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

6 August 2015 by

PAjusticeKiani 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

4 comments


  1. […] For a good write up of the legal issues in this case (Kiani v The Secretary of State for the Home Department [2015] EWCA Civ 776) and how it develops previous caselaw see the post over on the UK Human Rights Blog. […]

  2. daveyone1 says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

  3. Daniel Smith says:

    This sounds a bit like “the spirit of the law” that we are all fighting the good fight…infact there is no ‘spirit on the law’ it is either legal or illegal the rest are breaches.

  4. Justine S says:

    Thanks for this very interesting post. I have been looking at due process in relation to immigration detention under the Return Directive and case law before the CJEU and I would just like to note that, in that context, it would seem that some defence rights should be considered as universally applicable. In Case Case C-383/13 MG, NR v Staatssecretaris van Veiligheid en Justitie, AG Wathelet referred to the right to be heard in this manner: “Respect for the rights of the defence constitutes a fundamental principle of EU law, and the right to be heard in any proceedings forms an integral part of it.” (para 44). The CJEU confirmed this view by stating that defence rights are fundamental EU rights that must be respected even where not expressly provided for in the applicable procedures (para 101-02). Interesting to think why some more than others should be viewed as absolutely required. Perhaps it is a matter of degree.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: