XH and AI, R (On the Application Of) v The Secretary of State for the Home Department

Introduction

This is the judgment of the court, to which all its members have contributed.

These appeals concern the cancellation of the passports of the appellants, XH and AI, on the grounds that the Secretary of State suspects that they plan to travel to be involved in terrorism-related activity. The Secretary of State is concerned to prevent them from travelling to Syria to fight with terrorist organisations there.

The appeals are from the decision of the Divisional Court, which dismissed the appellants’ various grounds of challenge to the cancellation of their passports. The Divisional Court granted both XH and AI permission to appeal in relation to one common ground of challenge, namely their argument that the Secretary of State’s purported exercise of powers under the royal prerogative to cancel their passports was invalid, because that prerogative power has been impliedly abrogated by the Terrorism Prevention and Investigation Measures Act 2011 (“the TPIM Act”). We refer to this ground as “the royal prerogative ground”; it was addressed as issue 1 in the judgment of the Divisional Court.

The Divisional Court also granted XH permission to appeal in relation to a group of complaints based on EU law, namely that there had been insufficient procedural safeguards, insufficient justification and no advance consultation in relation to the cancellation of his passport (“the EU law grounds”, issue 3 in the judgment of the Divisional Court).

On this appeal, Mr Beard QC for AI presented the submissions for the appellants in relation to the royal prerogative ground and Mr Southey QC presented the submissions for XH in relation to the EU law grounds.

In addition to these two grounds of appeal, XH sought to introduce two further issues on the appeal: (i) that there was unfairness and breach of Article 6 of the European Convention on Human Rights (“ECHR”), EU law and common law by reason of insufficient protection for his legal professional privilege (“LPP”) in dealing with his lawyers (“the LPP ground”, issue 7 in the judgment of the Divisional Court); and (ii) that the decision of the Divisional Court to make a costs order against XH was wrong in principle (“the costs ground”). The Divisional Court refused permission to appeal in relation to these grounds, but XH made an oral application to this court for permission to appeal in relation to them. At the hearing we refused permission to appeal and indicated that our reasons for doing so would be given in the judgment: see section 10 below.

In the course of the proceedings below, the Secretary of State applied for and was granted declarations under section 6 of the Justice and Security Act 2013 (“the JSA 2013”) to enable her to present evidence to the court of a secret nature, which for public interest immunity and national security reasons could not be put into the public domain or given to the appellants. Pursuant to these declarations, special advocates were appointed to represent the interests of the appellants in the closed part of the proceedings before the Divisional Court. There was a closed hearing before the Divisional Court in relation to XH’s case at which it reviewed the closed evidence available in relation to XH, with assistance from the special advocates.

Factual background

XH is a British national. His passport was cancelled on 29 April 2014 for the reasons contained in a letter of that date, as follows:

"This letter is to inform you that the above passport has been cancelled and you are no longer permitted to use this document to travel to and from the United Kingdom.

There is no entitlement to a passport. The decision to issue, withdraw or refuse to issue a British passport is a matter for the Secretary of State for the Home Department (the Home Secretary). The Home Secretary considers that it is not in the public interest that you should hold a passport.

You are a British National who is involved in terrorism-related activity. It is assessed that you are likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest.

The passport remains the property of the Crown and will be retained. Her Majesty's Passport Office requests that you return the passport to the police officer delivering this letter.

It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application. … "

The decision to cancel XH’s passport was based on the closed material reviewed by the Secretary of State.

On 13 November 2014, XH was convicted of a series of criminal offences involving robbery, attempted robbery and possession of a bladed article. On 19 November 2014, he was sentenced to a term of imprisonment of 5 years and 6 months.

On 26 November 2014, XH commenced the present proceedings. In the course of the proceedings XH amended his grounds of claim, to adjust those grounds in the light of further reasons given by the Secretary of State as the case proceeded.

Additional reasons for the cancellation of XH’s passport were provided in a further decision letter of 16 February 2015, as follows:

"You are a British national involved in terrorism-related activity. It is assessed that you are an Islamist extremist. It is assessed that prior to the exercise of the Royal Prerogative you have been in possession of media concerning anti-American and Israeli propaganda and video clips in support of jihad and violence. It is assessed that prior to the exercise of the Royal Prerogative you may have maintained contact with associates assessed to be located in Syria where they were engaged in Islamist extremist activities. It is assessed that prior to the exercise of the Royal Prerogative you were likely to travel overseas in the future in order to engage in further terrorism-related activity. It is assessed that these activities overseas would present a risk to the national security of the United Kingdom."

On 21 October 2015, the Divisional Court (Burnett LJ and Cranston J) granted the declaration under section 6 of the JSA 2013 to allow for a closed part of the proceedings in parallel with the open part of the proceedings: [2015] EWHC 2932 (Admin).

Following meetings between the special advocates and counsel for the Secretary of State, the Secretary of State provided further reasons, and some disclosure, to XH in a letter dated 3 May 2016. That letter stated as follows:

"The Secretary of State was invited to exercise the Royal Prerogative to cancel the Claimant's British passport on the grounds that his activities are undesirable for reasons of national security.

She was provided with a written submission and supporting material which recommended that she agree that the public interest criteria for exercising the prerogative are met and that the passport should be cancelled, and that she should sign an authority for the passport to be retrieved from the Claimant. What follows is a summary of that submission;

The Claimant is a British citizen, born in London in 1990 and currently residing there. He has a criminal record dating back to 2009, which includes offences such as theft and violence against a police officer. He is believed to be currently involved in criminal activity including dealing in stolen property and student loan fraud;

The Claimant is an Islamist extremist. He may have maintained contact with associates assessed to be located in Syria where they are engaged in Islamist extremist activities, including fighting; he has repeatedly expressed a desire to travel overseas to participate in Islamist extremist activities; and he has been involved in activities in tangible and practical support of Syria-based Islamist extremist associates;

The Home Secretary's written ministerial statement of 25 April 2013 sets out the criteria for exercising the Royal Prerogative on public interest grounds, and provided that passport facilities may be refused or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example engage in terrorism-related activity or other serious or organised criminal activity;

The detail set out in the submission shows that the Claimant is intending to travel overseas to engage in terrorist related activity, likely to be related to Syria. His past, present and proposed activities if he should travel to Syria support the view that it would be contrary to the public interest for him to hold a British passport. The risk posed by the Claimant is assessed to be better managed if he were unable to travel overseas to Syria;

Removal of the passport is necessary and proportionate to the threat the Claimant poses; other disruptive measures have been considered and rejected;

Although there may be arrest opportunities, they are uncertain and it would not necessarily be the case that the Claimant would be required to surrender his passport as a condition of bail;

There is no reason to believe that the Claimant has family overseas or any legitimate overseas travel plans;

If there are compelling circumstances requiring the Claimant to travel within the EU and if the risk to national security could be adequately managed, it may be possible to consider issuing a single-use travel document;

If following a decision to exercise the Royal Prerogative, the Claimant applied for a passport or a temporary travel document, or requested reconsideration of the cancellation of his passport, the assessment will be reviewed and further advice provided to the Secretary of State;

There is written administrative guidance setting out the process by which the Secretary of State is invited to exercise her power under the Royal Prerogative to cancel a British passport on the grounds of national security. That process was followed in the case of this Claimant;

The Secretary of State's case against the Claimant is not based on his previous travel overseas."

A two-day hearing had been fixed for an application for further orders pursuant to the section 6 declaration in the closed part of the proceedings. In the event, this was vacated by consent between the special advocates and the Secretary of State, after the special advocates had reviewed the closed material and confirmed that no further disclosure issues arose under Case C-300/11 ZZ (France) v. Secretary of State for the Home Department [2013] QB 1136.

However, as was confirmed at the hearing before us, the substantive hearing before the Divisional Court of XH’s claim for judicial review also included a closed hearing involving counsel for the Secretary of State and the special advocates, at which the court was taken through the closed evidence in the case.

On 3 June 2016, XH served his final Amended Grounds of Claim. On 20 June 2016, he provided a witness statement to accompany his claim. In his witness statement he denied any involvement in Islamic extremism or terrorism-related activities and any intention to travel to Syria.

XH’s Amended Grounds of Claim included the submission at paragraph 18 that:

“proportionality cannot be established because … [XH’s] account demonstrates that there is no substance in the allegations [against him]. This means that it has not been established that there has been personal conduct required in order to comply with article 27(2) [of Directive EC/2004/38 (“the Directive”)].”

After the substantive hearing before the Divisional Court the special advocates applied on 26 July 2016 on behalf of XH for a review and revocation of the declaration under section 6 of the JSA 2013. In their application they stated that they had had no need to make reference to any closed material and that the court had placed no reliance on closed material.

At the hearing before us, it became apparent that this was unfortunate phraseology, because it led Mr Southey to think that the Divisional Court had not reviewed the closed material in order to consider the submission by XH that the allegations against him were without substance and untrue, whereas the Divisional Court had in fact carried out that exercise. Moreover, the special advocates had also themselves reviewed the closed material in order to satisfy themselves that there remained no outstanding disclosure issues pursuant to the guidance given in ZZ (France). What the special advocates meant was that the Divisional Court had not found it necessary to produce a separate closed judgment. This was because, having reviewed the closed material, the special advocates confirmed to the Divisional Court that it was their view that there was no properly arguable case which could be presented in the closed part of the proceedings to the effect that the Secretary of State did not have sufficient evidence before her to suspect on objective grounds, according to the relevant legal standards of rationality and proportionality, that XH was indeed involved in Islamic extremism and did indeed intend to travel to Syria to fight, as set out in the letter of 3 May 2016.

AI is a British national of Iraqi Kurdish background. He is 19 years old. At the time of the decisions under challenge, he was 17 years old.

On or around 26 March 2014, AI's elder brother, Mohammed, left the United Kingdom and travelled to Syria. He is currently located in Iraq and is fighting with the terrorist group Islamic State.

On 4 November 2014, West Midlands Police searched AI's home. During the search, they seized his passport, which had been held at a relative's house, and mobile telephone. On 21 April 2015, AI was arrested on suspicion of planning to travel to Syria and interviewed under caution. It was subsequently decided that no further action would be taken against him.

