Khaled & Anor v The Secretary of State for Foreign and Commonwealth Affairs & Ors

These applications for judicial review were last before me on 9^th December 2016. I ordered amongst other things that the claims brought by Mr Abdulbaqi Khaled and Mr Elmabruk Maftah (“the Claimants”) should each be heard together with the civil claim brought by each Claimant and relating to the same subject-matter; and that, if the Defendants’ application for a declaration under section 6 of the Justice and Security Act 2013 (“the JSA 2013”) were granted, an open hearing should take place “to consider the principles of disclosure” applicable to these judicial review proceedings. These conditions having been satisfied, the parties appear before me today to debate the scope and nature of those principles.

The background to these judicial review proceedings may be briefly stated. The Claimants were designated by the UN Sanctions Committee in 2007 and 2008 respectively as individuals suspected of being associated with Al-Qaida and the Libyan Islamic Fighting Group, and of being involved in terrorism. They remained designated by the UN until June 2011 and December 2010 respectively. During their periods of designation, they were subject to the extremely restrictive asset-freezing regime set out in secondary legislation designed to give domestic effect to international law.

I can take the essence of the Claimants’ case from paragraph 4 of their skeleton argument:

“…the Claimants seek to challenge, inter alia, the decision of the First Defendant [the FCO] to nominate them for designation by the UN, the decision of the First Defendant, as a member of the UN Sanctions Committee, to support their designation, the refusal of the First Defendant to seek their de-listing until 4^th November 2009, and the First Defendant’s decision thereafter to refuse to seek their de-listing on the basis that they were never involved in terrorism … The Claimants claim that those decisions were unlawful on a number of grounds, in particular because the Claimants were never involved in terrorism, and therefore they did not meet the criteria for designation … The Claimants seek a merits-based and proportionality review of the decisions that led to their initial designation and to their remaining designated for so long.”

At this stage, it is unnecessary to say anything more about the factual background to this litigation or the precise way in which the Claimants advance their cases in their Re-Re-Re-Amended Grounds. As will soon become clear, the issue I have been asked to determine – at least in the first instance – is not fact-sensitive. However, I should specifically make clear that the Claimants’ underlying cases remain important and that the draconian, paralysing effect of asset-freezing orders is not in issue: see Ahmed v Her Majesty’s Treasury [2010] 2 AC 534, per Lord Hope (at paragraph 4) and Lord Brown (at paragraph 192).

The Defendants’ basic position is that the JSA 2013 is exhaustive of both the Claimants’ rights and the Defendants’ correlative disclosure obligations, that the “principles of disclosure” applicable to these proceedings are solely those located in that statute, and that no further source of rights and obligations may be tapped. Thus, the Defendants submit that the JSA 2013 comprises a comprehensive statutory code leaving no space for the introduction of any common law principles inconsistent with that regime. The Claimants’ headline submission is that the common law requires the provision of a “core minimum of disclosure” in order to render these proceedings fair, that section 7(3) of the JSA 2013 gives express embodiment to this fairness obligation (or, at the very least, is the portal through which the common law passes), and that certain consequences must flow from this. This core minimum has been described as “A-type disclosure” following decisions of the ECtHR and the House of Lords.

The Claimants are compelled to invoke the aegis of the common law because Article 6 of the Convention does not apply to these proceedings: see R (Khaled) v Secretary of State for Foreign and Commonwealth Affairs [2012] QB 477. They also face the difficulty that Irwin J (as he was then) ruled in Khaled v Security Services [2016] EWHC 1727 (QB) - that “A-type disclosure” does not apply in relation to Mr Khaled’s civil claims for misfeasance in public office and conspiracy to injure. However, the submissions developed before me by Mr Dan Squires QC for the Claimants advanced along a somewhat different route from any previously advanced in this sort of case, and as I observed at the end of the hearing his case is not precluded by res judicata or stare decisis but must be addressed on its merits.

Mr Squires advanced four propositions in oral argument in support of his clients’ case:

When this matter was last before me on 9^th December 2016 I was given succinct iterations of both parties’ cases on these questions. Although I suspected that the Defendants’ submissions would probably prevail after full argument, I was not sufficiently convinced that this would be so; and, for that reason decided to adjourn the issue for full argument. Having now received detailed written and oral submissions on this topic, I am satisfied that I was right to require full argument on these questions because Mr Squires has skilfully advanced submissions worthy of careful consideration and analysis.

At the invitation of Mr Angus McCullough QC as Special Advocate, and without opposition from Mr Squires, I decided to take issues (iii) and (iv) as preliminary matters for adjudication, leaving for subsequent determination (should the need arise) of issues (i) and (ii).

Before setting out Mr Squires’ submissions in greater detail, I must briefly explain the background to the enactment of the JSA 2013 and then summarise its key provisions.

The issue in this case, which was finally determined by the Supreme Court on 13^th July 2011, was whether the High Court had power under its inherent jurisdiction to adopt a closed material procedure in the context of an ordinary civil claim for damages. The Supreme Court by a majority upheld the decision of the Court of Appeal that it did not. This was because a closed material procedure was so anathema to the fundamental common law principles of open and natural justice that on no sensible basis could such a procedure be said to spring from anything the common law properly recognises: see, in particular, Lord Dyson at paragraphs 41-45, 48 and 67; Lord Hope at paragraphs 71-75; and Lord Brown at paragraph 87. In the result only Parliament could authorise such a regime. Interestingly, Lord Brown at paragraph 86 considered that cases of this nature were inherently “quite simply untriable by any remotely conventional open court process”. He proposed “a radical solution” which has not in fact been adopted in the form and shape of the JSA 2013. At paragraph 69 of his judgment Lord Dyson JSC was more prescient:

“… I agree with the Court of Appeal that the issues of principle raised by the closed material procedure are so fundamental that a closed material procedure should only be introduced in ordinary civil litigation (including judicial review) if Parliament sees fit to do so. No doubt, if Parliament did decide on such a course, it would do so in a carefully defined way and would require detailed procedural rules to be made … to regulate the procedure.”

The JSA 2013 received Royal Assent on 25^th April 2013. My attention was drawn by Ms Kate Grange QC to the Explanatory Notes, which are admissible in these proceedings to the extent that they throw light on the mischief and purpose behind the enactment of this piece of legislation. Paragraphs 16 and 17 of these notes are particularly germane:

“16.

The Green Paper considered that in cases involving sensitive material the court may be prevented from reaching a fully informed judgment because it cannot hear all the evidence in the case. Under the current system, the only method available to the courts to protect material such as intelligence from disclosure in open court is through public interest immunity. A successful public interest immunity application results in the complete exclusion of that material from the proceedings. Any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the proceedings.

17.

The difficulty identified by the Green Paper was that the Government could be left with the choice of causing damage to national security by disclosing the material or summaries of it; or attempting to defend a case with often large amounts of relevant material excluded. If the material cannot safely be disclosed, the Government may be forced to concede or settle cases regardless of their merits and pay compensation, or ask the court to strike out the case. Most significantly, claimants and the public may be left without clear findings where serious allegations are made because the court has not been able to consider all the evidence.”

In my view, it is clear from these paragraphs (in particular, from the final sentence of paragraph 17) that the policy decision being made was that the only satisfactory channel through the Scylla of public interest immunity and the Charybdis of disclosing material inimical to the interests of national security (or the equally unpalatable, albeit different, consequences of not disclosing that material) was by the legislative creation of a closed material procedure. Further, by paragraph 73 of the Explanatory Notes:

“Subsection (5) [of section 6] states that the second condition is that a declaration would be in the interests of the fair and effective administration of justice in the proceedings. The judge would consider this in the circumstances where open disclosure of relevant material would be damaging to the interests of national security. [The Minister of State] indicated in Commons Committee that, “in examining that question [of whether a CMP would be fair and effective], the court will want to focus on what is necessary for resolving the issues in the case before it. In particular, it should focus on the relevance of the sensitive material to the issues in the case”.”

Understandably, Ms Grange placed heavy reliance on this passage, especially on the equation of “fair and effective” with concepts of necessity and relevance. But although I am entitled to have some regard to the Minister’s view in the context of the statutory purpose and mischief the Act is designed to address, these notes cannot be determinative of the issue of construction which lies at the heart of the issue I am required to resolve.

This brings me conveniently to the relevant provisions of Part 2 of the JSA 2013.

Under Part 2 of the JSA 2013, section 6 is the gateway to the introduction of a closed material procedure in any given piece of civil litigation, including judicial review proceedings. The court may make a declaration “that the proceedings are proceedings in which a closed material application may be made to the court” if two conditions are fulfilled. The first (see section 6(4)(a)) is that “a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person” were it not for public interest immunity or any statutory exclusionary provision. Section 6(7) specifies that the court should not consider making a declaration under this section unless it is satisfied that the Secretary of State has considered, and ruled out, the making of a claim for PII. The second condition (see section 6(5)) “is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”. At the section 6 stage the court makes the relevant assessment on the basis of a sample of the material (see section 6(6)).

Pursuant to section 7, the court must keep the section 6 declaration under review and may revoke it at any stage (sub-section (2)), and “must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed” (sub-section (3)). The test for revocation under both these sub-sections is the same: if it is no longer in the interests of the fair and effective administration of justice in the proceedings. Unsurprisingly, therefore, the test for revocation in the context of a relevant adjudication (see section 7(4)) is the same as the test for imposition, subject to the requirement being affirmative for the latter and negative for the former. Moreover, at the revocation stage the court is required to consider “all of the material that has been put before it in the course of the proceedings” (see section 7(5)).

By section 8:

“Determination by court of applications in section 6 proceedings

(1)

Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 (“section 6 proceedings”) must secure—

(a)

that a relevant person has the opportunity to make an application to the court for permission not to disclose material otherwise than to—

(i)

the court,

(ii)

any person appointed as a special advocate, and

(iii)

where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State,

(b)

that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative),

(c)

that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security,

(d)

that, if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party’s legal representative),

(e)

that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security.

(2)

Rules of court relating to section 6 proceedings must secure that provision to the effect mentioned in subsection (3) applies in cases where a relevant person—

(a)

does not receive the permission of the court to withhold material, but elects not to disclose it, or

(b)

is required to provide another party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.

(3)

The court must be authorised—

(a)

if it considers that the material or anything that is required to be summarised might adversely affect the relevant person’s case or support the case of another party to the proceedings, to direct that the relevant person—

(i)

is not to rely on such points in that person’s case, or

(ii)

is to make such concessions or take such other steps as the court may specify, or

(b)

in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised.”

By section 11(1), the rule-making power must have regard “to the need to secure that disclosures of information are not made where they would be damaging to the interests of national security”. Further, by section 14(2):

“Nothing in sections 6 to 13 and this section (or in any provision made by virtue of them) –

…

(b)

affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in the proceedings, or

(c)

is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention.”

I have also been referred to CPR Part 82 which sets forth a comprehensive procedural code for section 6 proceedings, closed material applications in such proceedings, and applications under sections 6(2) and 7(4). I bear Part 82 in mind, although the interpretative exercise I am being asked to undertake requires me to focus on the provisions of primary legislation.

Mr Squires developed his case under the rubric of his third and fourth propositions (see paragraph 7 above) in the following way. First of all he submitted that the common law clearly recognises, or vouchsafes, a “core minimum of disclosure” in certain categories of case, of which the instant case was a clear example. In support of that submission he relied on the decision of the Court of Appeal in R (Khaled) v Secretary of State for Foreign and Commonwealth Affairs [2012] QB 477 (i.e. this case at an earlier stage), in particular Sedley LJ at paragraphs 4, 8, 24 and 26, Smith LJ at paragraph 31 and Lord Judge CJ at paragraph 32; and on the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, in particular Lord Phillips at paragraphs 51 and 59, Lord Scott at paragraphs 96 and 97, and Lord Hope at paragraphs 82 and 84.

Next (and here Mr Squires was moving on to his fourth proposition) he submitted that the effect of section 7(3) of the JSA 2013 was that, once the court was in a position to review all the closed material, it was required to address the essential question: is it (still) in the interests of the fair and effective administration of justice in the proceedings that the Claimants’ entitlement to the core minimum of disclosure be denied? Mr Squires sought to analyse this essential question further in the following way:

Mr Squires referred me to a number of authorities about which he made two basic points. Either these were cases decided under a different statutory regime (lacking provisions analogous to section 6(5) and 7(3)), or they did not address the specific submission he was making in the instant case, namely that section 7(3) is the channel along which the common law passes.

It is unnecessary for me to set out the submissions of Ms Grange for the Defendants. I will deal with these to the extent necessary when addressing the Claimants’ case. Further, I propose to address relevant authority at the conclusion of my discussion and analysis of these issues. I agree with Mr Squires that the submissions he has deftly advanced have not been previously considered.

At the heart of the Claimants’ argument lies the proposition that the common law, to the extent that it recognises an entitlement to a core minimum of disclosure in this class of case, is effectively preserved by section 7(3) of the JSA 2013. I cannot agree with Mr Squires that it is. My reasons are as follows.

First, the phrase “in the interests of the fair and effective administration of justice in the proceedings” has a unitary, autonomous meaning within section 7(3); and one which reflects the policies and objects of Part 2 of the JSA 2013, which is to make provision for a closed material procedure if certain conditions are met. Parliament has decided “in a carefully defined way” (per Lord Dyson) to create a self-contained system for the resolution of civil disputes involving the executive where the latter would otherwise either have to claim PII for material whose revelation would harm the interests of national security or concede the litigation, or the court would have to strike out the proceedings as being untriable. That system is deemed to be one which serves the interests of the fair and effective administration of justice, provided of course that specific, relevant preconditions are met in the case under consideration. The closed material procedure is, therefore, the policy judgment which the legislature has made having regard to that touchstone.

Secondly, and connectedly, the notion of the fair and effective administration of justice within this statutory scheme leaves no room, in my judgment, for the infiltration of common law principles which are inconsistent with it. I would reach this conclusion having regard just to the policies and objects of the JSA 2013 and the unitary, autonomous concept I have already mentioned, but my conclusion is also supported by narrower textual points:

I have not overlooked that there are situations where the common law goes further than the relevant statute. The most authoritative analysis remains that of Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, at 560D – 562E. What was crucial in Doody was that the relevant statutory provision, section 34 of the Criminal Justice Act 1991, could not be read as exhausting the rights stemming from the general principles of fairness. In my view, the instant case is different because the invocation of the admittedly narrow common law right on which the Claimants rely would be flat contrary to the express language of section 8 and section 11(1) of the JSA 2013.

Mr Squires also reminded me of the foundational decision of the House of Lords in R v SSHD, ex parte Simms [2000] 2 AC 115 on the principle of legality, but it is axiomatic that this applies only where statutory language is general or ambiguous. In my judgment that is not the case here.

Thirdly, the purpose of section 7(3) is narrower than the Claimants contend. If a section 6 declaration may be made on a limited or sample basis, there is every good sense in enacting a provision which enables the court to revisit the issue on the basis of the full picture. I invited Ms Grange to give me examples of situations where the court might make a revocation order under section 7(3). She submitted that circumstances might arise where the section 6 declaration was no longer necessary because most or all of the material had been placed in open following the procedures contemplated by sections 6 and 8 of the JSA 2013 and set out more fully in the procedure rules. I agree that this would be one example. Another might be a case where the court determines that the litigation can be fairly tried on issues where no closed material is relevant, because the issues where such material is relevant are subordinate, peripheral or unlikely to advance a claimant’s interests to any substantial extent. In my view it is unnecessary and inappropriate to attempt to provide an exhaustive list of such examples, but the underlying principle must be that the rationale for the closed material procedure has disappeared.

Ms Grange submitted that there was a clear temporal schism (my formulation, not hers) between section 8 and section 7. I am not sure that there is. I note the opening clause in section 7(3) (“once the pre-trial disclosure exercise has been completed”), but there is also a review power under section 7(2). The test under these two sub-sections must be the same.

Ms Grange also submitted that the concept of fairness entails that regard must be paid to the interests of all parties to the proceedings, and that situations may arise where it would be fair to a claimant to adopt a closed material procedure because otherwise documents which would be favourable to his case would have to be removed from scope by operation of PII. I would agree, although I would not accept that the issue of fairness falls to be addressed on a case-by-case basis. In my judgment, the better analysis is that the concept of “fair and effective” etc. represents Parliament’s overall balanced evaluation of how the interests of justice should operate in this class of case. Part of that balance includes a recognition that there might be cases where a closed material procedure is preferable to PII, but the point I am making is that the policy balance is being struck ab initio, not ex post. Any fact-specific analysis is on the different and specific basis I have already identified under paragraph 29 above.

Accordingly, I would hold, approaching the analysis free from any authority, that there is no scope for the introduction of common law concepts through the gateway of section 7(3) which would be inconsistent with the overall scheme of the JSA 2013. The Claimants’ putative entitlement to a core minimum of disclosure would be inconsistent with the express requirement to safeguard national security.

I turn now to consider the authorities to which I was referred.

The issue in Khaled (loc.cit.) was whether Article 6 applied to these proceedings, and the Court of Appeal held that it did not. All three members of the court considered that the position either was or probably would be the same at common law, although the point did not arise directly for decision. In any event, for obvious reasons the Court of Appeal could not have been applying its mind to the effect of the JSA 2013 on any common law principles.

The same fundamental points fall to be made about AF (No 3) in the House of Lords. I would tend to agree with Mr Squires that both Lord Hope (at paragraphs 82-84) and Lord Scott (at paragraph 96) were adverting to what the position might be at common law, but this case was specifically about Article 6 and self-evidently was not about the JSA 2013.

Both parties made submissions on the following authorities: in chronological order, W (Algeria) v Home Secretary [2010] EWCA Civ 898 (dealing with the statutory code in the SIAC Act 1997), Bhutta v HM Treasury [2011] EWHC 1789 (Admin) (dealing with the Counter-Terrorism Act 2008), Mastafa v HM Treasury [2013] 1 WLR 1621 (agreeing with Bhutta, albeit obiter), R (Sarkandi) v Foreign Secretary [2016] 3 AER 837, Kamoka v Security Service [2015] EWHC 3307 (QB) and R (K) v Defence Secretary [2016] EWHC 1261 (Admin) (in the Divisional court) and [2017] 1 WLR 1671 (in the Court of Appeal).

In my view, W (Algeria), Bhutta and Mastafa not being cases on the JSA 2013, they may be addressed quite briefly. I would agree with Ms Grange that they support the proposition that the statutory scheme comprises an exhaustive, self-contained code; but Mr Squires would agree with that. In none of these cases does one see a provision similar to section 6(5) and section 7(3) of the JSA 2013. Where I would disagree with Mr Squires is that the absence of these provisions somehow avails his case as to the precedential effect of these decisions: this authority is neutral.

The issue in Sarkandi was whether the judge’s decision to make a section 6 declaration properly respected the Claimant’s Article 6 rights; and the Court of Appeal held that it did. Thus, the case was not about the scope of the common law and its interplay with section 7(3). Paragraph 58 of the judgment of Richards LJ is generally supportive of my analysis of the Parliamentary purpose. Mr Squires relied on paragraph 59:

“In the context of the present case I would place particular emphasis on the provisions of section 8 of the 2013 Act and the rules made under it to the effect that if the court gives permission for material to be withheld, it must consider requiring the Secretary of State to provide a summary of the material to the claimants and their open representatives, and that if the Secretary of State elects not to provide such a summary the court may give directions that he is not to rely on the relevant points in his case or is to make concessions. As I have said, those provisions must be read and applied in a manner consistent with Article 6 and, therefore, the disclosure requirements laid down in AF (No 3).”

However, the Court of Appeal was assuming for the purposes of its judgment that Article 6 applied: see paragraph 22. If it did (and I note that Khaled in the Court of Appeal does not appear to have been cited), the provisions of the Act would have to be read in line with the requirements of the Convention. I agree with Ms Grange that Sarkindi says nothing about any possible reconciliation between the provisions of the Act and the common law.

Kamoka was also a decision on the JSA 2013 and it was one which did address the common law. At paragraph 20 of his judgment, Irwin J said as follows:

“My conclusion therefore on disclosure under the 2013 Act is, firstly, that common law must introduce fairness so far as possible and so far as is consistent with the provisions of the Act. It cannot mean common law imports a requirement to disclose an irreducible minimum of information, even if that were an incursion on the protections in the Act. I am certain that the common law does mean that the process of disclosure should reveal to the claimants as much as possible, consistent with the provisions of the statute. Again, common law means that, where material cannot be revealed in full, it should be summarised as fully as possible consistent with the statute. Beyond that common law cannot go.”

Plainly, this paragraph lends considerable support to Ms Grange’s argument; but in my view it is not decisive. Irwin J was not being invited to consider Mr Squires’ novel formulation, as was also the case in Khaled v The Security Services and others (loc.cit.) where he reiterated what he had said in Kamoka.

The same point may be made about K, both in the Divisional Court (Simon LJ and Ouseley J) and the Court of Appeal. At first instance Simon LJ held (at paragraph 20) that there was no common law duty of fairness akin to Article 6, and that disclosure was entirely governed by the provisions of the JSA 2013 within the context of the closed materials procedure. In the Court of Appeal Longmore LJ expressed the obiter opinion (at paragraph 22) that the notion that there could be a “free-standing right of disclosure” (i.e. at common law) was “most unlikely to be correct”. Again, the court was not considering Mr Squires’ new argument.

Although the general tenor of the authorities is supportive of Ms Grange’s case, I have found nothing in them which binds me directly.

The Claimants are not entitled to a core minimum of disclosure at common law because this would be to contradict the provisions of the JSA 2013.

ABDULBAQI KHALED

ELMABRUK MAFTAH

ORDER

__________________________