W (Algeria) & Ors v Secretary of State for the Home Department

These are eight appeals from decisions of the Special Immigration Appeals Commission (“SIAC”) which in each case upheld a decision by the Secretary of State for the Home Department to deport the appellant on grounds of national security. Seven of the appellants are Algerian nationals, the eighth, VV, being Jordanian. Each claimed that he would be at risk of treatment contrary to Article 3 of the European Convention on Human rights (“ECHR”), were he to be deported. Many of the cases have a considerable procedural history before SIAC and the courts, but the issues now before this court are limited by the terms of the permission to appeal granted by Maurice Kay L.J. He granted permission in respect of two issues: first, in proceedings before SIAC, is an appellant and his prospective witness or witnesses entitled to any procedural protection akin to the “closed evidence” procedure available to the Secretary of State’s witnesses? This was described as the “reverse closed evidence” issue, and permission to pursue it has been granted to all the appellants except VV.

Secondly, in appeals before SIAC in cases of deportation decisions on grounds of national security, is there an irreducible minimum of information about the risk presented by the appellant to national security which the Secretary of State is bound to provide to the appellant in the interests of procedural fairness? Permission on this ground has been granted to six of the appellants, namely all except PP and W, though it should be noted that three of them, Z, G and U, formally waived their right before SIAC to contest the Secretary of State’s evidence as to the risk they presented to national security. This was done on the express basis that they did not believe that they could obtain a fair hearing on the national security issue and because they wished to have the issue of their safety on return to their originating country determined as soon as possible.

The two issues raised are essentially matters of principle, which do not require an extensive description of the facts of each case, though it will be helpful to illustrate the issues from time to time with some factual material. In particular, the lead appellant on the first issue is Z and it will be necessary to summarise what happened at the relevant SIAC hearing when this issue was dealt with. Similarly, on the second issue VV is the lead appellant and the SIAC decision in his case helps to illuminate the arguments on that issue.

SIAC was established by and derived its jurisdiction from the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”). Before the passage of that statute, deportation decisions made on the basis that deportation would be conducive to the public good as being in the interests of national security were excluded from the system of appeals to an adjudicator and beyond. Instead of a right of appeal, there was a non-statutory procedure in existence, under which a prospective deportee in such cases could have his case considered by an advisory panel, before which he could not be legally represented. The panel’s advice to the Secretary of State was not disclosed and the Secretary of State was not obliged to follow it.

As is well-known, this system was found by the European Court of Human Rights in Chahal v United Kingdom [1996] 23 EHRR 413 not to meet the requirements of Article 5 (4) of the ECHR in a case where the complainant was held in detention pending deportation. The advisory panel was not a “court” within the meaning of Article 5 (4). The Strasbourg Court acknowledged that the use of confidential material might be unavoidable where national security was at stake, but it pointed to the form of judicial control developed in Canada, which showed that there could be techniques which

“both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.” (paragraph 131)

One of the features of the Canadian system referred to by the Court was that of a security-cleared counsel to test the strength of the State’s case in respect of material which could not be disclosed to the applicant or his representative for security reasons. The court also made the point that, where Article 3 issues arose in expulsion cases, the notion of an effective remedy under Article 13 required independent scrutiny of the claim that there were substantial grounds for fearing a breach of Article 3, but it added (at paragraph 152) that such scrutiny need not be provided by a judicial authority.

The 1997 Act was then passed to remedy the deficiencies in the advisory panel system and to produce a system which reconciled, so far as possible, the interests of national security in such cases and the interests of the individual. SIAC is thus a creature of statute. Appeals which would otherwise be brought under section 82 (1) or 83 (2) of the Nationality, Immigration and Asylum Act 2002 to an immigration judge are precluded by section 97 of that Act where the Secretary of State’s decision was made wholly or partly on grounds of national security. Instead an appeal lies under section 2 (1) of the 1997 Act to SIAC.

Section 5 of the 1997 Act gives the Lord Chancellor the power to make rules prescribing the practice and procedure in SIAC. That power is exercisable by statutory instrument and the rules have to be approved by an affirmative resolution of both Houses of Parliament: section 5 (8) and (9). Section 5 (3) of the 1997 Act is of importance. It provides:

“(3)

Rules under this section may, in particular—

a)

make provision enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal,

b)

make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him,

c)

make provision about the functions in proceedings before the Commission of persons appointed under section 6 below, and

d)

make provision enabling the Commission to give the appellant a summary of any evidence taken in his absence.”

Section 5 (6) states as follows:

“(6)

In making rules under this section, the Lord Chancellor shall have regard, in particular, to –

(a)

the need to secure that decisions which are the subject of appeals are properly reviewed, and

(b)

the need to secure that information is not disclosed contrary to the public interest.”

Section 6 gave a power to the relevant law officer, in England and Wales the Attorney General, to appoint a person to represent the interests of an appellant in any proceedings before SIAC from which he and any legal representative of his were excluded. Subsection (4) of that section provided that such a person was not responsible to the appellant. This section thus gave rise to the institution of the special advocate, intended to replicate the security-cleared counsel to be found in the Canadian system.

The Lord Chancellor has made the Special Immigration Appeals Commission (Procedure) Rules 2003 pursuant to section 5. These rules (“the SIAC Procedure Rules”) have been amended as from dates in 2007, in particular so as to provide by Rule 10A for the Secretary of State to disclose material which adversely affects her case or supports the appellant’s case (“exculpatory material”), following a reasonable search for such material, save where disclosure would harm the public interest. That amendment was not in force at the time of some of the SIAC decisions now under appeal, but the Secretary of State’s practice under the SIAC Procedure Rules as they originally stood was, we have been told, identical to that now provided for.

