AHK & Ors v Secretary of State for the Home Department

There are over forty casescurrently before the Administrative Court in which Claimants are seeking judicial review of decisions of the Secretary of State for the Home Department refusing to grant them naturalisation as British citizens under section 6 of the British Nationality Act 1981. The refusals have been on the grounds that the SSHD was not satisfied that the applicant was of good character. However, the common feature of the cases is that few or, occasionally, no reasons have been given as to why the Secretary of State was not so satisfied. She has explained that to give more reasons would be harmful to national security. Likewise, she is not willing to disclose documents upon which she relied in reaching her decisions. This judgment concerns a directions hearing which I held in four selected naturalisation cases which raised the question of whether and if so in what circumstances and with what consequences a Closed Material Procedure, CMP, could be held where issues of national security arose.

Three of these four Claimants, but not AM, plus four others, were before the Court of Appeal in R(AHK) and Others v SSHD [2009] EWCA Civ 287,[2009] 1WLR 2049. That case considered the circumstances in which it was appropriate for a Special Advocate to be appointed for the purposes of making submissions to the Court on what documents should be disclosed to the Claimants, instead of the Court considering them on its own. Subsequently, on 23 February 2010, Blake J decided after written submissions that some cases required a Specially Appointed Advocate, SAA, to assist the court in dealing with further disclosure; in others, including FM, he concluded that a sufficient gist had already been given.

In July 2010, the Supreme Court granted permission to appeal from the Court of Appeal in Al Rawi and Others v Security Service [2011] UKSC 34, [2011] 3 WLR 388. The Claimants obtained permission to amend their grounds to take such points as might advance their claims in the light of the decision in that case. I am not concerned here with the various directions aimed at making progress with at least some of the cases in the meantime. On 28 July 2011, shortly after the Supreme Court’s decision in Al Rawi, most of the naturalisation claims were stayed pending final determination of a selection of cases, chosen as representative of the range of issues arising from the whole array, with a directions hearing to be arranged to consider the issues arising out of Al Rawi. In December 2011, it became apparent that there were quite significant differences between the parties over the effect of Al Rawi, how it might relate to AHK, and to the Orders already made by Blake J. The directions hearing is intended to deal with those issues.

AHK seeks the quashing of the decision and the provision of sufficient of the reasons and information upon which the SSHD relied to give him a fair opportunity to respond to it. He was simply told that his application for naturalisation was refused because of his association with Iranian elements hostile to British national interests.

The essence of AHK’s claim is that the SSHD had acted unfairly, and in breach of Article 6 ECHR, in refusing to disclose sufficient information as to the factual basis of her decision for the Claimant to have a reasonable opportunity to make representations about it. She had failed to explain why the provision of adequate information would breach national security to the extent necessary to justify a departure from the rules of fairness. She had failed to disclose what material already in the public domain or otherwise disclosable had been taken into account, and had failed to balance the interests of the individual against the interests of the state. AHK also now raises a claim that the decision breaches Article 8 since it harms his reputation without affording him the means to counter the information which underlies it.

By amendment, AHK also claims that, in determining those issues, the court could not depart from the fundamental principle that the Claimant should see all the material before the Court, by adopting a CMP for a substantive hearing. For the purposes of judging whether Public Interest Immunity, PII, prevented disclosure, the Court could obviously see material which the Claimant did not.

AS also contends that the refusal of his application was unfair and flawed by lack of reasons; Article 8 is said to be engaged and damages are sought for negligence, misfeasance in public office and for breaches of the Human Rights Act 1998. Although he was initially told that it would be contrary to the public interest for the SSHD to give reasons for the refusal of naturalisation beyond that it had been refused on the grounds of national security, a letter of 9 January 2012 said that it had been refused because there was reason to believe that he had made “statements of an Islamist extremist nature to a number of individuals and has been involved in a range of activity for the purpose of advancing an Islamist extremist agenda”. Ms Harrison on his behalf submitted that this late and unexplained change still failed to provide adequate reasons. She emphasised that the challenge was to the failure to give adequate reasons and to comply with the duty of fairness. AS raised the same point as AHK in relation to CMP by amendment.

FM makes the same basic claim as AHK, although he also seeks, perhaps optimistically, a mandatory order requiring the SSHD to grant him naturalisation. The reasons for the refusal are no more elaborate than that he “has openly preached anti-western views and voiced sympathy with Usama Bin Laden (UBL) at the Hatherley Street Mosque in Liverpool”. He alleges that Articles 9 and 14 ECHR were breached and that the refusal constituted unlawful racial discrimination.

AM makes the same claim as AHK and AS, expressed in different language. But he has been told nothing other than that naturalisation has been refused on the grounds of character and that it would be contrary to the public interest to give reasons. His claim included the CMP issue from the outset. All have permission to apply for judicial review.

The purpose of the directions hearing, as I have said, was to decide how the cases should proceed in the light of the decision of the Supreme Court in Al Rawi. These four cases were selected as representative of those challenging naturalisation decisions, in which the SSHD defends the adequacy of the reasons for the decisions, and resists further disclosure in the light of what she contends are national security implications. The SSHD contended that I should order that the trials proceed by some form of CMP, involving SAAs to act for the Claimants in hearings dealing with sensitive material which would not be disclosed to the Claimants themselves. Alternatively, she contended that I should hold that such a procedure would be followed if a Claimant in any particular case were to agree that that should happen. The Claimants contended that I should direct a PII hearing in each case; some argued that no CMP could be held at all; others, while opposing such a procedure, argued that it could be held in certain circumstances, to prevent the claim being struck out, but only with a Claimant’s consent. No decision on that could be made by a Claimant until after the PII hearing. There was considerable disagreement over what the consequences would be of not having a CMP, and whether that was an issue which I needed to decide at all, rather than waiting and seeing what the position was in the light of the outcome of the PII hearings.

It eventually became clear that the SSHD was not quite contending for a CMP of the scope which the Security Service had failed to persuade the Supreme Court to institute for the purposes of an ordinary civil claim for damages. Both sides here agreed that PII hearings were the necessary next stage in the proceedings, whatever my decision on the CMP issue.

The parties were unsure as to the process which underlay the Order of Blake J on 23 February 2010; and it was agreed that all the claims should proceed through a conventional PII procedure. So the cases have reached the stage where a PII hearing needs to be held, which will decide what disclosure or gisting can be given on the conventionally applicable principles for a PII claim.

It is necessary, first, to say something about the nature of the claims themselves, since this can affect decisions in the PII hearings and the consequent trials.

Sections 6(1) and 6(2) of the British Nationality Act 1981 provide:

Paragraph 3 of Schedule 1 to the 1981 Act provides:

“Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applied for it-…

(e)

the requirements specified in paragraph 1(1)(b), (c) and (ca).”