On 26 June 2015, the Secretary of State cancelled AI's passport for the reasons set out in a letter of that date which stated as follows:

"There is no entitlement to a passport. The decision to issue, withdraw or refuse to issue a British passport is a matter for the Secretary of State for the Home Department (the Home Secretary). The Home Secretary considers that it is not in the public interest that you should hold a passport.

You are a British national who is assessed to be supportive of the actions and ideology of the terrorist organisation known as Islamic State (also known as IS, ISIL and ISIS). It is assessed that you aspire to travel to Syria or Iraq in the future to engage in, and provide support for, terrorism-related activity on behalf of the Islamic State. It is assessed that these activities in Syria or Iraq would present a risk to the national security of the United Kingdom. You are therefore considered a person whose past, present or proposed activities, actual or suspected, are so undesirable that the grant or continued enjoyment of passport facilities is believed to be contrary to the public interest.

The passport remains the property of the Crown and will be retained.

It is open to you to apply for a passport at a later date. The issue of a passport will be determined on the circumstances at the time of any application. … "

On 10 July 2015, AI's representatives sent a pre-action protocol letter to the Secretary of State. The Secretary of State reviewed the decision of 26 June 2015 and, on 10 September 2015, wrote confirming the decision to cancel AI's passport. The relevant part of the letter stated as follows:

"You are a British national who is assessed to have an extremist mind-set and who has published via social media a body of Islamist extremist material. You are assessed to be supportive of the actions and ideology of the terrorist organization known as the Islamic State (also known as IS, ISIL and ISIS). Your brother, Mohammed …, is currently located in Iraq, fighting with ISIL and has encouraged you to travel to ISIL controlled territory. It is therefore assessed that you aspire to travel to Syria or Iraq in the future in order to engage in, and provide support for, terrorism-related activity likely on behalf of ISIL. It is assessed that these activities in Syria or Iraq would present a risk to the national security of the United Kingdom."

On 9 October 2015, the Secretary of State responded to AI's pre-action protocol letter. The present claim was commenced on 9 December 2015 challenging the 10 September 2015 decision.

On 1 February 2016, Langstaff J granted permission. On 22 March 2016, Foskett J made a declaration under section 6 of the JSA 2013.

On 22 May 2016, AI was arrested and charged with an offence under section 38B of the Terrorism Act 2000 for failing to disclose information relating to another individual's plans to travel to Syria or Iraq to join Islamic State. He was remanded in custody and was convicted on 23 December 2016.

The Royal Prerogative

The background to the Crown’s prerogative powers was described in R (Miller & another) v Secretary of State for Exiting the European Union [2017] UKSC 5 at paras. [40] to [53]. They constitute the residue of legal authority left in the hands of the Crown. Lord Reid said in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, at p. 101:

"The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute."

As was explained in the Miller case at para. [49], Lord Reid’s description of the prerogative powers as a “relic of a past age” should not be understood as implying that the royal prerogative is either anomalous or anachronistic. There are important areas of government activity which, today as in the past, are essential to the effective operation of the state and which are not covered, or at least not completely covered, by statute.

The grant or withdrawal of a passport has always been an exercise of the royal prerogative. As stated by O’Connor LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 QB 811 at p. 817C-D:

“…there is no doubt that passports are issued under the Royal Prerogative in the discretion of the Secretary of State”.

Successive Governments have set out the policy on the exercise of that power in Ministerial Statements. Those Ministerial Statements are set out in paragraph [24] of the judgment of the Divisional Court below. For the purposes of this appeal, the important one is a written Ministerial Statement by the Secretary of State published on 25 April 2013 (“the WMS”). This represents current policy and the policy in force at the time of the decisions in the appellants’ cases. So far as relevant, it is as follows:

“There is no entitlement to a passport and no statutory right to have access to a passport. The decision to issue, withdraw, or refuse a British passport is at the discretion of the Secretary of State for the Home Department (the Home Secretary) under the Royal Prerogative.

This Written Ministerial Statement updates previous statements made to Parliament from time to time on the exercise of the Royal Prerogative and sets out the circumstances under which a passport can be issued, withdrawn, or refused. It redefines the public interest criteria to refuse or withdraw a passport.

A decision to refuse or withdraw a passport must be necessary and proportionate. The decision to withdraw or refuse a passport and the reason for that decision will be conveyed to the applicant or passport holder. The disclosure of information used to determine such a decision will be subject to the individual circumstances of the case.

The decision to refuse or to withdraw a passport under the public interest criteria will be used only sparingly. The exercise of this criteria will be subject to careful consideration of a person’s past, present or proposed activities.

For example, passport facilities may be refused to or withdrawn from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity or other serious or organised criminal activity.

This may include individuals who seek to engage in fighting, extremist activity or terrorist training outside the United Kingdom, for example, and then return to the UK with enhanced capabilities that they then use to conduct an attack on UK soil. The need to disrupt people who travel for these purposes has become increasingly apparent with developments in various parts of the world

Operational responsibility for the application of the criteria for issuance or refusal is a matter for the Identity and Passport Service (IPS) (now HM Passport Office) acting on behalf of the Home Secretary. The criteria under which IPS (now HM Passport Office) can issue, withdraw or refuse a passport is set out below.

…

A passport application may be refused or an existing passport may be withdrawn. These are the persons who may be refused a British passport or who may have their existing passport withdrawn:

…

…

iii.

iv.

A person may be prevented from benefitting from the possession of a passport if the Home Secretary is satisfied that it is in the public interest to do so. This may be the case where:

• …

• a person whose past, present or proposed activities, actual or suspected, are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest.

• There may be circumstances in which the application of legislative powers is not appropriate to the individual applicant but there is a need to restrict the ability of a person to travel abroad.

The application of discretion by the Home Secretary will primarily focus on preventing overseas travel. There may be cases in which the Home Secretary believes that the past, present or proposed activities—actual or suspected—of the applicant or passport holder should prevent their enjoyment of a passport facility whether overseas travel was or was not a critical factor.”

Withdrawal of a passport, as mentioned in the WMS, is the same as cancellation of a passport, which is the expression used in the letters from the Secretary of State to XH dated 29 April 2014 and 3 May 2016 and in the letter from the Secretary of State to AI dated 26 June 2015.

Crown prerogative powers may be expressly or impliedly abrogated by primary legislation. The central issue on this aspect of the appeal is whether the prerogative power to cancel or withdraw passports has been impliedly abrogated by the TPIM Act insofar as they relate to the same subject matter, namely imposing foreign travel restrictions on an individual in order to prevent or restrict the individual’s involvement in terrorism-related activity.

Aside from the Miller case (concerning, among other things, whether the European Communities Act 1972 removed the Crown’s prerogative power to take action to withdraw the United Kingdom from the European Union) the three leading cases on the issue of implied statutory abrogation of the royal prerogative, which are relied upon by the appellants on this appeal, are Attorney-General v De Keyser's Royal Hotel Limited [1920] AC 508, R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] AC 513 and Laker Airways Ltd v Department of Trade [1977] QB 643. These cases show that whether there is an implied abrogation is a matter of interpretation of the particular statute in each case, in its specific context and having regard to the subject matter with which it is dealing.

The factual setting for the decision in De Keyser’s Royal Hotel was that the taking of property by the Crown during wartime had previously been permitted in exercise of the Crown's prerogative powers without any obligation to pay compensation, but the legislation in issue required the payment of compensation in relation to such a taking. The House of Lords held that the Crown's prerogative power to take without paying compensation had thereby been impliedly removed by the legislation.

The Fire Brigades Union case concerned the Criminal Injuries Compensation Scheme, which had originally been introduced under the Crown's prerogative powers. Parliament enacted legislation to put such a scheme on a statutory footing, applying certain rates of compensation as set out in the statute. The statutory scheme was not brought immediately into effect, but according to the statute the Secretary of State had to keep under review whether he should make an order to bring it into effect. He decided instead to exercise the Crown's prerogative to make changes to the compensation scheme by specifying tariff compensation rates which were lower than those set out in the statutory provisions. The House of Lords held that this was unlawful, as the Crown's prerogative power to change the scheme had been impliedly abrogated by the statute to the extent that he was not entitled to exercise it as he had sought to do, namely in a manner which in practice meant he debarred himself from exercising the statutory power (to bring the statutory scheme into effect) for the purposes and on the basis which Parliament intended. The new tariff scheme was not introduced as a temporary stop-gap, but as a long-term replacement for the existing scheme and its statutory embodiment.

In Laker Airways the Court of Appeal found that the Crown's prerogative powers in relation to the making of treaties had been impliedly abrogated by a statutory scheme for the licensing of air carriers. The claimant carrier had been licensed under the statute to provide an airline service between London and New York, but the Crown proposed to cancel the designation of the claimant as an approved carrier under the Bermuda Agreement 1946, a treaty between the United Kingdom and the USA, which designation was necessary to allow it to operate its service. The court held that this would be unlawful. The analysis of all three members of the Court of Appeal turned on what Parliament had intended in the primary legislation.

The TPIM Act

The TPIM Act was enacted following a review of the control order regime established under the Prevention of Terrorism Act 2005 (“the 2005 Act”). It came into force on 14 December 2011. It has been amended, in certain respects, by the Counter-Terrorism and Security Act 2015.

Section 1 of the TPIM Act repealed the 2005 Act.

Section 2 of the TPIM Act makes provision for terrorism prevention and investigation measures (“TPIMs”). It provides, so far as relevant, as follows.

“(1)

The Secretary of State may by notice (a “TPIM notice”) impose specified terrorism prevention and investigation measures on an individual if conditions A to E in section 3 are met.

(2)

In this Act “terrorism prevention and investigation measures” means requirements, restrictions and other provision which may be made in relation to an individual by virtue of Schedule 1 (terrorism prevention and investigation measures).

(3)

In this section and Part 1 of Schedule 1 “specified” means specified in the TPIM notice. …”

Section 3 sets out the conditions for the imposition of such measures. It provides so far as relevant, as follows.

“(1)

Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

(2)

Condition B is that some or all of the relevant activity is new terrorism-related activity.

(3)

Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.

(4)

Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.

(5)

Condition E is that –

(a)

the court gives the Secretary of State permission under section 6, or

(b)

the Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission.

(6)

In this section “new terrorism-related activity” means –

(a)

if no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act);

(b)

if only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; …”

“Terrorism-related activity” is defined in section 4 as follows:

“(1)

For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following—

(a)

the commission, preparation or instigation of acts of terrorism;

(b)

conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c)

conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d)

conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a);

and for the purposes of this Act it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.

(2)

For the purposes of this Act, it is immaterial whether an individual's involvement in terrorism-related activity occurs before or after the coming into force of this Act.”

The terms “act of terrorism” and “terrorism” are defined in section 30(1) as follows:

“act of terrorism” includes anything constituting an action taken for the purposes of terrorism, within the meaning of the Terrorism Act 2000 (see section 1(5) of that Act);

…

“terrorism” has the same meaning as in the Terrorism Act 2000 (see section 1(1) to (4) of that Act);”

Section 5(1) of the TPIM Act provides that a TPIM notice comes into force when the notice is served on the individual or, if later, at the time specified for the purpose in the notice, and the notice is in force for the period of one year. Section 5(2) provides that the Secretary of State may by notice extend a TPIM notice for a period of one year beginning when the TPIM notice would otherwise expire. Section 5(3) provides, among other things, that a TPIM notice may be extended on only one occasion. Accordingly, the maximum duration of a TPIM notice is two years.

Section 6 addresses the prior permission of the court (Condition E in section 3(5)(a)). The function of the court on such an application is to determine whether the relevant decisions of the Secretary of State are obviously flawed, and, for that purpose, the court must apply the principles relevant to an application for judicial review.

Section 8 provides for a directions hearing which the individual can attend, and for a subsequent review hearing as soon as possible in relation to the imposition of measures on the individual.

Section 10 concerns the obligation of the police to investigate the possibility of prosecuting the individual for an offence relating to terrorism.

Section 11 provides for the Secretary of State to keep under review, during the period that a TPIM notice is in force, whether Conditions C and D are met.

Section 16 gives the individual to whom a TPIM notice relates a right to appeal to the court against any extension or revival of the notice. On any such appeal, the court must apply the principles applicable on an application for judicial review.

Section 19 requires the Secretary of State to prepare and lay before Parliament a three monthly report about the exercise of the powers to impose TPIMs and to extend, vary, revoke and revive a TPIM notice.

Section 20 requires the Secretary of State to appoint a person to review the operation of the TPIM Act. The independent reviewer must send to the Secretary of State a report on the outcome of each review. The current independent reviewer is David Anderson QC.

Section 21(1) provides that, except so far as otherwise provided under the section, the Secretary of State’s TPIM powers expire at the end of 5 years beginning with the day on which the TPIM Act is passed. The TPIM Act has now been extended to 13 December 2021 pursuant to section 21(2)(c) of the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 (SI 2016 No. 1166).

Section 23 provides that it is an offence to contravene, and specifies the sentences for contravention of, a TPIM notice. Save in the case of a travel measure, the offence is only committed if the contravention is without reasonable excuse. The maximum sentence for such an offence is 5 years imprisonment, but it is 10 years in the case of contravention of a travel measure.

Section 28(1) provides that, where the Secretary of State serves a TPIM notice, a revival notice or an extension notice on an individual, the Secretary of State must, by a further notice, state the period for which the TPIM notice is in force, the day on which the TPIM notice comes, or came, into force, and the day on which the TPIM notice will expire. Section 28(2) provides that an individual is not bound by a TPIM notice or a revival notice unless the notice is served personally on the individual.

Section 31(3) provides that:

“This Act extends to England and Wales, Scotland and Northern Ireland”.

Part 1 of Schedule 1 to the TPIM Act sets out the different TPIMs. The relevant one for these proceedings is the travel measure in paragraph 2 of the schedule (“the travel measure”). That paragraph is as follows:

“Travel measure

2

“(1)

The Secretary of State may impose restrictions on the individual leaving a specified area or travelling outside that area.

(2)

The specified area must be –

(a)

the United Kingdom, or

(b)

any area within the United Kingdom that includes the place where the individual will be living.

(3)

The Secretary of State may, in particular, impose any of the following requirements-

(a)

a requirement not to leave the specified area without the permission of the Secretary of State;

(b)

a requirement to give notice to the Secretary of State before leaving that area;

(c)

a requirement not to possess or otherwise control, or seek to obtain, any travel document without the permission of the Secretary of State;

(d)

a requirement to surrender any travel document that is in the possession or control of the individual.

(4)

“Travel document” means –

(a)

the individual’s passport, or

(b)

any ticket or other document that permits the individual to make a journey by any means –

(i)

from the specified area to a place outside that area, or

(ii)

between places outside the specified area.

(5)

“Passport” means any of the following –

(a)

a United Kingdom passport (within the meaning of the Immigration Act 1971);

(b)

a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom, or by or on behalf of an international organisation;

(c)

a document that can be used (in some or all circumstances) instead of a passport.”

Schedule 2 concerns the situation where the urgency was such there was no time to make a prior application to the court under section 6. The schedule requires the Secretary of State, immediately after issuing the TPIM notice in such a case, to refer to the court the imposition of the measures on the individual. The function of the court on such a reference is to consider whether the relevant decisions of the Secretary of State were obviously flawed. For that purpose, the court must apply the principles applicable on an application for judicial review.

Schedule 5 “confers powers of entry, search, seizure and retention on constables in connection with the imposition of measures on individuals”. Paragraph 11 authorises the retention, for as long as is necessary in all the circumstances, of anything seized under a power conferred by virtue of the schedule.

Schedule 6 authorises the police to take fingerprints or a non-intimate sample for an individual in England, Wales or Northern Ireland in respect of whom a TPIM notice is in force.

The proceedings

The claim by XH came before the Divisional Court as a “rolled up” hearing, for the court to consider both whether permission to apply for judicial review should be granted and, if it was, to proceed with the substantive hearing of the claims. The Divisional Court granted permission and proceeded to the substantive hearing. AH had been granted permission to apply for judicial review before the hearing in the Divisional Court.

The grounds of claim for both XH and AI before the Divisional Court included the royal prerogative ground and the grounds of claim for XH also relied on the EU law grounds and the LPP ground.

In relation to the royal prerogative ground, XH and AI submitted that the prerogative power to cancel a passport on grounds of suspected involvement in terrorism-related activity has been abrogated by the TPIM Act, which has imposed demanding procedural protections which must be complied with before a passport can be withdrawn on such grounds. The Secretary of State had not sought to exercise any power of withdrawal of a passport under the TPIM Act and, according to their submission, had no continuing prerogative power to cancel their passports.

Under the EU law grounds, XH submitted that the Secretary of State had breached his rights in EU law under the Directive and under Article 41 (“right to good administration”) and Article 47 (“right to an effective remedy and to a fair trial”) of the Charter of Fundamental Rights of the European Union (“the Charter”) in the following respects:

As regards the LPP ground, XH sought to rely upon disclosures by the security agencies in the course of the Belhadj v The Security Service proceedings before the Investigatory Powers Tribunal (case IPT/13/132-9/H) regarding interception of electronic communications, including the possibility of interception of communications covered by LPP, in order to suggest that his own communications with his lawyers had been intercepted, in violation of his right to respect for LPP, and that there was a chilling effect regarding his freedom to communicate with his lawyers.

In addition to these grounds, XH also claimed that there had been breaches of his rights under Article 6 and Article 8 of the ECHR; that there was insufficient justification for the cancellation of his passport for the purposes of domestic public law; and that the Secretary of State had wrongfully used the royal prerogative (assuming, contrary to his primary contention, that prerogative powers remained in place) instead of using powers under the TPIM Act. AI claimed, in addition, that there had been a breach of his fundamental rights because the decisions in his case were not in accordance with the law or the principle of legal certainty.

The judgment of the Divisional Court

The Divisional Court dismissed all the grounds of challenge.

In relation to the royal prerogative ground, it held that the TPIM Act did not impliedly remove or abrogate the pre-existing prerogative power to cancel a passport: paras. [38]-[69].

In relation to the EU law grounds, the Divisional Court held that the cancellation of the appellants’ passports was a measure falling within the scope of EU law, which was therefore engaged: paras. [73]-[81]. The Secretary of State does not appeal against this ruling. On the substantive merits of the EU law grounds, the court held as follows.

In relation to the LPP ground, the Divisional Court held that there was no evidence of abuse of the court’s processes and that XH’s case was based on speculation; a theoretical risk of infringement of LPP was insufficient; and the mere assertion that LPP communications might have been intercepted did not mean that no fair hearing was possible: paras. [134]-[137]. In so far as the complaint was that there were no adequate safeguards in place to protect LPP communications generally from interception by the intelligence agencies, the proper forum for that complaint was the Investigatory Powers Tribunal, pursuant to section 65 of the Regulation of Investigatory Powers Act 2000: para. [133].

It is unnecessary to say more about the other grounds of challenge which were dismissed by the Divisional Court, since they are not sought to be revived on this appeal.

The Grounds of Appeal

As noted above, the only grounds of appeal to this court for which the appellants have permission to appeal are (1) the royal prerogative ground and (2) the EU law grounds. Permission to appeal has been refused in relation to the LPP ground and the costs ground.

Discussion: the royal prerogative ground of appeal

As previously stated, at the heart of this ground of appeal is the submission that the relevant power under the royal prerogative, namely to cancel an individual’s passport in order to prevent or restrict their involvement in terrorism-related activity, was ousted or abridged by the TPIM Act.

The oral submissions on this ground were advanced by Mr Daniel Beard QC, for AI. His oral submissions were adopted in their entirety, and without any additional submissions, by counsel for XH.

Mr Beard’s over-arching submission was that, Parliament having legislated to prevent travel for terrorist purposes in a legislative scheme that balances the public interest with safeguards for the individual liberty of suspects, it is not lawful to use the royal prerogative to circumvent the safeguards. He submitted that followed from the analysis and decision in De Keyser’s Royal Hotel or, alternatively, the Fire Brigades Union case and Laker Airways.

He referred to several passages in the speeches and judgments in those cases, including, in particular, passages in the speeches in De Keyser’s Royal Hotel at p. 526 (Lord Dunedin), pp. 539-540 (Lord Atkinson), p. 554 (Lord Moulton), p. 561 (Lord Sumner) and pp. 568 and 575-576 (Lord Parmoor). The following passage in the speech of Lord Parmoor at pp. 575-576 is representative of the reasoning in those speeches, and part of it was quoted in the judgment of the Supreme Court in the Miller case at para. [48]:

“The constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject. I think that the statutory provisions applicable to the interference by the Executive with the land and buildings of the respondents, bring the case within the above principle. It would be an untenable proposition to suggest that Courts of law could disregard the protective restrictions imposed by statute law where they are applicable. In this respect the sovereignty of Parliament is supreme. The principles of construction to be applied in deciding whether the Royal Prerogative has been taken away or abridged are well ascertained. It may be taken away or abridged by express words, by necessary implication, or, as stated in Bacon's Abridgement, where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong. Statutes which provide rent or compensation as a condition to the right of the Executive to take over the temporary possession of lands or buildings on the occasion of public exigency come, in my opinion, within the category of statutes made for the advancement of justice and to prevent injury and wrong. This is in accord with the well-established principle that, unless no other interpretation is possible, justice requires that statutes should not be construed to enable the land of a particular individual to be confiscated without payment. I am further of opinion that where a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such regulation is inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced.”

Mr Beard drew attention to the background to the enactment of the TPIM Act. He laid particular weight on the recognition both in the review which preceded it, and in the statements made by the Home Secretary during its passage through Parliament, that there was a need for a better balance of the State’s security powers and civil liberties than had existed under the control order regime.

In her foreword to the published review (Cmnd 8004), Theresa May MP, as Home Secretary, said

“We must correct the imbalance that has developed between the State’s security powers and civil liberties, restoring those liberties wherever possible and focusing those powers where necessary.”

The Introduction to the published review said:

“The aim of the review is to ensure that the powers and measures covered by the review are necessary, effective and proportionate and meet the UK’s international and domestic human rights obligations.”

On the second reading of the TPIM bill (on 7 June 2011), the Home Secretary said that public safety “is enhanced, not diminished, by appropriate and proportionate powers”, that “it is only right that it is Parliament and not the Executive that decides what types of measures may be imposed”, and that the bill reflected “the right balance between civil liberties and national security”. She emphasised the limits on the proposed TPIMs, including that a person would be subject to a TPIM notice for no more than 2 years in response to specific terrorist-related activity.

Mr Beard accepted that the travel measure provisions in paragraph 2 of schedule 1 do not expressly deal with the issue, refusal and cancellation of a passport. They are limited to requirements not to possess or otherwise control or seek to obtain a travel document and a requirement to surrender a travel document.

He submitted that, nevertheless, it is significant that the travel measure provisions are specific in defining a “travel document” as including a passport and in defining a passport as including, among other things, a United Kingdom passport. He submitted that it is clearly implicit in the TPIM Act that, insofar as the royal prerogative covered the same ground as the travel measure, the prerogative was abrogated, or at least suspended, for the duration of the TPIM Act.

He relied upon De Keyser’s Royal Hotel as authority that what is critical in this context is an overlap of result and subject matter in the prerogative powers and the legislation in issue. He referred particularly in that context to Lord Sumner’s references in his speech to identity of “subject matter”. Mr Beard submitted that it did not matter, therefore, that the royal prerogative regarding passports is more extensive than the statutory scheme in the TPIM Act or that the TPIM Act covers areas other than passports and travel. He pointed out that in Laker Airways the Bermuda Agreement covered a far wider area than the relevant UK legislation.

He submitted that, in relation to the particular issue of restricting travel to prevent an individual’s involvement in terrorism-related activity, there was identity of both subject matter and of practical result as between the statutory provisions and the prerogative powers. He said that the statutory powers to restrict an individual from possessing, controlling or seeking to obtain a passport and to require that a passport be surrendered would achieve the same practical result as an exercise of the prerogative power to cancel the passport. He submitted that that conclusion was also supported by the power in paragraph 11 of schedule 5 of the TPIM Act to retain anything seized in exercise of the police powers of entry, search and seizure under the schedule. Indeed, he questioned why it would ever be necessary to cancel a passport which, as in the case of AI and XH, was already in the possession of the Secretary of State.

Mr Beard submitted that, given the objective of the TPIM Act was to achieve a more proportionate balance between security, on the one hand, and personal liberties, on the other hand, which was achieved by the detailed conditions for the imposition and duration of TPIMs, it is inconceivable that Parliament would have intended the royal prerogative to survive insofar as there was a direct overlap of subject matter and practical result. He emphasised the difference between the detailed conditions and other provisions of the TPIM Act and what he described as the vagueness of the royal prerogative. The TPIM Act specifies in section 3 the conditions to be satisfied before a TPIM may be imposed on an individual, specifies a maximum two year time limit for TPIM notices (in the absence of new terrorism-related activity), requires the prior permission of the court save where that is precluded by urgency, and in such a case of urgency requires subsequent court review of the TPIM, has a built in procedure for review with the individual present, imposes a requirement of continuous review by the Secretary of State throughout the duration of the TPIM, requires the Secretary of State to prepare and lay before Parliament three monthly reports on the exercise of the TPIM powers, provides for an independent reviewer of the operation of the TPIM Act, limits the duration of the TPIM Act itself, and requires personal service of the TPIM notice on the individual before it becomes binding.

By contrast, none of those conditions and protections applies to the exercise of the prerogative powers described in the WMS. Mr Beard drew particular attention in this regard to the following passages in the WMS:

“The decision to refuse or to withdraw a passport under the public interest criteria will be used only sparingly. The exercise of this criteria will be subject to careful consideration of a person’s past, present or proposed activities. …

A person may be prevented from benefitting from the possession of a passport if the Home Secretary is satisfied that it is in the public interest to do so. This may be the case where:

• …

• a person whose past, present or proposed activities, actual or suspected, are believed by the Home Secretary to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest.

• There may be circumstances in which the application of legislative powers is not appropriate to the individual applicant but there is a need to restrict the ability of a person to travel abroad.”

In support of his submission that it is inconceivable that Parliament would have contemplated the continuation, after enactment of the TPIM Act, of (what he depicted as) such a broad, vague and largely unconstrained prerogative power, Mr Beard cited the following passage from the judgment of Roskill LJ in Laker Airways (at p. 722).

“Is it to be said that notwithstanding the absence of any express reference in the Act to the Bermuda Agreement as such or to designation or to withdrawal of designation as such, Parliament nevertheless, having established this elaborate licensing code which section 4 permits to be overridden by direction in the circumstances there specified, also intended to leave vested in the Crown, which means the Secretary of State, an unfettered prerogative power to destroy, uncontrolled by the courts, the commercial value of that right to fly, a right which it cannot lawfully destroy under the municipal law of this country by giving the guidance in question to the Authority under section 3 and has not sought to destroy and perhaps cannot destroy by giving a direction under section 4? In short, I do not think that the Attorney-General's argument that the prerogative power and the power under the municipal law can march side by side, each operating in its own field, is right. The two powers are inextricably interwoven.”

Despite Mr Beard’s excellent submissions, we consider it is clear that there remains vested in the executive the prerogative power to cancel a passport as described in the WMS. Our reasons for that conclusion can be simply and briefly stated.

The starting point, as is common ground, is that the refusal to issue and the cancellation of a passport are conspicuously absent from the restrictions specified in paragraph 2(3) of schedule 1 to the TPIM Act. The appellants’ case depends upon establishing a necessary implication in the TPIM Act that the prerogative powers of refusal to issue and cancellation were abridged or put into abeyance by the statutory scheme. The test for such a necessary implication is a strict one. It was described in the following way by Lord Walker in R (Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax [2002] UKHL 22, [2003] 1 AC 563, at para. [45]:

“A necessary implication is not the same as a reasonable implication as was pointed out by Lord Hutton in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 481. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

The implication for which the appellants contend, however, is not merely unnecessary but it would be unreasonable.

First, it seems fanciful to suppose that Parliament simply overlooked that powers to refuse to issue and to cancel a passport existed.

Secondly, the key to their omission, and the critical respect in which they differ from the restrictions specified in paragraph 2(3)(c) and (d) – “not to possess or otherwise control or seek to obtain … [and] to surrender any travel document” – is that the specified statutory restrictions require the individual to do or to refrain from doing something. Exercise of the omitted powers, by contrast, is wholly independent of anything which the individual is willing or unwilling to do.

Thirdly, this reflects the statutory scheme under which a TPIM is a personal obligation on the individual. It is an obligation which only comes into effect when the individual has been personally served with a TPIM notice, and the consequence of a failure to comply with the obligation is the imposition of criminal sanctions against the individual. By contrast, the power to refuse to issue and to cancel a passport relates to the existence and validity of the passport itself.

Fourthly, this distinction at the same time exposes the error of depicting the travel measure and the prerogative powers as capable of achieving the same practical results in preventing or restricting the involvement of an individual in terrorism-related activity. The travel measure is only effective if it is possible to serve the individual personally and only operates from the time the TPIM notice has actually been served personally. This creates an obvious area of public risk and lack of security where, as must often be the case, an individual involved in terrorism-related activity seeks to avoid detection, whether the individual is located in this country or is located abroad.

Aside from the difficulty of effecting personal service, there is another, independent problem under the TPIM Act of restricting the activities of British nationals involved in terrorism-related activity who are abroad. There may be good security reasons for seeking to impose a travel measure on an individual even where he or she is already abroad. The TPIM Act, however, does not extend to British nationals who are located outside the United Kingdom.

Section 31(3) of the TPIM Act only defines the area within which the statutory provisions are law. It does not answer the question as to which persons and what matters fall within the operation of that law as applied by the courts in England and Wales, or Scotland, or Northern Ireland, as the case may be: see Lawson v Serco Ltd [2006] UK HL 3, [2006] ICR 250 at para. [1].

Unless the contrary intention appears, Parliament is taken to intend an Act to extend to each territory of the United Kingdom but not to any territory outside the United Kingdom, and to apply to all persons and matters within the territory to which it extends, but not to any other persons and matters: see Bennion on Statutory Interpretation (6th ed), sections 106 and 128, accepted as an accurate statement of the law by the Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643, at para. [68]. There is nothing in the TPIM Act to indicate that it or, more specifically, the travel measure could apply to British nationals who are abroad. Indeed, the indications are to the contrary. The primary form of the travel measure in paragraph 2 of schedule 1 to the TPIM Act is directed to restricting travel within the UK or to restrict leaving the UK.

Those areas of security risk resulting from the inability to serve a TPIM notice on a UK passport holder personally would be alleviated by, and can only be alleviated by, exercise of the prerogative power to cancel the individual’s passport wherever the individual may be. It seems highly unlikely that Parliament would have intended to increase the risk to public security by abolishing the power to cancel passports in such circumstances without any express provision to that effect; and particularly unlikely in a statute which creates a new and wide-ranging suite of anti-terrorism powers.

Fifthly, the difficulty of finding the necessary statutory implication, for which the appellants contend, is highlighted by the ambivalence which Mr Beard appeared to show as to whether the implication is that the relevant prerogative powers have, on the one hand, been abridged or placed in abeyance, or, on the other hand, have become exercisable only subject to the same conditions and with the same protections as other TPIMs. At times, in his oral submissions, he expressed the implication one way and, at other times, the other way and sometimes he simply put forward both possibilities without expressing any preference.

Sixthly, the fact that there are significant procedural protections for individuals in relation to TPIMs, as well as Parliamentary scrutiny and independent review, may be explained by the wide ranging and draconian nature of TPIMs, the intrusive policing powers in schedules 5 and 6 of the TPIM Act, and the significant criminal sanctions for breach of TPIMs, without any need to imply the abridgment of the prerogative powers in the confined area of cancellation of passports.

Seventhly, an individual whose passport has been cancelled is not left without remedy. Just as the prior authorisation of the court, or subsequent review by the court, of a TPIM is to be conducted on judicial review principles, so the exercise of the prerogative power to refuse to issue or to cancel a passport is subject to judicial review. It is not in dispute that the prerogative power to refuse to issue and to cancel passports continues in relation to individuals involved in a range of non-terrorism criminal and anti-social activity, and that Parliament has not deemed judicial review to be an inadequate remedy in such cases. Furthermore, while it is true that a TPIM is subject to a two-year limit, there is nothing to prevent an individual whose passport has been cancelled from applying for a new passport at any time, as was made clear to both XH and AI in the letters from the Secretary of State cancelling their passports.

A number of other points were made by Mr James Eadie QC, for the Secretary of State, but we are not satisfied they carry the matter any further. He emphasised the extent to which the TPIM Act and the royal prerogative to cancel passports do not overlap, both within and outside the area of terrorism-related activity. He went so far as to submit that there has to be a precise overlap for a necessary implication of abridgment of the royal prerogative. We do not agree. While the extent of overlap is always relevant and important, the question at the end of the day (as he accepted) is always one of statutory interpretation.

He said, as did the Divisional Court, that a realistic view of how the travel measure powers under the TPIM Act are likely to be exercised is that they would be, or normally would be, part of a collection of TPIMs applicable to an individual rather than, as in the case of exercise of the prerogative power to cancel a passport, a stand-alone single sanction. This is too uncertain a guide and, in any event, the available data are incomplete for 2015 and 2016.

Mr Eadie also relied upon paragraph 3(2) of schedule 8 to the Anti-Social Behaviour, Crime and Policing Act 2014, which refers to the cancellation of a passport on the ground that the person to whom it was issued has been, or may have been or will or may become, involved in activities so undesirable that it is contrary to the public interest for the person to have access to passport facilities. He submitted that that Act is in pari materia to the TPIM Act, that it supports the distinction between the travel measure under the TPIM Act and cancellation of a passport pursuant to the royal prerogative, and that it is not an accident that it uses the language of cancellation. We do not consider that the 2014 Act is in pari materia or is of any assistance since it is addressing the wider categories of anti-social behaviour and crime rather than terrorism.

For the reasons we have given, we would dismiss this ground of appeal.

For the sake of completeness, it should be mentioned that in AI’s skeleton argument it is contended that, even if the royal prerogative powers relied upon by the Secretary of State in these proceedings still exist, “it will be abusive and/or necessarily disproportionate” for the Secretary of State by use of those powers to achieve the same effect as exercise of the powers under the TPIM Act. This alternative line of argument was not developed by Mr Beard in his oral submissions. In any event, for the same reasons we have given as to why there is no necessary implication of ouster or abridgment of the prerogative power to cancel a passport, there can be no case that exercise of that power would always be abusive when deployed to prevent or restrict the involvement of an individual in terrorism-related activity. Mr Southey, on behalf of XH and in the context of the EU grounds, advanced a proportionality argument based on the availability of a travel measure.  That argument is addressed in paragraph 117 below.

Discussion: the EU law grounds of appeal

On behalf of XH it is submitted that the decision to cancel his passport infringes his EU law rights because it is disproportionate and because there were insufficient procedural safeguards.

It is common ground that EU law is engaged. The decision of the Secretary of State to cancel XH’s passport will undoubtedly restrict his freedom of movement within the EU. We note that it is not an absolute prohibition on travel outside the United Kingdom and that the letter of 3 May 2016 states that if there are compelling circumstances requiring him to travel within the EU and if the risk to national security could be adequately managed, it may be possible to consider issuing a single-use travel document. This may be a relevant consideration in the context of justification. Nevertheless, the cancellation of his passport is undoubtedly, and is intended to be, a substantial interference with XH’s freedom of movement. (See generally, MR v. Secretary of State for the Home Department [2016] EWHC 1622 (Admin) per Ouseley J. at [15] – [17]; Case C-430/10 Gaydarov, unreported, 17 November 2011.)

Recital (2) to the Directive provides:

“Whereas …

(2)

The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.”

Article 4 makes provision for right of exit and Article 5 for right of entry.

The issues arising may conveniently be considered under the following headings:

Proportionality

In the judicial review proceedings and on this appeal XH challenges the proportionality of the particular decision to cancel his passport of which he was informed by letter dated 29 April 2014. Nevertheless, at the oral hearing of the appeal Mr. Southey addressed us at some length on the subject of the proportionality of the WMS, the statement of policy relating to the exercise of the prerogative power. Neither in his grounds for judicial review nor in his grounds of appeal does XH challenge the proportionality of the WMS itself. There has been no application to quash the policy stated in the WMS. This is not, therefore, a case in which it is maintained that the policy should be quashed as a misleading statement of the true legal position. In these circumstances, what matters for present purposes is whether the specific decision to cancel XH’s passport was in accordance with the Directive.

Nevertheless, even if there had been a challenge to the policy stated in the WMS, we would have concluded that the WMS is in accordance with the provisions of the Directive. The Directive provides that measures taken on grounds of public policy or public security shall comply with the principle of proportionality and must be based exclusively on the personal conduct of the person concerned. The WMS complies with these requirements. It provides that a decision to refuse or withdraw a passport must be necessary and proportionate and that a decision to refuse or withdraw a passport under the public interest criteria will be used only sparingly. It also provides that the exercise of these criteria will be subject to careful consideration of a person’s past, present or proposed activities.

Mr. Southey submits that in one respect the WMS sets a standard which is lower than that required by Article 27(2). He points to the statement that a passport may be refused or withdrawn in the case of a person whose past, present or proposed activities, actual or suspected, are believed by the Secretary of State to be so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. He says this is on its face disproportionate and he submits that the WMS would permit the withdrawal of a passport on the basis of a suspicion as to conduct. It is said that this sets the bar too low. However, this provision must be considered in the context of the provisions of the WMS which are referred to above. Furthermore, we are here concerned with the evaluation of future risk, in particular the likelihood of a person engaging in future in terrorism-related activities. The words of the second paragraph of 27(2) – a genuine, present and sufficiently serious threat – require an assessment of the likelihood of the risk materialising. The degree of likelihood will be a matter for consideration in each case.

Having come to the conclusion on ordinary interpretative principles that the policy stated in the WMS conforms with the requirements of the Directive, it is not necessary to consider whether any challenge to the legality of the policy might be answered by the application to the interpretation of the WMS of a principle of interpretation analogous to that in Case C-106/89 Marleasing [1990] ECR I-4135.

Turning to the decision to cancel the passport, Mr. Southey draws attention to the statement of the ECJ in Case C-33/07 Ministerul Administratiei si Internelor Directia Generala de Pasapoarte Bucuresti v. Jipa [2008] 3 CMLR 23 at [23] that while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, the requirements justifying derogation from the fundamental principle of free movement of persons must be interpreted strictly. In particular, the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat to one of the fundamental interests of society. He submits, by reference inter alia to Pham v. Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591, that because a fundamental right is in issue there needs to be powerful justification even where national security is in issue.

We accept that the fundamental nature of the rights involved in the present case gives rise to a need for a strong justification for any interference. However, we consider that such a justification is clearly made out here. The grounds relied on by the Secretary of State demonstrate a genuine, present and sufficiently serious threat to a vital national interest. In particular, we agree with the conclusion of the Divisional Court that it is readily apparent from the letters setting out the reasons of the Secretary of State that the decision to cancel XH’s passport was based exclusively on his personal conduct and was made for national security reasons. The first letter, dated 29 April 2014, gives as the reason for the cancellation of the passport that XH is involved in terrorism-related activity and the assessment that he is likely to travel overseas in the future in order to engage in further terrorism-related activity. Similarly, the letter of 3 May 2016, providing the open gist of the evidence on which the Secretary of State relies, states that “the Claimant is an Islamic extremist”. It states that he “may have maintained contact with associates assessed to be located in Syria where they are involved in Islamist extremist activities, including fighting”. It states that he has “repeatedly expressed a desire to travel overseas to participate in Islamist extremist activities”. It states that “he has been involved in activities in tangible and practical support of Syria-based Islamist extremist associates”. It maintains that “the detail set out in the submission shows that the Claimant is intending to travel overseas to engage in terrorist related activity, likely to be related to Syria.” In this regard we also note that a margin of appreciation is accorded to Member States in assessing their needs of national security. (See Case 41/74 Van Duyn [1974] ECR 1337 at [18]; Case C-33/07 Jipa, supra. at [23].)

Mr. Southey then submits that the use of the prerogative power to cancel XH’s passport is in any event disproportionate because the objective could have been achieved in an equally effective manner by making a TPIM which would have been accompanied by safeguards absent from the exercise of the prerogative power. The short answer to this submission is that a TPIM would not have been equally effective. In particular, a TPIM would necessarily be limited in duration to a period of 2 years and could not be renewed in the absence of evidence of new terrorism-related activity (sections 2(1), 3(2) and 3(6) of the TPIM Act).

On behalf of the Secretary of State Mr. Eadie submits that the cancellation of XH’s passport does not impose an absolute prohibition on his freedom of movement within the EU. First, he points out that the cancellation of his passport, by itself, does not as a matter of law prevent him from leaving the United Kingdom to travel to another Member State. (Here he draws attention to Article 5(4) of the Directive.) Secondly, he says that it is open to XH to apply to the Secretary of State for an alternative travel document if there are compelling circumstances requiring travel within the EU, which could be limited to travel to a specified location. We do not attach any significant weight to these considerations in this context. As stated above, the whole purpose of the cancellation of the passport is to prevent XH from leaving the United Kingdom. The interference with XH’s freedom of movement in the EU, if not absolute, is near absolute. A compelling justification is required for such interference.

Nevertheless, for the reasons set out above, we agree with the Divisional Court that the decision to cancel XH’s passport was a proportionate restriction on freedom of movement which is in accordance with both domestic law and EU law.

Sufficient basis

In the course of his submissions on proportionality, Mr. Southey raised a linked issue, namely the alleged lack of a sufficient basis for the decision withdrawing XH’s passport. Although this is not addressed expressly in the judgment of the Divisional Court, it is clear that this formed one of the grounds on which judicial review was sought by the time the application was heard. (Although it was not in the original grounds, paragraph 17 of the amended grounds dated 31 May 2016 contends that there is no substance in the allegations in that it had not been established that there had been the personal conduct required in order to comply with Article 27(2): see above.)

On the first morning of the hearing of the appeal, it was a theme of Mr. Southey’s submissions that either there had been inadequate disclosure or there was no satisfactory basis for the decision. With regard to the latter he submitted that as a matter of EU law it was necessary for the court to satisfy itself that there was a satisfactory basis for the decision. He also submitted that there were insufficient facts before the Divisional Court to enable it to perform its function of assessing proportionality.

In this regard he relied in particular on Joined Cases C-584/10 P, C-593/10 P and C-595/10 P EU Council v. Kadi where the CJEU stated (at [119]):

“ The effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person in Annex I to Regulation No 881/2002 (the Kadi judgment, paragraph 336), the Courts of the European Union are to ensure that that decision, which affects that person individually (see, to that effect, judgment of 23 April 2013 in Joined Cases C-478/11 P to C-482/11 P Gbagbo and Others v Council, paragraph 56), is taken on a sufficiently solid factual basis (see, to that effect, Al-Aqsa v Council and Netherlands v Al-Aqsa, paragraph 68). That entails a verification of the factual allegations in the summary of reasons underpinning that decision (see to that effect, E and F, paragraph 57), with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.”

Kadi was concerned with a challenge to the decision of the European Council to add Mr. Kadi’s name to the list in Annex 1 to Council Regulation (EC) 881/2002 imposing restrictive measures against individuals. The observations of the CJEU must therefore be read in that context. Furthermore, the question whether a reviewing court must itself undertake a fact-finding role is considered subsequently. However, for present purposes we would readily accept that consideration of whether a decision is properly founded is an element of review both on the basis of proportionality in EU law and on the basis of Wednesbury unreasonableness in domestic law.

During Mr. Southey’s submissions it became apparent that his submission that either there had been inadequate disclosure or there was no satisfactory basis for the decision reflected his understanding that there was no material before the Divisional Court in the closed hearing beyond the open gist and port records disclosed on 3 May 2016. However, as mentioned at paragraph [20] above, at that point the court was informed in an open hearing of the following matters:

In our view, the Divisional Court should have made these matters clear in its judgment. We are, however, satisfied that the Divisional Court was in possession of sufficient material to permit a proper assessment of proportionality, that it did in fact consider the matter in the light of all the material before it and that it concluded that there was a sufficient basis for the decision. Furthermore, it is now established that the special advocates accepted in the light of the material considered by the court that they could not challenge the substance of the Secretary of State’s decision on proportionality or rationality grounds. In these circumstances, there is no basis on which the Divisional Court’s conclusion on this point can be challenged. No purpose would be served by remitting the matter to the Divisional Court for it to make a formal decision on the point.

Disclosure

Article 30 of the Directive imposes a duty to inform the persons concerned, “precisely and in full”, of the public security grounds on which the decision to restrict freedom of movement in their case is based, “unless this is contrary to the interests of State security”. On behalf of XH, Mr. Southey complains that in breach of this provision insufficient particulars of the allegations which are said to justify the decision were disclosed to XH and that, as a result, he has been hampered in his ability to respond to the allegations.

In Case C-300/11 ZZ (France) v. Secretary of State for the Home Department the CJEU considered the extent of the obligation under Article 30. It stated that the fundamental right to an effective legal remedy would be infringed if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to express their views. It continued at [57]:

“However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person’s procedural rights, such as the right to be heard and the adversarial principle (see, by analogy, Kadi and Al Barakaat International Foundation v Council and Commission, paragraph 344).”

It addressed (at [64]) the appropriate course in circumstances where state security stands in the way of disclosure of the grounds of decision to the person concerned. It considered that judicial review must be carried out in a procedure which strikes an appropriate balance between the requirements flowing from state security and the requirements of the right to effective judicial protection whilst limiting any interference with the exercise of that right to that which is strictly necessary. It then drew a distinction between the grounds on which a decision is based and the evidence underlying the grounds:

“65 In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that directive ineffective.

66      Second, the weighing up of the right to effective judicial protection against the necessity to protect the security of the Member State concerned – upon which the conclusion set out in the preceding paragraph of the present judgment is founded – is not applicable in the same way to the evidence underlying the grounds that is adduced before the national court with jurisdiction. In certain cases, disclosure of that evidence is liable to compromise State security in a direct and specific manner, in that it may, in particular, endanger the life, health or freedom of persons or reveal the methods of investigation specifically used by the national security authorities and thus seriously impede, or even prevent, future performance of the tasks of those authorities.

…

68      Accordingly, it is incumbent upon the national court with jurisdiction, first, to ensure that the person concerned is informed of the essence of the grounds which constitute the basis of the decision in question in a manner which takes due account of the necessary confidentiality of the evidence and, second, to draw, pursuant to national law, the appropriate conclusions from any failure to comply with that obligation to inform him.

69      In the light of the foregoing considerations, the answer to the question referred is that Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.

In ZZ (France) v. Secretary of State for the Home Department (No. 2) [2014] EWCA Civ 7; [2014] QB 820 Richards LJ, in a judgment with which Lord Dyson MR and Christopher Clarke LJ agreed, considered the effect of the passages in ZZ (France) cited above:

“24 It is important to recall that para 65 is concerned with disclosure of the grounds on which the decision was based. The judgment moves on to consider the question of disclosure of the related evidence. It states in para 66 that the weighing up of the right to effective judicial protection against the necessity to protect national security, on which the conclusion set out in para 65 is founded, “is not applicable in the same way to the evidence underlying the grounds”. Thus, although the essence of the grounds must be disclosed, the related evidence may be withheld from disclosure for reasons of national security.

25 This leads the court to state in para 68 that the national court must “ensure that the person concerned is informed of the essence of the grounds … in a manner which takes due account of the necessary confidentiality of the evidence”. That still makes clear that the essence of the grounds must be disclosed but provides that the manner of disclosure must take “due account” of the necessary confidentiality of the evidence, that is to say it must protect the confidentiality of evidence disclosure of which would be contrary to national security. The court does not state in terms what is to happen if the essence of the grounds cannot be disclosed without at the same time disclosing such confidential evidence. To my mind, however, the position in that event is clear from what the court does say: the essence of the grounds must still be disclosed. The qualifying words relate to the manner of disclosure of the essence of the grounds; they do not affect the extent to which the grounds must be disclosed.

26 The conclusion in para 69 and the formal ruling at the end of the judgment simply pick up what has gone before. For the reasons already given, the national court must ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which the decision was based and to disclose the related evidence to him is limited to that which is strictly necessary “and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence”. Again, the minimum requirement is to inform him of the essence of the grounds; and whilst the manner in which that is done must take due account of the necessary confidentiality of the evidence, there is still no suggestion that the need to protect the confidentiality of the evidence is capable of justifying non-disclosure of the essence of the grounds” (emphasis in original).

Later in his judgment Richards LJ stated that he did not think it necessary to elaborate on what is required by way of disclosure of “the essence” of the grounds. In his view the application of the concept was highly fact-specific.

Mr. Southey also sought to rely in this regard on certain passages in the decision of the Court of Justice in Joined Cases C-584/10P, C-593/10 P and C-595/10 P European Commission v. Kadi [2014] All ER (EC) 123 (“Kadi No. 2”). The same submission had been made by Mr. Southey in ZZ (France) (No. 2) and rejected by Richards LJ (at [29]) who observed that although the judgment in Kadi (No. 2) makes extensive cross-reference to the principles set out in ZZ (France) it does not deal with the specific question answered in ZZ (France) which did not arise in Kadi and it did not seem to him to cast any real light on the meaning of the court’s answer to that question. We agree.

The effect of ZZ (France) is, therefore, that disclosure “precisely and in full” is required of the grounds which found the basis of the decision, whereas the obligation to disclose the related evidence is limited to that which is strictly necessary. The person concerned must be informed, in any event, of the essence of the grounds. It seems to us that these distinctions may on occasion be difficult to apply in practice, not least because the effectiveness of disclosure may depend on the level of generality with which grounds are stated. It does appear, however, as Richards LJ observed in ZZ (France) (No. 2), that the application of these principles will be highly fact specific.

In the present case, the initial reasons for the decision to cancel the passport given in the decision letter of 29 April 2014 were supplemented by further reasons in a letter dated 16 February 2015. The text is set out at paragraph [12] above. That letter repeated the general allegation that XH was a British national involved in terrorism-related activity and made for the first time the further general allegation that he was assessed to be an Islamist extremist. However, it included the more specific allegations that XH had been in possession of media concerning anti-American and Israeli propaganda and video clips in support of jihad and violence and that he may have maintained contact with associates assessed to be located in Syria where they were engaged in Islamist extremist activities. It repeated the allegation that he was likely to travel overseas in order to engage in further terrorism-related activities.

This was followed on 3 May 2016 by a revised open gist of the evidence on which the Secretary of State relies. The text is set out at paragraph [14] above. In addition to repeating the general allegation that XH is an Islamist extremist, this document draws attention to three more specific matters: (1) XH may have maintained contact with associates assessed to be located in Syria where they are engaged in Islamist extremist activities, including fighting; (2) he has repeatedly expressed a desire to travel overseas to participate in Islamist extremist activities; and (3) he has been involved in activities in tangible and practical support of Syria-based extremist associates. On the same day the Secretary of State disclosed to XH the port stop records.

The material on which the Secretary of State relied in taking her decision was considered by the special advocates. Their obligations included testing in the closed procedure whether there was any information in closed which should be disclosed to XH and his advisers because it did not attract public interest immunity and examining whether the essence of the grounds had been disclosed. In its judgment the Divisional Court recorded (at [95]) that “the Special Advocates confirmed that no further disclosure issues remained in respect of ZZ (France)”. We take this, as evidently did the Divisional Court, to be confirmation by the special advocates that there was no further information which could, consistently with the public interest, be disclosed to XH and his advisers, and that the essence of the case against him had been disclosed so as to conform with the requirements of ZZ (France). As we have explained, the Divisional Court had also reviewed the closed evidence itself and was in a position to check that the position adopted by the special advocates was appropriate. In these circumstances, the Divisional Court came to its own conclusion that the Secretary of State had complied with her disclosure requirements. We agree and can see no basis on which this conclusion can be challenged.

Fact finding

It is submitted on behalf of XH that Article 31(3) of the Directive, when read in conjunction with Article 47 of the Charter, requires the procedure adopted by the reviewing court to include a process of fact finding. Mr. Southey submits that the application of Article 47 implies the need for a tribunal of “full jurisdiction” to determine the legality of the cancellation of XH’s passport. In support of the argument that conventional judicial review is insufficient in this context he submits that there are no safeguards of independence in the exercise of the prerogative power by the Secretary of State. He further submits that a number of factual findings are clearly required in order to determine whether the decision challenged is proportionate.

Article 47 of the Charter provides in relevant part:

“Article 47. Right to an effective remedy and to a fair trial.

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

…”

Article 47 corresponds to Article 6 ECHR and it is, accordingly, appropriate to have regard to the relevant ECHR jurisprudence in this regard.

Article 31(1) of the Directive requires access to be provided to “judicial and, where appropriate, administrative redress procedures … to appeal against or seek review of any decision …” On its face this suggests that a review may be an appropriate redress procedure and that a full appeal procedure is not required. Similarly, the requirement in Article 31(3) that “[t]he redress procedures shall allow for an examination of the legality of the decision, as well as the facts and circumstances on which the proposed measure is based” does not suggest that a full fact-finding role is required of the reviewing court or tribunal. It is possible to examine the facts on which a measure is based without undertaking a primary fact-finding exercise.

So far as the case law on Article 6 ECHR is concerned, Mr. Southey takes as his starting point the following observation of Baroness Hale in R (Wright) v. Secretary of State for Health [2009] UKHL 3; [2009] 1 AC 739 at [23]:

“The difficult question is how the requirements of article 6 apply in cases such as this. It is a well-known principle that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction”: Bryan v United Kingdom (1995) 21 EHRR 342 , applied domestically in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 and Runa Begum v Tower Hamlets London Borough Council (First Secretary of State intervening) [2003] 2 AC 430 . What amounts to “full jurisdiction” varies according to the nature of the decision being made. It does not always require access to a court or tribunal even for the determination of disputed issues of fact. Much depends upon the subject matter of the decision and the quality of the initial decision-making process. If there is a “classic exercise of administrative discretion”, even though determinative of civil rights and obligations, and there are a number of safeguards to ensure that the procedure is in fact both fair and impartial, then judicial review may be adequate to supply the necessary access to a court, even if there is no jurisdiction to examine the factual merits of the case. The planning system is a classic example (Alconbury); so too, it has been held, is the allocation of “suitable” housing to the homeless (Runa Begum); but allowing councillors to decide whether there was a good excuse for a late claim to housing benefit was not: Tsfayo v United Kingdom (2006) 48 EHRR 457.”

He submits that the fact that the exercise of the prerogative power to cancel a passport is not accompanied by procedural safeguards to ensure that the procedure is both fair and impartial is a strong indication that the reviewing court or tribunal should undertake a fact-finding role.

Mr. Southey also relies, in this regard, on Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140 which concerned a control order made under the Prevention of Terrorism Act 2005. Section 3(10)(a) required the court to consider whether the decision of the Secretary of State that there were reasonable grounds for suspecting that the subject of the order was involved in terrorism-related activity was flawed. At first instance, Sullivan J. held that Article 6 required that the court should carry out a “full merits review” of the justification for the control order and its terms but that, applying judicial review principles, the court was not able to engage in a merits review under section 3(10). Accordingly, he granted a declaration that the procedures in section 3 relating to the court’s supervision of control orders were incompatible with the right to a fair hearing under Article 6. The Court of Appeal, allowing the appeal, considered that the terms of section 3(10) when read in the light of section 11(2) did not restrict the court to a standard of review that fell short of that required by Article 6. It pointed out (at [48]) that a court conducting a judicial review had all the powers it required, including the power to hear oral evidence and to order cross-examination of witnesses, to enable it to substitute its own judgment for that of the decision maker, if that is what Article 6 requires. The Court of Appeal went on to express the view that when reviewing the decision to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion. That is an objective question of fact. The court could not review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting involvement in terrorism-related activity (at [58]-[59]).

It seems to us that MB does not provide any support for Mr. Southey’s submission that a full fact-finding exercise is the only appropriate standard of review in the present circumstances. We also note, as did the Divisional Court in the present case, that the court in MB was concerned with the particular wording of the statute under consideration there.

In Tsfayo v. United Kingdom (2009) 48 EHRR 18 the Housing Benefit and Council Tax Benefit Review Board (HBRB) of a local authority was required to decide whether T had a good excuse for a late claim to housing benefit. The members of the HBRB rejected her claim for back-payment of benefit essentially on the basis of their assessment of her credibility. The Strasbourg court concluded that the lack of any jurisdiction in the High Court to rehear the evidence or to substitute its own view as to the applicant’s credibility was an infringement of Article 6(1). In coming to this conclusion it placed particular emphasis on two matters. First, it noted that the decision-making process was concerned solely with a simple question of fact which did not require a measure of professional knowledge or experience or the exercise of administrative discretion pursuant to wider policy aims. Furthermore, the factual findings could not be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for a democratically accountable authority to take. Secondly, the HBRB was not merely lacking in independence from the executive but was directly connected to one of the parties to the dispute, as it included five councillors from the local authority which would be required to pay the benefit if awarded. The safeguards built into the HBRB procedure were not adequate to overcome this fundamental lack of objective impartiality. Mr. Southey submits that in the present case the fact that the Secretary of State is the decision maker and what he says is the absence of safeguards against unfairness equally require that the court should exercise a fact-finding role on a review.

Tsfayo must be contrasted, however, with Runa Begum v. Tower Hamlets LBC [2003] UKHL 5; [2003] 2 AC 430 and with Ali v. Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39 in which Tsfayo was distinguished.

Runa Begum concerned a determination by a local authority officer, following an internal review, that an offer of accommodation to the homeless applicant was suitable and that her refusal had been unreasonable. On an appeal to the county court under section 204 of the Housing Act 1996, the County Court judge held that the authority’s failure to direct a review by an independent body rather than conducting a final review by its own officer, contravened the claimant’s right to a fair determination of her civil rights under Article 6. The judge’s order was reversed by the Court of Appeal which was upheld by the House of Lords. Notwithstanding the fact that the decision had not been taken by a body clothed with the independence and impartiality required by a judicial tribunal, Lord Bingham (at [11]) found compelling support in the Strasbourg jurisprudence for the conclusion that, in such a context, the absence of a full fact-finding jurisdiction in the tribunal to which appeal lies does not disqualify that tribunal for the purposes of Article 6(1). One of the matters which Lord Bingham considered particularly pertinent in this regard (at [9(2)]) was that although the authority may have to resolve disputed factual issues, its factual findings would only be staging posts on the way to the much broader judgments which the authority had to make. (See also Lord Millett at [105]-[106].)

In Ali v. Birmingham City Council each of the applicants rejected an offer of accommodation and asserted that she had not received a letter advising her that, if she rejected accommodation without good cause, the Council would consider its duty under the Housing Act 1996 discharged. On statutory reviews by local authority reviewing officers they found that letters had been sent to the applicants and that the duties of the Council were discharged. Appeals to the County Court under section 204 of the Act were rejected on the ground that whether or not the letters had been received was a matter of fact for determination by the reviewing officer. The Supreme Court considered that the lack of a full fact-finding jurisdiction in the County Court did not deprive the applicants of a hearing before an independent and impartial tribunal as required by Article 6 ECHR. Lord Hope observed (at [54]):

“The way the reviewing officers approached their task in these cases shows very clearly how the scheme works in practice. For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation's suitability. It was, as Lord Bingham put it in Runa Begum's case [2003] 2 AC 430, para 9(2), a staging post on the way to the much broader judgment that had to be made. These cases are quite different from Tsfayo's case, 48 EHRR 457, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum's case should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).”

The decision in Ali was upheld by the Strasbourg court in Ali v. United Kingdom [2015] HLR 46. In its judgment the court stated:

“76.

Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it. See, amongst many authorities, Zumtobel v Austria (1994) 17 EHRR 116 at [31]–[32]; Bryan v United Kingdom (1996) 21 EHRR 342 at [43]–[47]; Muller v Austria (26507/95) 23 November 1999; and Crompton v United Kingdom (2010) 50 EHRR 36 at [71] and [79].

77.

