On fairness and principle: the legacy of ZZ re-examined – Michael Rhimes

6 August 2015 by Guest Contributor

Kiani v Secretary of State for the Home Department [2015] EWCA Civ 776 (21 July 2015) – read judgment

In my last post on UKHRB I commented on developments in UK, ECHR and EU jurisprudence relating to procedural fairness in the context of national security.

The developments in this recent case offer some further interesting thoughts on the topic. To explain the case, and put its ramifications in a broader context, this post will be divided into three parts.  In the first I outline my original argument as set out in the earlier post. The second will explain the case itself. The third will offer five brief comments on the broader issues the cases touches upon.

In brief, the court in Kiani followed Tariq and held that AF-type disclosure (see below) was not a universal requirement of fairness; the interests of justice could require a lower standard of disclosure without violating the absolute right to a fair hearing.

Summary of Previous Post

It was noted that there could be two conceptions of due process.

On the one hand, there is a concrete understanding of procedural fairness, whose content can be determined only on the facts of a given concrete case. A possible example was examined: IR and GT v UK (ECHR, Applications nos. 14876/12 and 63339/12, 28 January 2014), especially at [60]. 

On the other, there is an abstract understanding whereby procedural fairness is seen as an amalgam of various abstract rights that are applied by rote to each situation in which fairness is engaged. Indicative of this understanding is the notion of a core minimum of procedural rights which apply in abstract to all cases

It was suggested that the approach of the EU aligns more closely with this understanding.

First, we note that the Charter of Fundamental Rights gives, in addition to a general guarantee of good administration in Art 41(1), a list of specific abstract rights. These include

• The right of every person to be heard, Art 41(2)(a) (See also Art 47 and 48)
• The right of every person to have access to his or her file, Art 41(2)(b)
• The right to reasons, Art 41(2)(c)

Second, in a situation broadly analogous to that of IR, the CJEU in   ZZ [2013] QB 1136 (Case C‑300/11) appeared to insist on a more rigid core minimum. Both dealt with the Home Secretary’s refusal to give detailed descriptions of why a given individual was not allowed to return, or enter, the United Kingdom for national security grounds as permitted in limited circumstances by Directive 2004/38 (‘The Directive’) .

Kiani [2011] UKSC 35

Mr Kiani was in a very similar position to Mr Tariq, whose case in the Supreme Court has received a considerable amount of attention. Both are Pakistani Muslims, and both brought unlawful dismissal claims against the Home Office for dismissing them on racial and/or religious grounds when their security vetting was not renewed. No specific allegations were put against either of them; the Home Office’s concern was with the potential for abuse of position or blackmail. Whilst the concern in Mr Tariq’s case came from his ties with his cousin who was convicted of attempted murder in a failed terrorist bomb plot, in Kiani’s case the concern was related to his wife’s direction of a company that provides immigration advice.

The key question was whether, following  AF [2009] UKHL 28, Mr Kiani was entitled to the disclosure of a gist of the case against him. This is often referred to as AF-type disclosure, after the case of AF which defined the disclosure required to comply with Article 6 of the ECHR in the context of Control Orders under the Prevention of Terrorism Act 2005 as follows: 

An excluded party must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. (Lord Phillips [59]).

The Supreme Court in Tariq held that this was not an absolute requirement, and highlighted the fact that the case was essentially that of a monetary claim for discrimination as basis for not requiring AF type disclosure in order to ensure fairness. Overall, this might suggest a concretist understanding of procedural fairness. Like an elephant we cannot describe it in abstract, but we know fairness when we see it.

On this analysis, Kiani poses no question of principle. It is up to the judge to determine whether, on the facts of the case, the interests of justice are such that fairness could only be satisfied through the provision of AF-type disclosure.

However, Mr Kiani had another string to his bow. He relied on the EU law case of ZZ, arguing that under EU law, and therefore contrary to Tariq, there was a universal obligation to provide AF-type disclosure. The argument was rejected in the following terms:

• (…)The court [in ZZ] was not purporting to enunciate a universal principle of EU law which applied in the same way regardless of the context. On the contrary, it made it clear in this paragraph (and other paragraphs) that it was interpreting articles 30(2) and 31 of the Directive. (…). If it had intended to say that the ECtHR context-dependent approach to article 6 of the Convention did not apply in EU law, it would surely have said so.

• (…) there is nothing to suggest that the court was of the view that its conclusion as to the extent of the disclosure obligation in that case applied to all cases within the scope of EU law. Nor is there anything in the judgment to suggest that the court was purporting to lay down some new general principle of law.