The requirement of paragraph 1(1)(b) is as follows:

“(b)

that he is of good character; …”

Until its repeal by the Nationality, Immigration and Asylum Act 2002 with effect from 7 November 2002, s44(2) of the British Nationality Act 1981 provided:

“The Secretary of State … shall not be required to assign any reason for the grant or refusal of any application under this Act the decision on which is at his discretion; and the decision of the Secretary of State … on any such application shall not be subject to appeal to, or review in, any court.”

The discretionary power to grant naturalisation therefore does not arise unless the SSHD is satisfied, among other matters, that the applicant is of good character. It is for the applicant for naturalisation to persuade the SSHD that he or she meets the statutory tests. In reaching her decision on good character, the SSHD may consult the police, Government departments and other agencies. The nebulous nature of the concept of good character does not mean that the SSHD could not lawfully require a high standard of good character; R v Secretary of State for the Home Department ex parte Fayed (No 2) [2001] Imm A R 134, Court of Appeal.

There is no dispute but that, in the ordinary run of events, two principles of public law apply. First R v Secretary of State for the Home Department ex parte Fayed (No 1) [1998] 1 WLR 763 was decided when s44 (2) of the 1981 Act was in force. S44 (2) did not remove the duty of fairness which required the SSHD, before reaching a decision on the application, per Lord Woolf MR, to identify to the applicant the areas which were causing the SSHD concern so that the applicant might make such submissions as he could in advance of the decision; the applicant was entitled to be informed of the nature of the matters adverse to his application so as to be afforded a reasonable opportunity to deal with them, per Phillips LJ.

Lord Woolf however added, without dissent from Phillips LJ, p776H-777B:

“In some situations even to do this could involve disclosing matters which it is not in the public interest to disclose, for example, for national security or diplomatic reasons. If this is the position then the Secretary of State would be relieved from disclosure and it would suffice if he merely indicated that this was the position to the applicant who if he wished to do so could challenge the justification for the refusal before the courts. The courts are well capable of determining public interest issues of this sort in a way which balances the interests of the individual against the public interests of the state.”

Second, that duty obviously precedes but necessarily covers much of the same ground as does the duty to give reasons for the decision itself after it has been taken, a duty not now excluded by s44(2). The reasons must explain the basis for the decision in sufficient detail to enable the applicant to test whether the decision has been taken lawfully. In AHK, above, the Court of Appeal stated the general proposition that someone whose application for naturalisation was refused was entitled to be told the reasons why and that if he challenged the decision, he was entitled to see all the material which the SSHD had relied on in reaching her decision.

The SSHD is also subject to the duty of candour in judicial review proceedings: the duty on the defendant public authority to explain the full facts and reasoning underlying the decision challenged, and to disclose the relevant documents, unless in the particular circumstances of the case, other factors, including those which may fall short of requiring public interest immunity, may exclude their disclosure. Tweed v Parades Commission for Northern Ireland [2006] UKHL53, [2007] 1 AC 650 illustrates these points.

The essence of the various Claimants’ grounds is that, before any adverse decision is made on an application for naturalisation, the applicant should be told of the SSHD’s areas of concern so that they can be addressed as far as possible. After an adverse decision is made, the applicant should be told the reasons and basis for the refusal of naturalisation, or at least sufficient of them, so that he can respond effectively to them. The absence of sufficient information at either stage makes the refusal unfair. The essential and immediate purpose of the proceedings is to obtain a remedy in respect of the absence of sufficient notice of the areas of concern and of the reasons to enable them to be responded to effectively. That can be put as a claim for declarations that the refusals are unfair, in breach of natural justice and in other ways too, on the basis that fairness required greater disclosure. The cases are far more about the fairness of the procedure thus far adopted by the SSHD than about the substantive merits of a decision the basis for which the Claimant has not been told much about. Disclosure is effectively the substantive relief.

One of the matters of concern to the Claimants is that they are not in a position to challenge the decisions on other traditional Wednesbury grounds since they do not know what the bases for the decisions were. They would not, normally, expect at this stage of the argument, when the grounds for refusal are known only in the most general terms, that they could succeed in obtaining an order quashing the refusals on their substantive merits, let alone an order that naturalisation be granted.

So it is necessary to decide what disclosure the SSHD is obliged to make of her areas of concern or of the reasons for her decision pursuant to her implied statutory duties of fairness or pursuant to her litigation duty of candour. The PII process cannot require her to do more than that. It operates to limit what she would otherwise be obliged to disclose.

The duty of fairness is implied by the common law into the 1981 Act, and attributed to Parliament’s intention in the absence of its express exclusion. Fayed (No 1) shows that the requirement to disclose the areas of concern, so that the applicant can make his submissions about them in the interests of fairness, is subject to the inhibitions of national security or other public interest telling against such disclosure. That is a limit on what fairness requires in any particular case, recognised by the common law on its own general principles. Once that interest has been demonstrated to the court in respect of any particular document, it is difficult to see what role a balance has to play in the performance of the implied duty unless Parliament intended, by implication, to require the SSHD, out of fairness, to put national security at risk as the price of her considering and taking a decision that someone was not of good character on national security grounds, and then defending it when challenged. The need to strike any such balance can only arise because that is implied into the Act as Parliament’s intention. I would have thought that at least a debatable implication for the common law to attribute to Parliament’s intention. The mere bringing of a challenge by judicial review cannot require more disclosure in that respect than the SSHD was obliged to make in the first place in the interest of fairness.

However, the passage cited from Lord Woolf in Fayed (No.1) above appears to contemplate that there is indeed scope for a balance to be struck, since he treats the PII process as the applicable mechanism whereby that occurs. He does not suggest that the upshot of the process is that the SSHD is required through it to disclose more than her statutory duty requires. This means that Parliament is taken, perhaps surprisingly, to have imposed a duty on the SSHD herself to strike a balance which could mean that her statutory duty on occasions was to risk national security in the interests of justice for the applicant. If Parliament did so intend, it would also have intended the duty to operate in that way only in the most compelling circumstances. This supplies an important part of the context in which any balance is struck in a PII hearing.

Mr Eadie QC for the SSHD did not contend that the PII process in these cases was confined to testing whether disclosure of a document would in reality create a risk for national security. That is the issue which has to be resolved before any question of a balance can arise. He submitted that it would be very rare that a balance could sensibly be struck by the court so as to risk national security. The requirements of fairness were flexible, taking into account what was in the interests of the individual and the general community. The protection of the public from harm is the prime task of Government, and has long been recognised as a proper basis for not making disclosure in proceedings. Naturalisation is a privilege and not a right. Parliament cannot have intended that the public should be put at risk by the disclosure of material necessary to show that naturalisation should not be granted to a person not of good character, or that he should be granted naturalisation to avoid such disclosure. Save that I regard the description of naturalisation as a privilege as failing to recognise its potential engagement of Article 8, I accept that approach to the disclosure of areas of concern.

Similarly, the duty to give adequate reasons, again implied into the Act at common law, must be subject to the same limitations.

The litigation duty of candour cannot require a breach of national security. It overlaps with the duty to give reasons but is not quite the same in concept. If its scope is determined not by the implied intention of Parliament but by what the Court requires to do justice between the parties, to avoid making decisions on a misleading or materially incomplete basis, and to assert its authority over the lawfulness of the decision-making of public bodies, there is nonetheless no scope for a different result in this sort of case. The claims are about the disclosure of areas of concern and reasons. A different and more extensive duty of disclosure in the course of litigation would be at odds with the implied limits on the duty which it was the very purpose of the litigation to enforce. The implied restrictions on the duty in the Act would be evaded. Justice in the litigation requires testing whether the implied statutory duty of fairness has been met by the SSHD. It does not have the broader purpose it would have if the Court itself were deciding whether the Claimant were of good character. There is therefore no separate test for any of those duties.

What Lord Woolf said in Fayed (No 1) also means that it is for the Court itself to judge how the balance should be struck. It does not review on traditional bases the lawfulness of the balance struck by the SSHD. I am not sure that Parliament can have intended the inhibitions on disclosure within the implied duty of fairness to have been so expressed and so tested. However, that appears to be the position. The scope of the implied duty and the PII process have been conflated.

In the normal run of circumstances, the SSHD would have disclosed the areas of concern, and taken into account any responses made by the applicant; she would then have issued a reasoned decision. Her witness statement for the purposes of any judicial review of her decision would have explained the basis of the decision and would have produced the relevant documents.

When the SSHD claims that the disclosure of the areas of concern, the reasons for her decisions and the documents she relied on cannot be disclosed for reasons of national security or other recognised public interest, the judgment is to be made by the process of the SSHD claiming public interest immunity by Ministerial or other certificate, if appropriate, in respect of the parts of her written evidence and the documents over which it is claimed. It is for the Court then to decide whether the material for which PII is claimed is relevant and significant to the issues, and if so, whether it is covered by a public interest which would make it immune from disclosure in the absence of an overriding interest in its disclosure in the interests of justice, whether that is seen as a public interest in the due administration of justice or as a countervailing private interest. Once the Court has decided that it is relevant, and that it is covered by PII, it has to consider whether there are ways in which the salient points can be disclosed without any relevant harm being done, for example by gisting or concession. The creation of a partial and distorted picture could also be problematic, where differing degrees of sensitivity attach to various parts of the same picture.

When the Court has to strike a balance between the public interest which would be put at risk, both by nature and degree, and the impact on the proper administration of justice in the particular case, one important factor is the significance of the material to the case. Another, how important the particular public interest itself is, and the degree and nature of the risk which disclosure would run for the public interest at stake. The expertise and experience of the relevant body upon whose advice the Minister has issued the certificate should be respected, though obviously it cannot be determinative; institutional or functional respect is required.

Lord Mance in Al Rawi, at paragraph 102, described the factors relevant to balance between the public interest identified by the certificate and the public interest in the administration of justice struck by judges considering claims to PII:

“102.

In a civil law context, the liberty of the subject is not at stake. Where a prima facie case of public interest immunity is made out, a party who wishes to invite the court to inspect material before determining whether it should after all be deployed must show that it is likely to give substantial support to his or her case: Air Canada v Secretary of State for Trade [1983] 2 AC 394. When the court is balancing the competing interests, Cross & Tapper on Evidence, 12^th ed (2010), p 484 suggests, with reference to case law from various common law jurisdictions, that

“the court will take into account factors such as the seriousness of the claim for which disclosure is sought, whether or not the government is itself a party or alleged to have acted unconscionably, the relevance of the particular evidence to the dispute, taking into account other possible sources of evidence, and on the other side, the nature of the state’s interest, and the length of time that has elapsed since the relevant discussion took place.””

In Conway v Rimmer [1968] AC 910, Lord Reid said at p940, and quoted by Lord Clarke in Al Rawi,:

“It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order production of the document in question would put the interest of the state in jeopardy. But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved.”

I note what Lord Templeman said in R v Chief Constable West Midlands, ex parte Wiley [1995] 1 AC 274 at 281 H:

“If public interest immunity is approached by every litigant on the basis that a relevant and material document must be disclosed unless the disclosure will cause substantial harm to the public interest, the distinction between a class claim and a contents claim loses much of its significance. As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence or national security or diplomatic secrets will be self-evident and will preclude disclosure.”

The nature of the litigation and the claim is also very important. Like Lord Templeman in Wiley, I would regard it as highly likely that harm to the public interest through the disclosure of a document dealing with defence, national security or diplomatic secrets would preclude disclosure. However, as Lord Keith said inBurmah Oil Co Ltd v Governor of the Bank of England 1980 AC 1090 at p1134D-E, the nature of the litigation and its apparent importance may mean that the most sensitive and high level communications have to be disclosed, but he thought that such circumstances “might fortunately be unlikely to arise in this country”. Where the allegations are of serious misconduct against the bodies responsible for national security, defence and diplomatic relations, the Court will rightly be cautious about allowing a claim of PII to conceal evidence of misconduct to the advantage of the possible wrongdoer. I think that this was of real significance to the approach of the Divisional Court in R(Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [2009]1WLR 2653 as discussed by Lord Clarke in Al Rawi at para 184. I doubt that the Supreme Court were endorsing as a threshold test for any national security immunity that of a “real risk” of “serious harm”, given the range of significance which could fall below such a threshold, and the relative expertise and experience of those who make the claim for immunity, where errors of judgment can have real but unappreciated significance. There would be very few cases in which, even after the balancing of competing interests, such a risk could justifiably be taken.

Ms Harrison submitted that the fact that human rights were or might be engaged, would be relevant. The Claimants submitted that Article 8 was engaged through the refusal of naturalisation, and through the vague but damaging reasons given for the refusal; these could not readily be tested in the absence of full or at least very substantial disclosure. It does not seem to me to matter greatly whether those points are characterised as engaging Article 8(1) in a way which requires justification or not, for them to have force. However, the statutory context of the case, which also provides the justification for any interference with the Article 8 (1) rights, goes directly to the significance of that point for the PII exercise. I cannot see that the nature of the rights or the interference is of real additional weight to the interests of justice for the Claimant. Nor do I accept Mr de Mello’s submission for FM that proportionality affects what is required. It seems to me to be another way of putting Ms Harrison’s argument.

I do not accept Ms Harrison’s submission that the PII process must ensure that the Claimant knows sufficient of the reasons or concerns to be able to answer them, and that the protected public interest cannot prevail over that. The purpose of a PII hearing is not to achieve that. Ms Harrison’s contention would be a major departure from the role of PII. It would make the interests of the individual in the particular litigation override any public interest even in national security and defence, whatever the nature of the litigation, and even in litigation which he chose to bring. It would apply even though a responsible Minister had taken the view that he was not of good character. Her approach would remove the essence of balance between the two interests, and would in effect compel the SSHD to reveal information which the Court would otherwise have concluded should not be revealed in the public interest, notwithstanding its relevance to the litigation. PII would effectively have no role in protecting the public interest where what fairness would otherwise require to be disclosed should not be disclosed.

In Tariq v Home Office [2011] UKSC 35, [2011] 3 WLR 322 the Supreme Court set aside the declaration by the Court of Appeal that the Claimant was entitled to sufficient detail of the allegations made against him to enable him to give instructions to his representatives on them; see Lord Mance in particular at paras 65-69. This was not just in the context of that particular statutory regime, but was a more general point that Article 6 did not always require, regardless of context, that level of disclosure. What was at stake there was significant: it was the Claimant’s job.

The question may arise of whether the PII process is the means whereby information taken into account by the SSHD, but which has been obtained by torture from a third party, is excluded from the Court’s consideration. To my mind, PII would be the appropriate process since it is the point at which its relevance to litigation in a Court is tested. If information was so obtained, it is inadmissible and so cannot be relevant to the way in which the SSHD would defend her decision in Court. It is not that it would then be disclosed. The SSHD simply could not defend the case by reliance on it.

Although PII is concerned with the disclosure of documents, I see no reason, and the contrary was not suggested in this case, that it should not also cover the contents of the SSHD’s witness statements, which might or might not be supported by written discoverable documents. The witness statements of those who in the ordinary way would provide the SSHD’s evidence, even if they are not strictly speaking discoverable documents, draw upon, elaborate and explain the significance of those which are. They may rely on material which is not in documentary form at all. If that is an extension of PII, it seems to me to be one which is wholly within the inherent jurisdiction of the Court, and would not be such a departure from the normal procedures, or a departure to anyone’s disadvantage, that it should only be sanctioned by primary legislation. These statements should be produced at the normal time along with the documents relied on, which are usually exhibits, and the parts over which PII was claimed can be marked.

It is my firm view that the involvement of Specially Appointed Advocates in the PII process, at least in these cases, is essential. It would be very difficult for a judge on his or her own, to set about testing the claims to PII or what the interests of national security might involve, or to propose gists which might resolve the issues. SAAs have acquired experience in this area, can undertake some research, and can raise points which it might not occur to the judge to raise. I believe that there will be some challenging PII issues in these cases where the judge should be greatly assisted by submissions in opposition to the SSHD, successful or not. In SIAC and Control Order cases, discussions before the disclosure hearings between the SAAs and the SSHD’s advocates have greatly narrowed and refined the issues with a considerable saving in Court time. Although the process would not be identical, the value of the SAA would still be considerable. The SAA will also know what the real concerns of the Claimants are. The nature of the balance being struck in a PII hearing may not be the same as in Control Orders, or their successors, the Terrorism Prevention and Investigation Measures. But to the extent that it involves a consideration of what is fair to the Claimant, so that that can be balanced against the opposing public interest if that is made out, there would be an obvious potential advantage to the Claimant if that aspect of his case can be explained to the judge.

Although the PII issue in these cases is said to be national security, there are other issues which raise PII points and which can go to good character. They too would have to be dealt with in the same process, and in my view it would be better for a SAA to be involved in such issues were they to arise. The balance might be struck differently however.

There was some comment in Al Rawi as to whether the consequences of there being no CMP, or none without the consent of the parties, should feed into the way in which the PII balance was struck; see in particular Lord Mance at para 109. The thinking was that if the case were to be untriable without a CMP, which could not be held, consent or no, the public interest in the administration of justice might require the striking of the balance between the competing interests to be struck differently. The parties differed as to whether the Court, in reaching such balance as was required, should take into account the nature of the subsequent proceedings.

For reasons which I shall come to, I have reached the view that a CMP cannot take place without Parliamentary legislation, as with ordinary civil actions. I have also come to the view that the parties cannot consent to a CMP. I have also come to the conclusion that the existence or otherwise of a CMP should have no effect on the way in which a PII process should be carried out.

First, as a preliminary observation, this factor could only be relevant where there was a challenge to the substantive merits of the refusal of naturalisation, whether for example, on rationality grounds, or the way in which material and immaterial considerations were treated. It would be difficult to apply it to the fairness of disclosure issues, since that as a ground of challenge in its own right is largely concluded by the PII process itself, as I shall come to. The Claimant will have received what disclosure is required after the balance has been struck, assuming the order is complied with.

Second, how in practice would account be taken of the absence of a CMP? There would be no point, if non-disclosure would make the case untriable in the absence of a CMP, in ordering disclosure beyond that which would otherwise be ordered if that still fell short of making the case properly triable. That would be to wound the public interest against disclosure pointlessly. It would be a radical change to the current PII test if the judge alternatively had to rule that sufficient always had to be disclosed to make a trial possible and fair outside a CMP. Such a change would be a particular problem in a judicial review case, where the trial or a trial fair to both sides cannot take place without the court, and hence necessarily the Claimant, being fully appraised of all the material before the SSHD when reaching her decision. So taking the absence of a CMP into account would add nothing.

Third, in order to take such a factor into account the judge hearing the PII issues, would have to form a view about whether the case could be tried at all, with and without the disclosure at issue. His difficult task would be to form this view before hearing the parties on the effect of the disclosure otherwise ordered. He would have to explain that he had reached this view on material which was available only to one party. There might be sound national security objections to the explanation of the degree of knowledge which the SSHD had of a person said to be not of good character. Moreover, the Claimants were opposed to the judge forming a view that a case was untriable, since the logical conclusion of that is that the case would be struck out at the PII stage.

Fourth, as Mr Eadie submitted, it would be particularly difficult, if there were power to hold a CMP by consent, yet the Claimant did not consent or would not say whether he would consent until after he had seen the outcome of the PII process. That would put him in the advantageous but unfair position of being able to force material to be disclosed, risking the public interest, and facing the SSHD, if the Claimants’ analysis of the law is correct, with an acute dilemma over disclosure or abandoning the defence or her statutory duty, simply by virtue of refusing to consent to CMP or to say in advance what his position would be. The logic of Mr Southey’s submission that a Claimant’s decision on consent should await the outcome of the PII process, is that that potential but uncertain process cannot be taken into account in the PII process.