Rule 4 deals with the general duty of the Commission. It states:

“(1)

When exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.

(2)

Where these Rules require information not to be disclosed contrary to the public interest, that requirement is to be interpreted in accordance with paragraph (1).

(3)

Subject to paragraphs (1) and (2), the Commission must satisfy itself that the material available to it enables it properly to determine proceedings.”

It is to be observed that SIAC’s duty to satisfy itself that it has material to enable it properly to determine proceedings is expressly made subject to its Rule 4 (1) duty to secure that information is not disclosed contrary to the interests of national security or the other interests mentioned in Rule 4 (1).

Rule 34 provides for the appointment of special advocates, with their function of representing the interests of an appellant dealt with in rule 35. The special advocate may, by virtue of rule 36 (1), communicate with the appellant or his representative but only up until the time when he is served with “closed material”, unless he is authorised by SIAC so to do thereafter. “Closed material” is defined by rule 37. It is principally material upon which the Secretary of State wishes to rely in any proceedings before SIAC but which the Secretary of State objects to disclosing to the appellant or his representative. The Secretary of State may only rely on such material if a special advocate has been appointed to represent the interests of the appellant: see rule 37 (2).

The Secretary of State’s objection to disclosure is not, however, final. Under rule 38 the special advocate may challenge the objection and SIAC is empowered to uphold or overrule the Secretary of State’s objection: rule 38 (6). Any hearing into the challenge to the objection must take place in the absence of the appellant and his representative. Rule 38 (7) states that:

“The Commission must uphold the Secretary of State’s objection under rule 37 where it considers that the disclosure of the material would be contrary to the public interest.”

If SIAC does uphold the Secretary of State’s objection, then it must consider whether to direct the Secretary of State to serve a summary of the closed material on the appellant. However, it must approve any such summary,

“to secure that it does not contain any information or other material the disclosure of which would be contrary to the public interest in rule 38 (8).”

If SIAC overrules the Secretary of State’s objection to disclosure or directs him to serve a summary of the closed material, the Secretary of State is not required to serve the material in question or a summary, but in such a situation the Secretary of State cannot rely on the material in the proceedings: rule 38 (9). The Secretary of State thus has the opportunity to refrain from disclosing material if she remains of the view that such disclosure would be harmful to the public interest, but she cannot then rely on it to resist the appeal.

Rule 39 confers on SIAC the power to give directions “relating to the conduct of the proceedings”, a power to be exercised subject to the Rules and in particular to the obligation in rule 4 (1) to ensure that information is not disclosed contrary to the public interest. SIAC has the power and the duty to exclude the appellant and his representative from a hearing or part of a hearing if it considers that necessary in order to secure that information is not disclosed contrary to the public interest. The hearing or relevant part of it must then be conducted in private: rule 43 (1). SIAC also has the power to conduct a hearing in private “for any other good reason”: rule 43 (2).

It can be seen from this brief summary that the 1997 Act and the SIAC Procedure Rules create an elaborate and unusual procedural structure in an endeavour to reconcile the interests of an appellant in such proceedings with the public interest where the latter could or might be damaged by disclosure of material upon which the Secretary of State wishes to rely. The normal principles which have to be observed in the interests of a fair trial will patently not always be capable of being applied in such cases.

The factual background to this issue can be illustrated by what happened in the proceedings before SIAC in the case of the appellant Z. In advance of the hearing of his appeal, his solicitors wrote to the President of SIAC a letter dated 13 April 2007 in which they referred to “relevant information” which they had recently obtained. The letter went on to say:

“Those who provided this information have made it clear that it could be made available only if there were clear guarantees that the information did not become known to the Algerian government or its representatives.”

Otherwise, it was said, the sources of the information in Algeria would feel themselves vulnerable to reprisals there and would not make the information available. Consequently the solicitors sought directions for an ex parte hearing in the first place, excluding the Secretary of State, and for an order that the Secretary of State should not, once in possession of the material, disclose it to any other person without the permission of SIAC. Fundamentally, the letter also asked that the appellant be given the opportunity to withdraw the material, were SIAC minded to allow such disclosure. An analogy was drawn with the procedure available under the Procedure Rules to the Secretary of State in respect of closed material.

An application to this broad effect was made on behalf of Z at a hearing before SIAC on 18 April 2007. Counsel for Z made it clear that what was sought was a ruling on procedure that enabled his solicitors to explain to the sources of the material:

“that there is essentially an absolute guarantee that their material will not be put before the Commission in circumstances where it might get back to Algeria.” (transcript, page 5)

Counsel for the Secretary of State referred to the difficulty which would arise if SIAC were initially in favour of the appellant at an ex parte hearing, directed disclosure to the Secretary of State on condition that the material was not to be disclosed to any third party, but was then, on hearing submissions on behalf of the Secretary of State, persuaded to change its mind. By then the Secretary of State would be in possession of the material, and it was contended 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 agreed with the Secretary of State. In giving its decision, the Chairman, Mitting J, acknowledged that there was a public interest in protecting the anonymity of those who make complaints about a foreign state and who would be at risk if their identity became known. But he referred to the fact that SIAC had seen certain material in closed session and that there was a high risk that, if it were to be put in closed session in the presence of the Secretary of State, the Secretary of State “could legitimately seek to take the matters up with the Algerian authorities”. Hence there was a “competing and necessarily irreconcilable public interest in cases of this kind in national security and in securing the international relations of the United Kingdom”. SIAC was not empowered to enjoin the Secretary of State from undertaking proper diplomatic activity.

