in EU law as they would be under the ECHR. Recent cases would call this into question. Two may be contrasted. ZZ [2013] QB 1136, an EU law decision by the CJEU. IR and GT v United Kingdom (2014) EHRR 14 a decision by the ECtHR.

In ZZ the SSHD refused entry to the claimant on the basis that he was suspected to be involved in terrorism. Like the controlees, ZZ wanted to know why; but, like the controlees, national security prevented him being given chapter and verse of the basis of those allegations. The CJEU accepted that national security reasonably deny a claimant full disclosure of the underlying evidence of the SSHD’s case. However, it also stated that:

[65] the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under article 27 of Directive 2004/38 is based, as the necessary protection of state security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in article 31 of that Directive ineffective[…]

[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” (Emphases added)

The conclusion seems clear. The claimant must be given the essence of the grounds. When the case was reconsidered by the Court of Appeal in the UK in ZZ [2014] QB 820, a similar conclusion was reached.

In IR, the claimant’s leave to remain in the UK was cancelled by the SSHD. He argued that he could not properly challenge the decision because he did not know enough about the SSHD’s case. Although not identical to ZZ, it concerns clearly a very similar factual scenario.

It, like ZZ, recognises there are permissible limitations on full disclosure, but its comments on how to preserve overall fairness are clearly more permissive:

[60] While it is incumbent on States under Article 8 of the Convention to put in place a procedure in cases giving rise to national security concerns which strikes a balance between the need to restrict access to confidential material and the need to ensure some form of adversarial proceedings, there may be more than one way of achieving this goal. This Court must therefore examine the entirety of the system put in place in the Contracting Party in question in order to assess whether the procedural guarantees required by Article 8 have been respected in the particular circumstances of the case. A procedural defect present in one respect might well be offset by a procedural safeguard present in another.” (Emphases added)

To this we add that in paragraph 63, when it considered the procedural safeguards, no mention was made of the disclosure of the essence of the case against him. On the contrary, rather like Lord Hoffmann in MB, they took a sanguine view of the ability of Special Advocates to rectify the unfairness of less than full disclosure.

The UK

How has the UK responded to this apparent rift? It is not entirely clear.

As to the EU law point, some judgments indicate that ZZ was confined to its facts. In other words, the fact that freedom of movement was at stake, one of the jealously guarded principles of EU law, meant that the courts required a high standard of fairness. This would seem to be the understanding of ZZ on its return to the UK in the Court of Appeal:

[18] In my view that judgment lays down with reasonable clarity that the essence of the grounds on which the decision was based must always be disclosed to the person concerned. That is a minimum requirement which cannot yield to the demands of national security. Nor is there anything particularly surprising about such a result in the context of restrictions on the fundamental rights of free movement and residence of Union citizens under European Union law (Emphases added)

Others are not so convinced. In the latest instalment of Bank Mellat [2014] EWHC 3631, Collins J saw ZZ as applying across the board throughout all EU law regardless of context, or, in his words “of general application when EU law is concerned”.

As to the ECtHR approach, IR suggests that Art 6 does not import an unvarying and fixed standard. This accords with the view of Tariq, as recently expressed by Phillips J in R(X) v Y [2015] EWHC 484:

[32] the Supreme Court [in Tariq] rejected the contention that Article 6(1) gives rise to any absolute requirements. The exercise is always one of balancing competing factors, the nature of the litigation and the interests involved being the crucial context in which that balance is to be struck.

Others were not so convinced. In a previous instalment of Bank Mellat [2012] QB 91, decided before any of the three judgments referred to above, Lord Neuberger MR seemed prepared to accept that the mere fact Art 6 was engaged meant that the Bank was entitled to A-type disclosure:

18 …There are irreducible minimum rights which article 6.1 […] requires to be accorded to any party involved in litigation to which the article applies. For the reasons given by Maurice Kay LJ in Tariq v Home Office [2010] ICR 1034, I consider that every party to litigation has the right to be given sufficient information about the evidential case against him, so as to enable him to give effective instructions in relation to that case… (Emphases added)

This statement does not leave much room for the argument that it is confined to the context of asset freezing orders. It seems to apply more generally. Granted, the Court of Appeal in Tariq was overruled. So was the Kadi case to which he also refers to later in the same paragraph. But, he also relies on paragraphs [83] and [84] of AF. For brevity, the reader is left to peruse them him or herself. But they cast doubt on the contextual approach of MB in forceful terms. Overall, the impression left by the Court of Appeal in Bank Mellat is more of an endorsement than a rejection of a core minimum approach.

The Way Forward

All of the above has turned on a distinction between contextual and core minimum approaches. The claim is not that they approaches are oil and water. Many judgments toy with both. The separation rather serves as a useful point of reference for how a seemingly simple notion of fairness can be approached in different ways.

But even this cannot hide the cloudy grey that pervades this area. Sooner or later the Supreme Court is going to have to consider, and consider seriously, how the courts in this jurisdiction are to afford meaningful guarantees of fairness.

After all, more is at stake than mere elephant-spotting.

Michael Rhimes is studying for a BCL at St Peter’s College Oxford.

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