Part of all, and at times the whole of some, of the claims concern the lawfulness of the degree of disclosure, either of the areas of concern before decision or of the reasons for the refusal itself. This challenges the fulfilment of the duties implied by common law into the Act. Once the Court has ruled on the extent of disclosure required by PII, and what it has ordered to be disclosed, if anything, has been disclosed, the challenge to the lawfulness of the disclosure of the areas of concern and of the reasons, will have been largely concluded. The next step would be to decide whether the earlier omission of what was now disclosed breached any of the duties of fairness. The mere fact of further disclosure might or might not show that. There is no reason for that issue to be dealt with by a CMP, since all the material which is required to be disclosed will have been disclosed, for all parties and the Court to consider. That issue might well be irrelevant save as to costs.

The real CMP problem relates to substantive challenges, which are likely to arise in subsequent actions after representations on any disclosed material have led to a further adverse decision by the SSHD.

This of course supposes that the SSHD has complied with what the Court has ordered, yet there is material which has properly not been disclosed but which is relevant to the substantive merits of the decision. The relevant public body would have the option, however unpalatable, of not contesting the claim if it still thought it necessary to prevent disclosure of the material. But it would reach that decision knowing that its arguments to the contrary had been considered and rejected following the procedure established at common law for dealing with such issues. The public would know that too. It might not like the decision, but it would have been reached within the established framework for making such a decision. If of course, the SSHD declines to release the material which the court has ordered to be disclosed in the PII hearing she cannot be heard to say that she is being required to do that which Parliament has not authorised by the implied duty of fairness.

Before turning to the submissions about CMP, I add two observations. The ordinary principles of common law fairness, implied into the 1981 Act, cannot require the SSHD to ignore relevant material on the grounds that it could not be disclosed in Court and in consequence grant naturalisation despite being satisfied that the applicant was not a person of good character. That would first require the SSHD to act contrary to the public law duty, implicit in the Act, to have regard to all material considerations; see A (No 2) [2006] 2 AC 221. Second, it would require her to grant naturalisation when she was satisfied that a person was not of good character, contrary to what the express terms of the Act require.

The claim to PII is a Ministerial duty; see paragraphs 127 and 146 of Al Rawi; Lords Mance and Clarke respectively. Parliament cannot rationally be taken to have legislated by implication that the SSHD had to choose between breaching her duty to protect national security in order to defend her decision, or to grant naturalisation to applicants who she was satisfied were not of good character. It would require the clearest legislative language to impose so dire and dangerous a dilemma. It is idle to suppose that Parliament would be unaware that the SSHD might have to take into account information, sensitive on national security grounds, which was relevant to her judgment of whether an applicant for naturalisation was of good character. The Court would have already ruled that the interests of national security required that the undisclosed material should remain undisclosed. The lack of full disclosure of areas of concern would have been justified to and upheld by a judge. An absence of full or any reasons for the decision in those circumstances could not permit the inference that there were no or no satisfactory reasons. Article 6 does not require such a result.

So I turn to the possibilities. First, can the Court fairly review the decision without a CMP? In my view, it cannot review the decision since it will not have all the information upon which the decision was taken. By contrast with an ordinary civil action, the Court would be reviewing the lawfulness, not the merits, of the decision. It cannot do that without seeing all the material which statutory duty required, or permitted the SSHD to take into account, save for the particular issue of information obtained by torture. It would be impossible for it to hold that her decision was irrational, or unlawful when it could not know what she had considered.

It will not have all the information as a result of the Court itself deciding that the material is too sensitive to be released. The balance will have come down against disclosure. The Court could not try the issue, knowing that there was other relevant material but not knowing what it was, on the false basis that there was nothing else or that the SSHD had simply refused to provide material. It would have to take its decision on the basis that the absence of disclosure of concerns or reasons was justified, after the PII hearings. If the SSHD gives evidence that there were good reasons and a sound relevant basis for her decision, having considered the Claimant’s representations, which she could not further disclose, it would be impossible for the Court fairly or reasonably to hold that she was wrong in saying that. The Claimant would have no prospect of persuading the Court to the contrary. It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win. So there is no point in it going to trial. Even if it were alleged that an immaterial factor had positively been taken into account, unless its context and significance could be fully appreciated, the Claimant still could not win.

This would be akin to the position in Carnduff v Rock and Chief Constable of West Midlands Police [2001] EWCA Civ 680,[2001] 1 WLR 1786. The Court of Appeal held by a majority that a fair trial of the issues between the police and the Claimant, an informer who was seeking to enforce payments he said were due under an agreement he had with the police, would require disclosure, investigation and a court ruling on sensitive police information which should remain confidential in the public interest. The public interest in maintaining that confidentiality clearly outweighed the public interests in having the issue litigated on all relevant evidence. There was no sensible possibility that the claim could be litigated without offence to the public interest and so it was struck out. The minority view was that if such a contract existed, a mechanism for trying the issue should be found. The Claimant’s application to the ECtHR was held inadmissible; 18905/02.

For the same reasons, there is really no second possibility that the SSHD must lose. The Court cannot require the SSHD either to disclose material harmful to national security in order to prove the lawfulness of her conclusion that the Claimant was not of good character, when the Court itself had decided against ordering disclosure, or to grant naturalisation in breach of her statutory duty, when she was not satisfied that he was of good character.

I reject entirely the suggestion that the Court should accept a mismatch between the material which the Court has when reviewing the SSHD’s decision, and the material relied on by the SSHD, ie that it should assume what it knows to be false, which is that there is no more information relevant to the decision. There may be circumstances in which there is a mismatch between the evidence upon which the SSHD is entitled and even obliged to rely in reaching her decision, and that upon which she can defend it in court. This is exemplified by the decision in A v SSHD (No 2),[2205] UKHC 71, [2006] 2 AC 221where information has been obtained by the torture of third parties. The situation in A (No 2) was exceptional; indeed SIAC had to reach its own decision on the material. That would be an example of an anomaly tolerated by the common law in a wider interest. That very particular situation arises from the conflict between the SSHD’s inevitable operational need to consider information even if it has been obtained by torture, and the refusal of the Courts to reach any decision of its own, taking account of such information. Tolerance of anomaly in pursuit of a principle such as that which would exclude reliance in court on information obtained by torture should not be extended to create anomaly here, where by contrast the Court has ordered that the undisclosed materials should remain undisclosed, and the Court is reviewing the lawfulness of a decision based on relevant but undisclosed material.

Third, the Court might decide that it would review the decision, albeit knowing that not all the material relied on had been disclosed, not knowing what it was. I accept Mr Eadie’s submission that this third possibility would very probably result in an inextricable circle. If the Defendant lost, and the Court held that the decision was unfair or insufficiently reasoned, or that material considerations had been ignored, the SSHD would have to take the decision again. The same process would be repeated. The SSHD would still be required to have regard to all material factors. The Court would rule that the material should not be disclosed. The Court would then rule again in the same way. It is impossible to see that the decision could be held to be irrational by a court which knew it did not have all the evidence, or that the Court could then hold that only one decision, namely to grant naturalisation, was lawful. The inextricable circle would bring the law into disrepute, and advance neither side.

Fourth, the Court could hold a CMP, by consent or by compulsion, at which it could with a SAA examine the material, which would enable the court to see the evidence which persuaded the SSHD, and it could reach a view on the merits of the substantive challenge, albeit without the assistance of the Claimant.

In my judgment there are only two realistic options: either the Claimant loses, or loses in all realistic probability, or there is a CMP. Mr Eadie submitted that a CMP, with or without the consent of the Claimant, was to be preferred. The case would have become untriable since the SSHD could not present to the Court the material upon which she relied. The protection of the interests of national security required the Courts to develop principles which enabled justice to be done to the parties, even though less than perfectly. Judicial review cases involving sensitive material were in that special category: judicial review was an essential part of the means whereby the rule of law was enforced. The Government was entitled to take all relevant material into account, including material to which the Claimant legitimately would have no access. The Court could not carry out its review function, reviewing the SSHD’s decision on the material upon which she relied if it did not have that material. It was not deciding an issue of fact between parties. The CMP would only occur once the PII process had established that there was significant relevant material relied on by the SSHD which was not to be disclosed. The judge would have all that material. The interests of the Claimant would be protected by a SAA. The imperfections of such a system were preferable to the alternative.

The decision of the Supreme Court in Tariq, above, should be read with its decision in Al Rawi. This recognised that a CMP could be compatible with Article 6 ECHR. That case concerned a statutory provision, but were the Court to decide that there could be a CMP in judicial review hearings, and that it could introduce such a procedure without legislation, it would not of itself breach Article 6.

There were compelling reasons why the Court should not treat Al Rawi as preventing a CMP in these cases: Al Rawi concerned ordinary cases involving a dispute between parties, albeit that the circumstances were unusual, in which the Court’s task was to reach conclusions on fact. The naturalisation cases involved the review by the Court of decisions of the SSHD for lawfulness, pursuant to a process the fundamental purpose of which was to ensure that the Government and public bodies behaved lawfully, a difference exemplified by the need to obtain permission to proceed, and the discretionary nature of the remedies.

The Supreme Court had not held in Al Rawi that a CMP could not be held in a judicial review claim. It had only dealt with what could be required in a claim for damages for tort and for breaches of the Human Rights Act 1998. Lord Phillips expressly confined his judgment to the issue which was delineated before them, and which did not cover judicial review. Lords Mance and Brown, and Lady Hale, did not pass an opinion on whether their decision would have been the same had the case before them arisen in the context of judicial review. Nor did they suggest that the decision in one area of judicial review would necessarily be the same in another. Lord Clarke did not see a distinction in principle between an ordinary claim for damages for tort and a claim for judicial review in this context, but did not rule out such a procedure in either.

Lord Dyson also saw no distinction in principle between judicial review and a claim for damages for tort in this respect. Lords Kerr and Hope agreed with the general approach of Lord Dyson.

Indeed, the Court recognised that a CMP could be deployed by the Courts, without the need for statutory provision, in certain cases involving children or commercially confidential material. The Court had demonstrated an inherent jurisdiction to regulate its own procedure in a flexible way.

Mr Eadie also submitted that even if the Court could not order a CMP, it could hold one where the parties consented, as it was anticipated some of the Claimants might well do, if the alternative was that the cases would be decided against them since the full material relied on by the SSHD could not be deployed. Lord Mance and Lady Hale considered that a CMP held by consent after a PII hearing would be preferable to a striking out as Carnduff suggested would be inevitable if the full material could not be disclosed. Lord Clarke thought that there could be one. Lords Phillips and Brown thought that no CMP by consent was possible in ordinary civil proceedings. Lords Hope and Kerr were doubtful. But, submitted Mr Eadie, the Claimants’ consent would not be obtained by unfair pressure from one party; rather it would be obtained because the PII rules governing the claim meant that no further information would be forthcoming and the case could only otherwise be decided against them. This would be the consequence of the nature of the claim, the SSHD’s legitimate defence, and the common law PII rules governing disclosure.

Mr Southey contended that the parties could agree to a CMP but that it could not be imposed. It could only arise where the PII process had shown that it was necessary because of the injustice which would otherwise arise if the claim were struck out. Mr Southey adopted the reasoning of Lord Mance. The Court should strive to avoid a position in which the case became incapable of being tried. Ms Harrison for AS submitted that there was no power to hold a CMP by consent. Mr De Mello for FM said that FM did not consent to a CMP.

Persuasive though I found Mr Eadie’s arguments, I do not consider that I can accept them. I accept that a CMP is the only realistic alternative to the Claimants simply losing; the cases in other language become untriable. I accept that a CMP is capable of being Article 6 compliant, but the decision in Al Rawi means that a CMP in judicial review proceedings requires legislation, nor can it be held by consent. I elaborate those points.

The Supreme Court decision in Tariq shows that a CMP, albeit one provided for by legislation, need not breach Article 6. I do not see that that conclusion was confined to that particular context where the Claimant’s choice of employment involved security vetting and a consequential need for the state to be able to withdraw clearance, and end employment, if clearance had to be withdrawn. The state was not obliged, for the purposes of Article 6, to disclose the material which led to the withdrawal of clearance, where that would be damaging to national security, or alternatively to concede the case, however strong it was. Undoubtedly, the context in which the issue arises is important, but the decision was not exclusively confined to that particular context. There was a clear distinction between civil and criminal cases, and between cases in which the state imposed burdens on the claimant by way of detention or serious restrictions on liberty, and those where the issue arose in a context in which the claimant had voluntarily placed himself. The range of actions in which some form of CMP is used to cope with the relevance of material protected by PII, shows that in the right circumstances, the procedure is compatible with the rule of law.

Lord Mance rejected the argument that the only possibility was, applying Carnduff, that the case might not be justiciable at all without the material which the Defendant was entitled to keep immune from disclosure. A CMP, in those circumstances, could be Article 6 compliant. He then said at para 40:

“40.

Neither of these possibilities is one which the law should readily contemplate. In the penal context, an accused is presumed innocent until proved guilty; there is a public interest in the trial of suspects before a court, but it is better that the state should forgo prosecution than that there should be any risk of an innocent person being found guilty through inability to respond to the full case against them. These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all. The rule of law must, so far as possible stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this. In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context. ”

I see what Lord Mance said as the statement of general principle with which the others in the majority agreed in their own words, notably Lord Hope at para 79. Lord Dyson saw the decision on gisting as confined to surveillance and security vetting cases, in language which as I read did not mean that he was precluding its application in other security related contexts. He agreed with Lord Mance on the CMP issue. Lord Mance rejected the argument that the Home Office simply had to pay unmeritorious claims if it did not wish to make disclosures not required following a PII or like process. And I would add here, that it is not a question of paying claims, but of granting a status, with all that that brings with it.