It can be seen that SIAC’s decision was really based on two propositions. The first was that SIAC did not have the power to do what the appellant was seeking. The second, as can be seen from the use of the term “legitimately”, was that even if it had such a power, it might well take the view that the Secretary of State should nonetheless be permitted to disclose the material to the Algerian authorities. That latter point is to be noted, because the argument on this appeal has moved on somewhat from the situation as it existed before SIAC. The issue is now narrower. Mr Tam, Q.C., on behalf of the Secretary of State, accepts that SIAC could give directions under the Procedure Rules preventing the Secretary of State from disclosing such material to any other person, including the Algerian authorities. He acknowledges that SIAC’s power under rule 39 (1) to “give directions relating to the conduct of any proceedings” is expressed in wide and unlimited terms and could be used in conjunction with the rule 43 (2) power to conduct a hearing in private for any good reason so as to prevent disclosure to other persons, including the authorities of the appellant’s country of origin.

The Secretary of State’s position on this issue at this appeal is that, while SIAC could give a direction preventing disclosure to the Algerian authorities, it might well decide not to do so, once it had heard the Secretary of State’s submissions on the merits of disclosure. Mr Tam contends that what the appellant is truly seeking from SIAC is an absolute and irrevocable order for non-disclosure, in advance of the Secretary of State seeing and making representations about the material in question. Otherwise the appellant runs the risk of an eventual decision against him by SIAC on disclosure by the Secretary of State to others. But, it is argued on behalf of the Secretary of State, that is an impossible order for SIAC to be asked to make, since the Secretary of State, once she has seen this material, may be able to demonstrate with evidence of her own that disclosure to the foreign state should be allowed.

Mr Fordham Q.C. advanced the case for the appellants on this issue. He accepts that what is being sought is some form of guarantee, before the Secretary of State comes into possession of the material, that it will in no circumstances be disclosed to the Algerian authorities. This guarantee can be achieved either by an irrevocable direction by SIAC or by an undertaking to like effect by the Secretary of State. Otherwise, it is submitted, the evidence will not be produced and that would prejudice the appellants. Consequently such a guarantee is required for a fair hearing, and it follows that it is in the public interest that it be given, so that relevant information is put before SIAC. Reliance is placed on the fact that, under the Procedure Rules, the Secretary of State has the ability to withdraw material before an appellant sees it if SIAC’s decision is that it would have to be disclosed to the appellant. Equality of arms necessitates a procedure of the kind advocated. Mr Fordham argues that the effect on this country’s diplomatic relations would be no greater than in the situation where the appellant is unable to produce the evidence because of the absence of a cast-iron guarantee of non-disclosure.

For my part, I can readily appreciate the difficulty in which an appellant may be placed by the unwillingness of a potential witness or source of information to allow his material to be used if there is a risk of it implicating him with his home authorities. There is an undoubted problem. But I cannot see that the orders sought by the appellants provide a legally acceptable solution to the problem. As both sides recognise, what the appellants are seeking is an absolute guarantee of non-disclosure to the Algerian authorities, and moreover one which is to be provided irrevocably and before the Secretary of State has seen the material. That has to be the nature of the guarantee: there is no solution to be found merely in an ex parte hearing, excluding the Secretary of State at that stage. Whatever the result of such a hearing, the Secretary of State could not be prevented from applying to overturn the ex parte result if she so chose, once the material had been disclosed to her, albeit initially on terms. She has to have liberty to apply to vary or discharge an ex parte order.

The appellant’s difficulties do not arise if he fails before SIAC at an ex parte hearing to get an order for non-disclosure, because he can then decline to put the material before SIAC in evidence. But his difficulties are acute if he wins at the ex parte stage, and wants to use the material. The Secretary of State then comes into possession of it. She may legitimately seek a reversal of the non-disclosure order and may succeed. SIAC cannot, it seems to me, tie its hands in advance and say that, whatever the fresh slant on the material provided by the Secretary of State, it will in no circumstances allow disclosure to the authorities of a foreign state. How could it? It might be that the appellant’s material, innocuous when seen in isolation, becomes of vital diplomatic importance once combined with material in the possession of the Secretary of State. As was explored in argument, it might reveal a potential terrorist risk within the foreign state. It might indicate that, instead of the appellant having been the perpetrator of a terrorist outrage, as suspected hitherto, the true culprit remains at large in the foreign state and presents a real and imminent threat to that state.

It is no answer for Mr Fordham to argue that, without the cast-iron and irrevocable guarantee of non-disclosure, the British government would not even come into possession of the information. That is true, but the consequences for the United Kingdom’s diplomatic relations differ radically between the two scenarios. If this country’s government is in possession of information indicating the existence of a risk of a terrorist outrage in a foreign state with which we have friendly relations and it does not warn that state, the potential impact on the United Kingdom’s diplomatic relations with that state could be very serious indeed if it ever became known that our government knew of the risk. If, however, the government does not possess such information, then while the terrorist risk to the foreign state may remain the same, this country could not be accused of withholding vital information, and our diplomatic relations would not be affected.

The appellants do not argue that SIAC should see this material which they wish to rely on but that the Secretary of State should never see it. That is understandable. SIAC could not properly perform its task in evaluating the material without the assistance of the Secretary of State. She has to be allowed to investigate and to check the reliability of the material, so as to assist SIAC both in making its decision and in ensuring that nothing is disclosed by it contrary to national security or the public interest generally. In the apparently converse situation of reliance by the Secretary of State on closed material which the appellant does not see, there is at least the presence and activity of the special advocate to protect the appellant’s interests. No provision for a special advocate to act to protect the Secretary of State’s interests is made in the legislation or Procedure Rules. Nor could such an advocate sensibly protect the public interest, which is one of the Secretary of State’s functions. Such an advocate, to operate properly, would need access to the security services and other government departments, and would be of little value without such access. The reality is that the position of an appellant and the position of the Secretary of State are not comparable, because of the public responsibilities of the latter.

I conclude, therefore, on this first issue, that it is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIAC’s powers to give directions, broad though those powers are. I turn therefore to the second issue.

The reference in the formulation of this issue to an “irreducible minimum” of information to be given to an appellant derives from a series of cases about 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; [2008] AC 440, and Secretary of State for the Home Department –v- AF (No. 3) [2009] UKHL 28; [2009] 3 WLR 74. The 2005 Act makes provision by means of a Schedule for the making of rules of court applicable to control order proceedings and appeals. Under those rules such proceedings may take place without full particulars of the reasons for the Secretary of State’s decision having to be given to the controlee, and they may take place in his absence. Relevant material relied on by the Secretary of State must not be disclosed to the controlee where the court considers that disclosure would be contrary to the public interest. In effect, the court in such proceedings may consider and take account of closed material not seen by the controlee. Provision is, however, made for his interests to be protected, so far as that is possible, by a special advocate. The procedural regime thus bears some obvious similarities to that created by the 1997 Act, even though proceedings under the 2005 Act take place in the High Court rather than before SIAC. Each of the two statutory regimes represents an attempt to deal with the same difficult problems which exist in cases where national security is involved. As we will see, however, there are also some significant differences.

In the MB case, the members of the House of Lords took somewhat different views from one another on whether a controlee’s rights to a fair trial under article 6 of the European Convention on Human Rights (“the ECHR”) were adequately protected by the procedures in the 2005 Act where closed evidence was used against him. Lord Bingham of Cornhill’s opinion was that those rights would be breached if the controlee were not informed of the case against him, since the concept of fairness “imports a core, irreducible minimum of procedural protection” for a party: para 43. Lord Hoffmann took the view that in principle the statutory procedures, including the use of a special advocate, provided sufficient safeguards to satisfy article 6, and that the Strasbourg court had approved the use of closed material so long as such safeguards were in place. But the majority of the House reached conclusions which fell between these two positions. As Lord Phillips of Worth Matravers subsequently summarised the MB case in his speech in AF (No. 3), in a passage which I gratefully adopt:

“The conclusion of the majority of the House was that there would be cases, albeit rare ones, where the failure to disclose closed material to the controlee would be incompatible with the article 6 requirement of a fair trial”: para 20.

There was no dispute in MB that article 6 of the ECHR was applicable to control order proceedings and appeals, though there was an issue as to whether the criminal limb of article 6 (1) applied or only the civil limb thereof, as the Secretary of State contended. That issue was decided in favour of the Secretary of State. The importance of the fact that the proceedings involved a determination of the controlee’s civil rights, thus engaging article 6, emerged very clearly nearly two years later in AF (No. 3). The House of Lords in that case emphasised that the law now included, since the Human Rights Act 1998, the ECHR. Lord Phillips referred to the normal aims of producing a fair trial by ensuring that a party to it had the fullest information of the allegations against him and the evidence relied on in support of those allegations but he added this at paragraph 64:

“In some circumstances, however, they run into conflict with other aspects of the public interest, and that is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law includes the Convention, as applied by the HRA. That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A-v-United Kingdom resolve the issue raised in these appeals.”

That final sentence in the passage quoted leaves no doubt as to the significance of the Strasbourg jurisprudence in control order cases. Unless the party had knowledge of the essence of the case against him there would be a breach of article 6. As Lord Brown of Eaton-under-Heywood pointed out in his judgment at para 119 of AF (No.3), Strasbourg now required disclosure to a suspect of enough about the allegations against him to enable him to give effective instructions to the special advocate. The other members of the House likewise stressed the importance of the incorporation of article 6 into our domestic law by virtue of the Human Rights Act 1998: see Lord Hoffman, para 70; Lord Hope of Craighead, para 80; Lord Scott of Foscote, paras 92 and 96; and Lord Carswell, para 108. In consequence the House held that, where it was necessary to do so in order to meet the requirements of article 6, the provisions of the 2005 Act would have to be read in such a way as to be compatible with the controlee’s article 6 rights.

There is thus no doubt that, 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. As Lord Brown stated in AF (No. 3), the processes involved in cases concerning the expulsion of undesirable aliens are beyond the reach of article 6: para 113. That is because the alien’s civil rights are not engaged where deportation proceedings are concerned: see the Strasbourg court’s decision in Maaouia-v-France [2000] 33 EHRR 1037, paragraph 35. Article 6 is not engaged even where the order for deportation has an incidental effect on rights under other articles of the ECHR, such as article 3. The present appeals therefore fall to be determined on the basis of English domestic law as it applies to a case where article 6 is not engaged. There is no dispute about that: the appellants accept that that is the case.

Consequently this second issue involves asking whether English domestic law, with its long-standing recognition of the right to a fair trial, requires such a deportee to be provided with the essence of the case against him, even where that would damage national security. It might be thought by some that this question has already been answered by the House of Lords in its decision in RB (Algeria)-v-Secretary of State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512. Indeed, that is part of the Secretary of State’s case on these appeals. In RB (Algeria), the House of Lords was dealing with decisions to deport the appellants on grounds of national security, decisions which (as Lord Phillips noted at para 75) did not of themselves engage the ECHR. To that extent it was a case like the present appeals. It was different to the extent that the appellants there were challenging the deportation decisions on the ground that they would be at risk on return (to Algeria and Jordan respectively) of torture or other treatment which would breach article 3 of the ECHR. The Secretary of State relied before SIAC on closed material both on the issue of the threat which the appellants posed to national security and on the issue of their safety on return to their home country. The emphasis in their subsequent appeals appears to have been on the use of closed material in respect of the safety on return issue, though it will be necessary in due course to look more closely at how far the speeches in their Lordships’ House were confined to that issue. But it is accepted by the appellants in the present case that, certainly so far as the issue of safety on return is concerned, RB (Algeria) decides that there is no irreducible minimum of information which has to be provided to an appellant before SIAC in a deportation case. The procedures approved by Parliament in the 1997 Act and the SIAC Procedure Rules are themselves intended to strike a fair balance between the protection of the public interest and the need for a fair hearing.

It is, however, submitted on behalf of the appellants that neither the decision nor the reasoning in RB (Algeria) decides this case when the issue is whether an appellant is a threat to national security. Where that is the issue, the fundamental right to a fair hearing requires that the appellant is informed of the essence of the case against him. 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. Where the issue is that of safety on return, it is, argues Mr O’Connor Q.C., 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. Reliance is placed on passages in the speeches of Lord Phillips and Lord Brown in RB (Algeria) which refer to such a distinction: see paras 95 – 98 and 256.

The appellants submit that there is a fundamental right at common law to a fair trial, and that that right is not respected if a party does not know the substance of the case against him,

“for what he does not know, he cannot answer” per Lord Mustill in In re D (Minors) (Adoption Reports: Confidentiality) 1996 AC 593, 604.

The appellants accept that Parliament is entitled to interfere with such fundamental rights but only if it does so clearly and unambiguously: the “principle of legality”. The classic formulation of that principle is to be found in the judgment of Lord Hoffmann in R-v-Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

The appellants rely on such decisions as R-v-Lord Chancellor, ex parte Witham [1998] 2 WLR 849 to illustrate the scope of this principle. There it was held that the constitutional right of access to the courts could be abrogated only by a specific provision in primary legislation or by subordinate legislation whose vires in primary legislation specifically conferred the power to abrogate. “General words will not suffice”, said Laws J. at page 854C. Thus the general power in section 130 of the Supreme Court Act 1981 (as it was then titled) which gave the Lord Chancellor the power to prescribe by order Supreme Court fees did not authorise an order which set fees at such a high level as totally to preclude the poor from access to the courts. The order was therefore ultra vires. In so finding, the Divisional Court followed cases such as In re Boaler [1915] 1 KB 21, also relied on by the present appellants.

Mr O’Connor and Mr Fordham contend that Parliament has in the 1997 Act and the SIAC Procedure Rules not squarely confronted what it was doing. Mr Fordham argues that the rule-making power in section 5 (3) only authorises rules under which an appellant is not given full particulars of the reasons for the Secretary of State’s decision, not rules under which the appellant is not given the essence of the case against him. Section 5 (3) (d) contemplates rules under which SIAC may give an appellant a summary of the closed evidence. Moreover, in section 5 (1) Parliament identified two matters which must be taken into account by the rule-maker: securing a proper review of the decision and securing that information is not disclosed contrary to the public interest. That provision does not oblige the rule-maker to make the public interest override the need for a proper review of the decision. Thus, it is argued, Parliament has not required the procedural rules to exclude the disclosure of the essence of the case against an appellant. In contrast, the 2005 Act is much more explicit.

The appellants’ case is put in this way because they recognise that the SIAC Procedure Rules do impose an overriding duty on SIAC to secure the non-disclosure of material if that would be contrary to the interests of national security. That follows from the priority given by rule 4 (3) to rule 4 (1) and (2) over ‘the duty on SIAC to satisfy itself that it has the material properly to determine the proceedings’. There was at one stage in the argument a suggestion that there was no such priority, since the public interest, referred to in rule 4 (1), may include achieving a fair hearing. That argument cannot work because the reference in that paragraph to the public interest is in the express context of a situation where disclosure is likely to harm the public interest. The reference is not calling for a balancing exercise between, say, the harm to national security through disclosure and the harm to a fair trial from non-disclosure. It is simply setting out a number of situations in which non-disclosure must be secured. Any one of those situations will require non-disclosure.

It is not contended by the appellants that rule 4 of the SIAC Procedure Rules is ultra vires the 1997 Act. But it is argued that one should read down a rule that interferes with fundamental rights unless it is mandated by the statute, in the sense that the rule-maker was obliged to make such a rule. In the present case it is submitted that there was no such obligation imposed by Parliament on the rule-maker. The appellants do accept that the power to ‘read down’ legislation under section 3 of the Human Rights Act 1998, so as to avoid incompatibility with Convention rights in an ECHR case, is more far-reaching than is implicit in the principle of legality: see H.M. Treasury-v-Ahmed [2010] UKSC 2. As Lord Phillips there said at para 112-115, the principle of legality only operates in the interpretation of general or ambiguous words in legislation in the absence of express language or necessary implication to the contrary, whereas section 3 of the Human Rights Act could involve departing from the unambiguous meaning the legislation would otherwise bear. Even so, it is argued that in the present case Parliament has not expressly or by necessary implication permitted a situation where an appellant does not receive the essence of the case against him.

At one point it was submitted on behalf of the appellants that, if in ECHR cases a particular meaning of legislative words was adopted by way of reading down so as to achieve compatibility, the same meaning of those words would apply in non-ECHR cases. Mr Tam for the Secretary of State cited clear authority to the contrary, R(Hurst)-v-London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, at para 48 and 52, and the point was then abandoned by the appellants.

They finally submitted that this issue had not been determined by RB (Algeria). They refer to Lord Phillips’ statement at para 75 that their Lordships had not heard argument on the issue of the use of closed material on the question of whether there was good reason to deport on grounds of national security, and to Lord Hope’s statement at para 226 that he was in general agreement with Lord Phillips analysis at para 74 – 105, which would include Lord Phillips’ statement. Lord Brown and Lord Mance also agreed generally with Lord Phillips. It is conceded that Lord Hoffmann’s view was that the statutory provisions about disclosure did not distinguish between the issues to which such evidence might be relevant, but it is said that he is to be seen as out on a limb. Moreover, the speeches generally rely on the fact that on the issue of safety on return it is the appellant who is putting forward a case as to risk, and he is not having to meet a case against him, unlike the situation on the national security issue.

For the Secretary of State, Mr Tam submits that the use of the closed evidence procedure in cases such as this is what Parliament has expressly provided for in the statute and in rules which are not said to be ultra vires. These provisions are clear and so cannot be displaced by application of the principle of legality. Section 5 of the 1997 Act may not require the rule-maker to abrogate an appellant’s right to know the gist of the case against him, but it does specifically confer the power to do so, and that is sufficient. The rule-maker was expressly authorised by Parliament to strike the balance in the rules between the factors referred to in section 5 (6), namely the need to secure a proper review of decisions and the need to prevent disclosure of information contrary to the public interest. Moreover, each time the SIAC Procedure Rules have gone before each House of Parliament, there has been debate before an affirmative resolution has been passed. Mr Tam has taken us to extracts from Hansard reporting these debates, not as an interpretative tool under Pepper-v-Hart [1993] AC 593 but as evidence that Parliament has squarely confronted the issues involved in the rules. That was spelt out by Sir Anthony Clarke M.R. giving the judgment of the court in MT (Algeria)-v- Secretary of State for the Home Department [2008] Q.B. 533, the case which eventually became RB (Algeria) in the House of Lords. At para 17, the Court of Appeal, having referred to the difficulty which sometimes arises in deciding whether Parliament had squarely confronted the fact that it was interfering with fundamental rights, said this:

“There is no such difficulty because, when Parliament passed the statutory scheme, it was concerned, and well knew that it was concerned, with very specific legislation to address a clear and particular case. In creating SIAC and providing for its particular procedure, including the use of special advocates, Parliament did squarely confront what it was doing and accepted the political cost. There are no sensible grounds for fearing that the full implications of its words may have passed unnoticed in the democratic process. It must be obvious that Parliament was well aware that the SIAC procedure would be used in claims under the Human Rights Convention including in particular under article 3.”

The Secretary of State submits that that is an accurate summary of the position in respect of SIAC’s procedures under the 1997 Act and the SIAC Procedure Rules, whether it is dealing with the issue of the threat to national security or the issue of a possible breach of article 3 of the ECHR because of risk on return. Indeed, it was the former issue which, as Hansard shows, Parliament was principally focussing on in approving those procedures. If, as RB (Algeria) makes clear, they exclude the principle of legality in cases involving safety on return, a fortiori they do so when a threat to this country’s national security is the issue. It is, says Mr Tam, quite clear that the reasoning in RB (Algeria) applies to the present case and indeed that the majority of their Lordships saw the SIAC procedures as Parliament striking the balance as it was entitled to, irrespective of the issue in question.

The appellants raise important and forceful points on this issue. There is no doubt that to deprive anyone, including an alien, of even the essence of the case put against him as to why he is a threat to national security goes against the basic concept of a fair trial. The presence of a special advocate to protect his interests may be a palliative, but since the special advocate cannot discuss the closed material with an appellant in SIAC proceedings, he cannot obtain the latter’s instructions on it or discover what answer the appellant might be able to provide. Lord Mustill’s words, cited earlier in the judgment at paragraph 35, “what he does not know, he cannot answer”, vividly bring out the extent of the handicap under which such an appellant labours. Knowing what material adverse to you the court has seen is undoubtedly a fundamental right as a matter of English common law and is not dependent on the ECHR.

Nonetheless, it is equally true that our system of Parliamentary sovereignty means that Parliament can provide for procedures which interfere with and limit any such right, so long as it does so with sufficient clarity as to make its intention plain. In Lord Hoffmann’s words in ex parte Simms, referred to earlier at paragraph 35 of this judgment, Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. But it must squarely confront what it is doing. Fundamental rights will only be overridden by express language or necessary implication, not by general or ambiguous words. As was said in Ahmed (ante, para. 38), the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention.

The correctness of this approach is not in issue. What it is necessary to ask, therefore, is whether Parliament has expressly or by necessary implication displayed its intention that an appellant in SIAC cases is not to be told the essence of the closed material if that disclosure would be contrary to the interests of national security or in some other way contrary to the public interest. There can be no doubt that that outcome is one which is provided for by the SIAC Procedure Rules. As I have said already at paragraph 10, rule 4 (3) – SIAC’s duty to satisfy itself that it has the material enabling it properly to determine the proceedings - is expressly made subject, as rule 4 (3) itself makes clear, to its rule 4 (1) duty to secure that information is not disclosed contrary to the interests of national security or where it would be likely to harm the public interest. Rule 38 also makes the point with great clarity. If the Secretary of State objects to the disclosure of closed material, SIAC must uphold that objection if it considers that disclosure would be contrary to the public interest: rule 38 (7). And, while that rule makes provision for the possible service on an appellant of a summary of the closed material, SIAC is obliged to secure that the summary does not contain any information or other material, the disclosure of which would be contrary to the public interest. It follows that, if the disclosure of the essence of the closed material would harm national security, then under the SIAC Procedure Rules such disclosure must not be made.

In my judgment, those Rules are clear and unambiguous. The appellants do not contend that they are ultra vires. That in itself distinguishes this from ex parte Witham. Their argument is that, in some way, the SIAC Procedure Rules should be interpreted by the courts so as to respect the appellants’ right to a fair trial by construing those Rules as allowing the disclosure of the essence of closed material, even if that would be contrary to the interests of national security. We cannot do that. It is only when legislation, including such subordinate legislation, is ambiguous that the courts can act in that way, so as to achieve the preservation of a fundamental right. This court is not dealing with a case where section 3 of the Human Rights Act 1998 empowers it to “read down” these provisions. As the House of Lords emphasised in Ahmed, where section 3 does not apply, the courts cannot depart from the unambiguous meaning of the provision. I can see no ambiguity in the words in rules 4 and 38 to which I have referred. Their meaning is plain.

Even had the appellants raised an argument that the SIAC Procedure Rules were ultra vires, I could not accept that such an argument would succeed. The principle of legality does not require the primary legislation to “mandate”, in the sense of place a duty upon, the rule-maker to prescribe rules which interfere with a fundamental right such as the right to a fair trial: it is enough for the primary legislation to authorise the making of such rules, so long as it does so clearly and with the intent that the rules may so interfere. It is Parliament’s intention which is at the heart of this. When one looks at the 1997 Act, one finds that the rule-making power in section 5 expressly enables the Lord Chancellor to strike the balance between the need to have decisions properly reviewed and the need not to disclose information contrary to the public interest: section 5 (6). It is clearly implicit in that provision that the Lord Chancellor may give priority to the need to protect the public interest by non-disclosure. He has done so in the SIAC Procedure Rules. But Parliament has also in section 6 approved the institution of a special advocate to represent the interests of an appellant in proceedings from which the latter is excluded. It did so because it recognised that there could be circumstances where the appellant did not know the essence of the closed material, and it was seeking to provide some sort of safeguard, albeit a necessarily imperfect one.

In addition, it is not open to this court to find that rule 4 of the SIAC Procedure Rules is ultra vires. That is because the House of Lords in RB (Algeria) has already held it to be intra vires. In the words of Lord Phillips, endorsed by the other members of the House,

“Rule 4 of the 2003 Rules falls fairly and squarely within the power to make rules granted by section 5 of the 1997 Act”: para 82.

That reflected the view expressed by Lord Bingham in R (Roberts)-v- Parole Board [2005] UKHL 45; [2005] 2 AC 738 at paragraph 26, when he referred to the procedures set out in the SIAC Procedure Rules and commented, obiter:

“…. It seems clear that they have been authorised by primary legislation and by rules approved in Parliament.”

One notes that, in arriving at that view, Lord Bingham made reference in the same paragraph to the proceedings in the House of Lords (as a legislative body) when the first procedure rules made under the 1997 Act were before the House for approval. Lord Bingham observed that the Lord Chancellor, in seeking approval of the rules, acknowledged that the SIAC procedures departed from what would ordinarily be required to satisfy natural justice. It seems to me that the history of the SIAC Procedure Rules is such that one cannot conclude that Parliament has failed to confront squarely what it was doing. The first set of rules made under section 5 of the 1997 Act were the Special Immigration Appeals Commission (Procedure) Rules 1998. What is now rule 4 in the 2003 version of those rules was at that time rule 3. It was in identical terms to the present rule 4, save for a minor difference that at the end of rule 3 (3), instead of the words “properly to determine proceedings” now used, one finds the phrase “properly to review decisions”. Nothing seems to turn on that.

The draft rules, laid before the House for approval by affirmative resolution, used the same wording. The extract from Hansard, which we have been shown, does indeed reveal that the Lord Chancellor told the House that the proceedings departed from what would normally be required to satisfy natural justice, that draft rules had been available during the passage of the 1997 Act “to give a flavour of the procedures” likely to be adopted, but that because these procedures were not set out in detail on the face of the Act, the government had decided that the rules should be subject to affirmative resolution (Hansard, H.L. 29.7.1998, col. 1587). Similar points were made on behalf of the government in the debate on the rules in the House of Commons, where the Parliamentary Secretary to the Lord Chancellor’s Department told the House that:

“the rules underline the commission’s responsibility to ensure that information is not disclosed contrary to the public interest.” (Hansard, H.C. 23.7.1998).