• In my view, this passage (At [102] of ZZ) is entirely consistent with the context-specific approach adopted by the ECtHR in relation to the Convention and inconsistent with the absolutist approach advocated by Mr Southey (Counsel for the appellant).

• I can see no inconsistency between this approach and that adopted in the Convention jurisprudence in relation to article 6 of the Convention. Kadi (No 2) provides no support for the idea that article 47 of the Charter requires the essence of the factual basis of a decision to be supplied to the person concerned in all cases, regardless of the context and the particular circumstances.

Accordingly, there was no requirement for AF-type disclosure. Overall, therefore, the approach of Tariq not only still stands, but is reconciled with the approach of the CJEU to procedural fairness in the context of national security. There are clear abstract rights that are constitutive of fairness, but exactly how they are to be given effect – i.e. through AF disclosure or not – depends on the exigencies of a given case and not on an absolute application by rote.

Broader Comments

It is worth making a few observations at this point.

First, there is the question of whether the court’s interpretation of ZZ is valid. Certainly one can say that it is not universally accepted. In this regard, one might turn to Collins J in a recent instalment of Bank Mellat [2014] EWHC 3631 who stated that:

There is thus a conflict between what the ECJ said was required in ZZ and the decision of the ECHR in IR. I have no doubt that ZZ is a bad decision but, unlike decisions of the ECtHR, it is binding in our courts. [19]

Moreover, we note that in the ECHR case of IR, the court expressly contemplated the possibility of the ECHR and the EUCFR providing for different standards of procedural protection. (at [66])

Accordingly, we have clear doubt casted on the interpretation of the court in Kiani which was more ready to accept that there was no difference between the two jurisprudential voices of the CJEU and the ECHR.

Second, there is the question as to the dialogue between the ECtHR and the CJEU. It is remarkable that the CJEU in ZZ , unlike in Kadi II (C-584/10), did not cite the seminal ECHR case of A and others v United Kingdom [2009] ECHR 301, whence the UK House of Lords in AF sourced the obligation of ‘gisting’ in the form we know it today. If the courts are engaging in similarly related cases of national security, it is worrying if they do not at least acknowledge each other’s jurisprudence. This, again, contributes to the complex confluence of the legal streams of these two bodies.

Third, there is a question as to how far the AF-disclosure obligation spreads. ZZ of the CJEU suggests that it is a core minimum whenever EU law applies. However, that does not seem how it was interpreted upon its return to the court of appeal in ZZ (No 2) [2014] EWCA Civ 7. Richards LJ stated that the ratio was valid inasmuch as it applied to the fundamental freedoms in the EU order – most importantly, that of freedom of movement which was in issue in the very case itself (at [18]). However, to what extent does it extend to EU more generally, in cases where fundamental freedoms are not in issue?

Fourth, there is the final question as to whether more broadly the CJEU is prepared to reject an absolutist stance and embrace a more context-sensitive approach. The case of ZZ suggests that it does not. However, other cases exhibit a more concretist understanding. In particular, one might have a look at the more recent case of Mukarubega (CJEU Case C‑166/13) . This dealt with the removal of an ‘illegally staying third country national’ under Directive 2008/115. The French government argued that because the applicant had already been heard in respect of an application for a residence permit, it was not necessary to re-hear the applicant in respect of the determination that her stay was illegal, and thus requiring her deportation. The court accepted this argument, noting that during the procedure for a resident permit, she had been permitted to effectively put her case on the legality of her stay ([70]). The substance of the decision has been examined elsewhere. The crucial passage is as follows:

The question whether there is an infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question [54]

The emphasis on specific circumstances leaves us in a position closer to that contemplated by the UK Court in Kiani rather than the more rigid approach of ZZ.

As a last observation, there is the question as to where this leaves us in terms of procedural fairness. The most honest answer is that we cannot be certain. On the one hand we have judicial posturing that asserts the centrality of rigid due process guarantees as fundamental to the rule of law. (See the discussion in Al-Rawi [2011] UKSC 34 where the right to know the case emerged as a ‘fundamental common law principle’ [11] or even an ‘entrenched’ [39] right of our justice system). Yet on the other, we see a judicial understanding that the same guarantees cannot be applied by rote in every circumstance – least of all in that nebulous category of national security. Whilst this position may be more realistic in the sense that it takes account of the need to preserve other weighty interests, we must remind ourselves of the wisdom of Lord Shaw more than 100 years ago:

there is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. (Scott v Scott [1913] 1 AC 417, 477-8)

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

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