The context here is not one of compulsion, nor of imposition since the Claimant applies for naturalisation. He is not compelled to do so. However, it cannot be regarded simply as a matter of free choice. There are consequences of naturalisation which go to rights to remain, return, travel, statelessness, or which affect family life and so on, and whether these are or are not Article 8 points, they are not matters which arise out of the same freedom of choice as in the employment context in Tariq.

If the alternative to a CMP is not so much that the cases are incapable of being tried, but that the Claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness toward a Claimant. On analysis with an SAA, the SSHD’s case may not be supported by the documents, or they may require a different interpretation in the light of what is said by the Claimant, albeit without sight of them.

I found the approach to this of Lord Clarke in Al Rawi persuasive. I do not think that a Court itself should recoil from changing its procedures where continuing adherence to the normal best procedure actually prevents a fair trial, and where a reasonably fair, albeit imperfect, procedure can be devised which permits a trial to take place. I do not think, and I am not alone in this among the judges who hear these types of cases, that the views of the Special Advocates as represented to a specific question put by the Joint Committee for Human Rights, and as recounted by Lord Dyson, at paragraph 37 in Al Rawi, and perhaps qualified to a degree, are a true reflection of the effectiveness they bring. Nor do they properly reflect the ability of an individual to explain what he has been doing and saying, with whom and to whom, even without specific details of allegations against him. He can also provide statements only for the use of the SAA in the closed sessions, if the SAA considers that advantageous. Nor do those views convey the actual knowledge which individuals’ statements and actions show they have or must have of areas of concern which have not been specifically let alone fully detailed to them.

I do not see the decision in Al Rawi as turning on the existence of jurisdiction in the narrow sense. Procedures have been devised to secure fairness in child welfare cases and in certain commercial disputes, notably involving intellectual property. I do not see that it would be outside the broad confines of the inherent jurisdiction of the Court, its jurisdiction in the narrow sense, to extend those categories to cover cases which could not fairly be tried without such a process because of the damage which would be done to national security. The protection of intellectual property rights does not seem a case for which specific provision should be made, while not for the interests of national security. But the Supreme Court has held that whether or not it would fall outside the inherent jurisdiction, it is not a jurisdiction which should be exercised in an ordinary civil claim for damages.

I accept Mr Eadie’s submission that the application of a CMP to judicial review was not before the Supreme Court in Al Rawi and that those who discussed it were expressing obiter views albeit of authority, even though Lords Dyson and Clarke differed in the significance they attached to the similarities between ordinary civil actions for damages and challenges by judicial review.

However, the crucial point, as I see it, was not the form of action, nor even the legal nature of the issues. The crucial point was the nature of the process whereby decisions would be reached in ordinary civil claims for damages, which led the Supreme Court to hold that it was for Parliament to rule on, and devise if it wished the boundaries for such a process. The change was of such a nature, controversy, and so contrary to the normal procedures of a Court that Parliament should reach the decisions on whether and how to make such a change. I also regard the strong but differing views of the Supreme Court Justices about the desirability, fairness, circumstances and operation of a CMP as meaning that the resolution should be Parliamentary rather than of the Court’s devising.

So to the extent that the decision was not a narrow jurisdictional one at root, it was fundamentally about the allocation of decision-making on controversial trial procedures as between the legislative and judicial pillars of the constitution. It is there that the analogy with R v Davis [2008] UKHL 36, [2008] AC 1128 is both legitimate and compelling. Criminal case although it was, and concerning the way in which the common law should develop legitimate means to protect the identity of witnesses in the interest of a fair trial, there came a point at which the Court should draw a line at what it developed, and place the problem for resolution by the legislature.

I do not regard the fact that a case may be brought in the form of judicial review, governed by CPR Part 54, as capable of being a principled basis for reaching a different conclusion on the allocation of responsibility between Parliament and the courts. The basis for the decision was the nature and degree of departure from the normal practices of a court without Parliamentary provision. That seems to me to apply equally to judicial review in which there are provisions for disclosure and the application of the duty of candour to be measured against the statutory context, but most importantly, the cases are heard in public, the judgments are public, and there is no CMP. It is not the nature of the action or duty, statutory or common law, which could lead to such a distinction. The PII issue may arise in a different way in view of the statutory context, but the conflict between what would normally be disclosed and what is to remain undisclosed, with whatever effect that may have on the continuance or fairness of proceedings, is not in principle different.

The fact that the nature of the action is different may affect, and in my view crucially does affect, the consequences of there being no CMP, but that cannot be a basis for a different outcome on the role of Parliament in legislating. The nature of the action challenges the way in which a public body has carried out its duties but that may be very much part of the ordinary civil action for damages against a public body.

Although the decision in Al Rawi does not expressly find that, had the case not been conceded by the SSHD, she could not have placed her case fairly before the Court, there is nothing to suggest that if it had reached that conclusion, it would have held that it did have jurisdiction and should exercise it so as to create a CMP to avoid injustice being done. A CMP cannot be held where it is necessary to do so for a fair hearing for Claimants, but not where it is necessary for a fair hearing for the SSHD. It is implicit in the decision in Al Rawi that, where there was conflict between the fundamental requirement of disclosure and open justice and the inability of a party in consequence to have a fair trial, it was for Parliament to set the balance, and the procedure to resolve it. It was not for the Court, if the best was the enemy of the good, if the insistence on a fully open procedure meant that realistically there could be no fair trial, to devise the solution to the problems created by application of the normally fair procedure.

Those points apply equally in my mind to judicial review or public law proceedings as they do to private law actions or damages. If the position were to be that the existence of undisclosed national security material were to put a trial into a CMP, that is the sort of process which the Supreme Court said should be dealt with by legislation. I do not see that, although the problems and issues are different in judicial review, that the concerns of the Supreme Court about devising and instituting such a process for itself, and which led it to reject the SSHD’s arguments, are different in nature in this sort of proceedings. Although these cases are said by the SSHD to turn on national security issues, there may be some in which either that description has been wrongly applied to the material, or there are other PII interests, perhaps as strong as national security but under a different head such as diplomatic relations, or weaker ones. If the existence of undisclosed material after a PII hearing means a CMP route is always to be followed, that is clearly a decision for Parliament. It is not clear how PII should relate to it; in Al Rawi the two were linked, in the Security Service case; the CMP was to come afterwards in the SSHD submissions here. There is also an obvious difficulty in drawing a distinction between judicial review cases which do or do not include a tortious or Human Rights Act damages claim. AS seeks damages here.

There are also real difficulties about how a Court, after a PII procedure, should decide that a CMP procedure should now be applied, and by whom and on what basis. How significant would the undisclosed evidence have to be? Indeed the less significant the evidence, the greater the need to have a closed hearing since that offers a greater prospect of success for a Claimant than having none. Would the judge have to decide in a CMP that the alternative would be that the case would otherwise be struck out? Would he say that a fair trial would not be possible or would probably not be possible or merely less than ideal? Lord Dyson at paragraphs 43 and 46 in Al Rawi raises these points, to which I see no ready answer. Though I do not doubt that the Courts could devise an answer, this is an area which shows that the circumstances and means whereby a CMP was instituted were very much a matter for Parliament, whatever the nature of the claim.

I have also concluded that it is not open to the parties to consent to a CMP. The Supreme Court were divided about this, and the views are largely tentative. Lord Clarke, Lord Mance and Lady Hale thought that there could be such a process by consent. Lords Hope and Kerr had misgivings the strength of which I doubt. Lord Brown thought that there could be no CMP by consent. The others expressed no view.

First, I do not see that this procedure should only be available to the advantage of one party. I do not see Lord Mance and Lady Hale, in paragraph 120, suggesting that it should be dependant on the consent of both parties, as Ms Harrison submitted. Their assumption appears to be that the Defendant would necessarily consent or could be ordered to comply. Lord Clarke appears, at paragraph 161, to take the view that the Defendant would consent, especially as it was the SSHD’s submission that the process could at least take place with the Claimant’s consent. But why should the Defendant consent? Is it always to be taken that the Defendant has no option? And if not, why should the Defendant be forced to accept such a procedure at the option of another party? And if the Defendant is forced to accept it, why should not a Claimant also be forced to accept it, upon the Defendant consenting to a CMP instead of the case becoming one which it cannot defend?

Second, if a party is to consent to a CMP, a CMP has to be devised by the Courts. So the arguments about the circumstances in which it would be devised, the striking of the balance, and procedures for such a CMP, as arguments against the Court devising it, must fall by the wayside. But these difficulties were important to the Supreme Court’s decision; see Lord Dyson at paragraph 46. And does a CMP and if so in what circumstances apply to a PII claim other than national security? How far does the consent have to extend: to principle or to every aspect of procedure?

Third, such consent means that there has to be jurisdiction at least in the narrow sense, an issue on which I do not see a clear majority view, although I regard it as the source for the limited exceptions already made. A system which requires Parliamentary legislation before it can be imposed, would be available without it because the parties consent. This is not an arbitral process however. Still less is it a private process of interest only to the parties. There may be a strong public interest in many private law actions, but there is always a degree of public interest in the performance of statutory duties. I firmly agree, on that basis, with what Lord Brown said, at paragraph 84:

“84.

Lord Clarke JSC (para 161) understands it to be common ground that there could be no objection to a closed procedure were the parties to agree to it (as claimants might, were the only alternative to be the striking out of their claims). From my part I respectfully disagree. The rule of law and the administration of justice concern more, much more, than just the interests of the parties to litigation. The public too has a vital interest in the conduct of proceedings. Open justice is a constitutional principle of the highest importance. It cannot be sacrificed merely on the say so of the parties.”

I am not however persuaded that the misgivings of Lord Hope and Lord Kerr at paragraphs 75 and 98 respectively that the consent might be given under pressure amount to a real problem. The problem arises because of the nature of the case, the defence and the absence of disclosure of all the relevant material as a result of the PII process. The option of a route to mitigate that is not an option accepted under untoward pressure. Litigants have to deal with the problems which the procedures applied to their case create.

Fourth, the Claimant would have to be advised that the case is arguable to the extent that it was worth having a CMP. That brings its own problems. Mr Southey submitted or assumed that the PII judge would deliver a judgment which would assist the parties in deciding how to proceed. I do not see that the PII judge can explain that there is or is not something of significance in the closed material, so as to assist the parties in deciding whether to consent to a CMP. The SAA might advise, but the SSHD could reasonably object to the disclosure of the degree of the Security Service’s knowledge of the Claimant which that might entail.

I do not consider that there is room for any assessment by the PII judge, after argument from a SAA, that the SSHD’s case, taking her evidence at its highest and with what is known from the Claimant, should not succeed. I do not think that it can be said that a CMP is permissible to that extent, which would be in effect consent to a CMP but from one party only. The SSHD could reasonably object to such a one way process. And it would not necessarily be unreasonable for her to do so. The response to a case which is seemingly weak may be quite revealing.

I do not consider either that this outcome can sensibly be mitigated by the PII Judge delivering a judgment which said that, in the light of the undisclosed material, a substantive open trial would nonetheless be fair. If the PII Judge heard the case, he would know what the Claimant did not. If another Judge heard it, he would not know, and might have viewed differently after full argument, what was missing.

I am aware that there are currently controversial legislative proposals but I do not regard that fact as a sound basis for holding that there is no CMP available in these cases, where a CMP could sensibly mitigate probable injustice.

I therefore hold that in the naturalisation cases, there can be no CMP even by consent, save as is inherent in the PII process. The cases will have to be considered in the light of anything which emerges from the PII process. There will be very little left of the natural justice grounds once that order has been complied with, since the duty will have been fulfilled. I cannot see how the substantive cases can succeed, if the SSHD makes a statement to the effect that she relied on material which she has not been ordered to disclose. There may perhaps be very unusual circumstances e.g. where disclosed material positively reveals an error which undisclosed material cannot exculpate.

The only direction I give is that the cases should proceed to a PII hearing which should be held with the benefit of a SAA for the Claimant in each case. The PII procedure can be adapted at least to this extent: first, the SSHD or the witnesses on her behalf should provide to the SAA and lodge with the Court the witness statement and supporting documents in the usual way for a judicial review along with the Certificates of Public Interest Immunity in respect of documents and part of the statements. This would follow the way in which open and closed material is lodged in Control Order/TPIM cases, with the grounds of objection to disclosure set out. This extension would cover the statements as well as the documents. Second, PII should cover the question of material which had been obtained by torture, which the SSHD should not rely on in Court, accepting any mismatch between what information she had and what information she relies on in Court. The material would be irrelevant, and would not be disclosed, because it was no longer being relied on.

I can give no direction as such as to what should happen thereafter since that will depend on what is disclosed. The Claimants cannot be expected to make further decisions until then.

I consider, if I am right, that this rather unsatisfactory outcome should be remedied in Parliament, by provision for a CMP, at least in this sort of case.

I will hear such argument as may be necessary on the timetable for the next stage.