Both Houses approved the rules by affirmative resolution.

The rules were debated again when amended in 2000, and then the 2003 version of the SIAC Procedure Rules were likewise debated and approved by both Houses by affirmative resolution in 2003. No one reading the record of the debates in both Houses could fail to realise that Parliament was well aware of the inroads made under these procedures into the normal processes required for a fair trial. Some members indeed expressed concern about those inroads, while recognising the difficult problems with which the rules sought to deal.

Both in passing the 1997 Act and in approving the SIAC Procedure Rules, Parliament has clearly confronted the fact that the right to a fair trial was being curtailed by the powers and procedures being approved. That, after all, was why the unusual safeguards of a special advocate and of the control exercised by SIAC itself were also introduced, in an attempt to reduce the risk of injustice to an appellant. I accept that there will be instances where there is obvious unfairness to an appellant, but it is an unfairness which Parliament has patently intended and authorised. The situation is entirely different from cases such as ex parte Witham, where a very general power to set fees was being exercised in a way which was likely to result in some people being denied access to the courts, when there was no evidence that Parliament had ever contemplated such an outcome.

I turn finally to consider the submissions made about the decision in RB (Algeria). It is right that in his speech Lord Phillips of Worth Matravers dealt with the use of closed material simply in respect of the issue of the deportee’s safety on return and it seems that that issue was the focus of the argument. Even so, it is clear from Lord Hope’s speech at paragraph 222 that there was some argument, albeit brief, about reliance on closed material in respect of national security. There is express reference to two of the appellants’ submissions to that effect. But in any event, it appears to me that the reasoning of a majority of their Lordships applies and was intended to apply to cases of deportation where the issue is one concerning national security.

Lord Hoffman, as these appellants acknowledge, said so in terms. At paragraph 181, he stated:

“181.

It seems to me clear that the statutory provisions about disclosure of materials are solely concerned with the ways in which disclosure may damage the public interest and not with the issue to which such evidence may be relevant. Thus section 5 (6) of the 1997 Act says that in making procedural rules for SIAC the Lord Chancellor shall have regard in particular to “(b) the need to secure that information is not disclosed contrary to the public interest.” This is a perfectly general statement and I find it impossible to construe it as limited to cases in which some particular issue arises. Likewise, rule 4, which I have already quoted, elaborates on the meaning of “contrary to the public interest” but is entirely general in its application.”

Lord Hope agreed generally both with Lord Phillips’ analysis and with Lord Hoffmann’s approach as set out in identified paragraphs, including paragraph 181 (see paras. 226), but he also dealt with the question of non-disclosure himself, in terms which did not distinguish between the issue of national security and that of safety on return. Thus at para 230, he stated:

“230.

There remains however the question whether the use of closed material fails to meet the minimum standard of procedural fairness that is to be expected of any such tribunal in a democratic society. Procedure before SIAC is governed by the 1997 Act and by the rules that have been made under section 5. Section 5 (3), which describes what the rules may provide, rule 4 as it was at the time of the aliens’ appeals, a description of the rules that provide for the appointment of special advocates and the procedure that is to be adopted where the Secretary of State objects to disclosure are all to be found in paras 13-17 of Lord Phillips’ opinion. These procedures are intended to provide a fair balance between the need to protect the public interest and the need to provide the applicant with a fair hearing. As Mr Tam Q.C. for the Secretary of State pointed out, it is inherent that in any forum in which sensitive evidence might be relevant some adjustment will have to be made to normal procedures.”

He went on in the next paragraph to describe the approach of restricted disclosure as having been sanctioned by Parliament. Those passages were not confined to the issue of safety on return.

Lord Brown expressed his substantial agreement with Lord Phillips, Lord Hoffmann and Lord Hope, and while he referred to the fact that generally no case is being made against a deportee on the safety on return issue, the contrast Lord Brown was drawing was not with the national security issue but with control orders. Finally, Lord Mance dealt with the topic of non- disclosure in terms applicable just as much to the issue of national security, saying that:

“I do not consider that the use of the closed material in the present context of deportation offends against either Convention or domestic principles of fairness.” (para. 264).

So, while the main focus of that case was on the issue of non-disclosure in so far as that related to safety on return, the majority of the House pronounced upon that issue in terms which are just as applicable to deportation appeals where the alleged threat to national security is being challenged. For my part I would treat the ratio of RB (Algeria) as one which applies to deportation appeals before SIAC, whatever issue is being raised by the appellant, and if that is right, then that case is binding on this court and is sufficient to determine this second matter with which we have to deal. I have, however, taken RB (Algeria) last in my reasoning, because even if that decision by their Lordships’ House did not exist, I would have reached the same conclusion for the reasons set out earlier.

It follows that I would reject the appellants’ arguments on this issue of whether there is some irreducible minimum of information which must be provided to an appellant in SIAC proceedings in order to secure procedural fairness. How much information on the issue of national security is to be provided will be limited by whether its disclosure would be contrary to national security or to the public interest more generally. In many cases, it may well be possible for him to be provided with at least the essence of the closed material, but that will not always be so, and to the extent that that intrudes upon the fairness of the proceedings, that outcome has been clearly sanctioned by Parliament.

For the reasons I have set out, I would dismiss these appeals.