In adopting this approach the Convention organs have had regard to the fact that in administrative-law appeals in the Member States of the Council of Europe it is often the case that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings rather than taking factual decisions. It can be derived from the relevant case-law that it is not the role of art.6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law. For example, planning– Zumtobel (1994) 17 E.H.R.R. 116 at [31] and [32], and Bryan (1995) 21 EHRR 342 at [47]; environmental protection— Alatulkkila v Finland (2006) 43 EHRR 34 at [52]; regulation of gaming— Kingsley v United Kingdom (2002) 35 EHRR 10 .”

The Strasbourg court also described (at [83]) the features of conventional judicial review in this jurisdiction and it expressed the conclusion (at [85]) that in the particular circumstances of that case Article 6(1) could not be read as requiring that judicial review should encompass a reopening with a rehearing of witnesses. However, the availability of judicial review was only one factor which the court took into account in coming to that conclusion. It made clear that it was influenced by a number of other factors including the procedural safeguards applying to the enquiry before the homelessness review officer (at [82]), the discretionary as opposed to technical nature of the subject matter of the decision (at [84]), the particular issue which the applicant wished to ventilate (at [84]) and the nature and purpose of the legislative scheme, which was a welfare scheme covering a multitude of small cases and intended to bring as great a benefit as possible to needy persons in an economical and fair manner (at [85]).

In determining what standard of review is required by Article 6 it is necessary to assess the nature of the administrative decision and the nature of the exercise which the reviewing court or tribunal is called upon to perform in each particular case. We agree with the Divisional Court that the present case falls clearly on the same side of the line as Begum and Ali as opposed to the Tsfayo side of the line. The decision is one which requires the exercise of judgment and a particular expertise. While factual decisions are required to be made they are, in Lord Bingham’s phrase “staging posts on the way to the much broader judgments which the authority had to make.” In making her decision the Secretary of State is obliged under domestic public law to act fairly, and the court on judicial review can quash her decision if she does not. Of course, what fairness requires in relation to disclosure may be affected by the national security context, just as it is under EU law. Conventional judicial review is a flexible remedy which can extend to investigation of the factual basis of a decision, where appropriate, without assuming an independent fact finding role. We are satisfied that the adherence of the Divisional Court to conventional standards of judicial review met the needs of this particular case and that it did not result in a breach of the Directive, of Article 6 of the ECHR or of Article 47 of the Charter.

Article 41 of the Charter

Article 41 of the Charter provides in relevant part:

“Article 41. Right to good administration.

1.

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

2.

This right includes:

(a)

The right of every person to be heard before any individual measure which would affect him or her adversely is taken; …”

On the basis of this provision Mr. Southey submits that fairness required that XH should have been heard before the Secretary of State exercised the power under the prerogative to cancel his passport.

The first point to be made in respect of this ground is that Article 41 is concerned with the right to good administration by institutions, bodies, offices and agencies of the EU. It is far from clear that it has any application to the facts of XH’s case. However, for present purposes we are prepared to assume, without deciding the point, that it embodies a general principle of EU law of good administration which must be followed by Member States. (See generally, Joined Cases C-141/12 and C 372/12 YS v. Minister voor Immigratie, Intergratie en Asiel [2015] 1 WLR 609 at [67] and [68].) Moreover, there is undoubtedly a fundamental principle of EU law requiring the observance of the rights of the defence. In Case C-277/11 MM v. Minister of Justice, Equality and Law Reform ECLI:EU:C:2012:744, Judgment of 22 November 2012, the CJEU affirmed (at [85]) “the importance of the right to be heard and its very broad scope in the EU legal order, considering that the right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person.”

In circumstances where a person is considered by the Secretary of State to be involved in terrorism-related activity and likely to travel overseas in order to engage in such activity, a requirement that he must be given advance notice of a decision to cancel his passport in order to enable him to make submissions gives rise to obvious practical concerns. There would, in such circumstances, be a real risk that the giving of advance notice would undermine the purpose of cancelling the passport. It cannot be the case that requirements of good administration in EU law require advance notice of the Secretary of State’s intention in all such cases.

This difficulty is recognised by Mr. Southey who, nevertheless, submits that effect can be given to the principle of good administration and fairness by withdrawing a passport initially only on a provisional basis. Before us, Mr. Eadie questioned whether the Secretary of State would have the power to make such an order. It seems to us that the prerogative power would, at least, extend to the temporary withdrawal of a passport. Indeed, we understand that this is what occurs in cases where a person is repatriated at public expense and has subsequently failed to reimburse the Government for the cost. However, the temporary withdrawal advocated by Mr. Southey would, in our view, still involve a restriction on the right of free movement without a prior hearing.

Mr Southey’s proposal in substance reflects what the Secretary of State has done in the present case. Following cancellation of XH’s passport she has given reasons for that action and XH has been in a position to make representations to seek to persuade her to change her mind and either revoke the cancellation or issue him with a fresh passport. He has also been able to challenge her decision in judicial review proceedings. Therefore, we do not consider that Article 41 and the general principles of EU law referred to above have been violated by the Secretary of State in this case.

Furthermore, a fundamental objection to Mr. Southey’s submission is raised by Nicol J. in his judgment in R (AZ) v. Secretary of State for the Home Department [2016] 4 WLR 12 at para. [46]:

“As I have noted above, part of Mr Southey's submissions as to the disclosure which should have been made to the claimant prior to the refusal of a travel document, was dependent on him making good the other procedural ground of challenge. In short, he argued, if the claimant is entitled to further information as to the SSHD's national security case as part of his right to an effective judicial challenge, that further detail should have been supplied in advance of the administrative decision-making. I am about to turn to consider that second procedural challenge now, but for the reasons which I give, it is not successful. Accordingly, it can give the claimant no further support for this first procedural challenge. In my judgment, on the contrary, it further undermines the first procedural challenge. If, as I conclude, the SSHD is entitled to withhold material whose disclosure would harm the interests of national security from the claimant in the course of this litigation, it would be illogical if she was obliged to disclose that same information to the claimant in advance of taking the decision. Fayed demonstrates that the common law does not require such a conclusion. Article 41 allows the EU institutions to withhold access to the file if this is necessary to respect the legitimate interests of confidentiality and of professional and business secrecy. I agree with Mr Blake that, so far as article 41 embodies a general principle of good administration that must be followed by member states, they must likewise be permitted to withhold disclosure which would harm national security.”

In circumstances where there are national security objections to giving advance notice and to provision of detailed information to the person affected by the decision, of a kind which would justify adoption of a closed procedure in any court proceedings to challenge that decision, we consider that the same national security objections qualify the ordinary principles of good administration and observance of the rights of defence in the administrative process in a similar way. In the particular circumstances of this case we are satisfied that the failure to afford XH an opportunity to make representations before his passport was cancelled is not an infringement of his rights in EU law or in domestic law. Allowing XH to make representations before reconsideration was, in our view, sufficient to satisfy the right to good administration and the observance of the rights of the defence.

Refusal of permission to appeal on the LPP ground and the costs ground

XH applied for permission to appeal on this ground, permission having been refused by the Divisional Court.

Mr. Lams, who presented the argument on this application on behalf of XH, submitted that litigation in the Investigatory Powers Tribunal (“the IPT”) in Belhaj v. Security Service [2015] UK Trib 13, 132H, Judgment of 13 March 2015, resulted in disclosure of security service policies and internal guidance concerned with the treatment of material subject to LPP. In that case Burton P. granted a declaration recording the concession on behalf of the respondents that, from January 2010, their regime for interception and obtaining, analysis, use, disclosure and destruction of legally privileged material had not been in accordance with the law for the purposes of Article 8(2) of the ECHR. Mr. Lams submitted that it demonstrated that material subject to LPP could be used for operational purposes. As a result, he submitted, no fair hearing is possible in the present case unless and until there are proper safeguards in place to ensure that XH has confidence that he can communicate with his lawyers without the communications being used by the security services. Mr. Lams made clear in his oral submissions that XH is not alleging that any material or information protected by LPP has been obtained in this case. (This had been an allegation at the hearing below which the Divisional Court at para. [134] had found to be speculative and unsupported by any evidence; and the court was in a position to confirm in closed hearing whether this was a correct basis for its analysis). Rather, Mr Lams submitted that the failure to safeguard LPP undermines fairness because of the potential chilling effect on that relationship. He further submitted that the absence of a fair procedure renders the decision unlawful.

The appropriate tribunal to hear a direct challenge based on whether proper or sufficient safeguards are in place is the IPT: see section 65(2)(a) of the Regulation of Investigatory Powers Act 2000. However, we consider that in an appropriate case the High Court would undoubtedly have jurisdiction to address submissions alleging an abuse of its process or any direct interference with the rights of the defence in EU law arising from a breach of LPP: see ZZ v. Secretary of State for the Home Department, SIAC, 14 November 2014, at [30]–[33].

In the present case, however, we consider that the complaint on behalf of XH is groundless. It is not suggested that there has in fact been any violation of LPP. Furthermore, no evidence has been produced in support of the claim that the relationship of XH and his legal advisers was subject to any chilling effect whatever. XH has not been impeded in or deterred from giving instructions to his lawyers and obtaining advice from them. In these circumstances we refused permission to appeal.

On behalf of XH it was submitted that he should be granted permission to appeal against the costs order against him made by the Divisional Court, on the ground that the existence of the closed procedure meant that XH and his legal advisers were unable to assess the strength of the case against him. In this regard reliance was placed on Begg v. HM Treasury [2016] 1 WLR 4113. We refused permission to appeal to this court. By far the greater part of the case was taken up with challenges brought by XH which were addressed in court in the open part of the proceedings before the Divisional Court (the exception being the comparatively straightforward review of the closed material by the court). XH failed before the Divisional Court on every part of his case. This included the central issue as to whether the Secretary of State was entitled to act under the prerogative and the principal issues arising from his arguments based on EU law, all of which were addressed in the open part of the proceedings. Furthermore, XH persisted in maintaining his case in relation to the proportionality and fairness of the decision cancelling his passport after the Secretary of State had made further disclosure by her letter of 3 May 2016. In these circumstances the award of costs was clearly a proper exercise of discretion by the Divisional Court.

Conclusion

For the reasons set out above, the appeals are dismissed.