K, A & B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs

The Claimants have brought public law claims against the Defendants in relation to protection, relocation and compensation, claiming to have acted as covert human intelligence sources, CHIS, for the United Kingdom in Afghanistan. The claims are being considered under the Closed Material Procedure (CMP) in the Justice and Security Act 2013 (JSA). The background to these claims is more fully set out in the judgments of the Divisional Court [2016] EWHC 1261 (Admin) and of the Court of Appeal [2016] EWCA Civ 1149.

On 23 November 2016, the Court of Appeal allowed the Claimants’ appeal against the decision of this Court that Article 6 ECHR did not apply to those claims and that therefore no further disclosure was required for the purposes of s14 JSA 2013. The Court of Appeal held that the resolution of the public law claims constituted a determination of the Claimants’ civil rights and that “there will have to be whatever disclosure is necessary for the Claimants to have the ‘fair hearing’ to which Article 6 entitles them. If such disclosure cannot be agreed the case must be remitted to the Divisional Court for further hearing”, see [21]. At [30] Longmore LJ said, with the agreement of Treacy and Underhill LJJ, that Article 6 was applicable “to require further disclosure in principle”. Further disclosure could not be agreed and the case therefore returned to us for decision on that issue. The Divisional Court had concluded, and it was not at issue before the Court of Appeal, that all disclosure which could be given without harming national security had already been given.

On 26 January 2017, this Court heard submissions on the principles or approach to be applied to disclosure complying with Article 6. We did not hear submissions on what disclosure should be given on the application of such principles or approach as we considered should be adopted, although there was some discussion in a closed hearing about the practical implications. There was a suggestion that the Court of Appeal in the paragraphs cited above had expressed the view that some further disclosure was bound to be given. I do not consider that the Court of Appeal reached such a decision at all. It decided only that the issue of further disclosure had to be reconsidered in the light of its conclusion that Article 6 applied to the public law claims.

On 7 February 2017, the Court received a further note from Mr Watson for the Defendants drawing our attention to the decision of the Court of Appeal on 27 January 2017 in AZ (Syria) v SSHD [2017] EWCA Civ 35, a decision on disclosure in the context of the SSHD’s refusal to issue a Geneva Convention travel document to a recognised refugee. Mr Watson argued that this added some force to his general approach. Mr Owen QC replied on behalf of the Claimants on 15 February 2017.

The root question is what disclosure is required for there to be a “fair and public hearing” of the claims, which will determine their civil rights in relation to the public law claims. I first need however to make clear the scope of those claims. This sets the issues for the Court in relation to which Article 6 is to be applied.

The Court of Appeal described the public law claims in paragraphs 1 and 2 of its judgment. These are that there was or should have been a policy for the protection, relocation and compensation for CHIS, including once the Internal Security Assistance Force (ISAF) had withdrawn from Afghanistan, pursuant to which the Defendants should relocate them, paying the costs, together with compensation for the disruption to life and the risks to safety. Their public law claims for relief raise issues as to the existence of any policy or of a duty to have one, its meaning or scope if one exists or ought to have existed, the lawful application of any policy, if it applied to the Claimants or ought to have done, and what any might entitle them to. Rationality may not be the entirety of the claim but it is a very significant part of it.

The Claimants’ skeleton argument asserted that the public law claims involved what they described as a policy-based claim (which is correct), common law protection, human rights claims and breach of RIPA duties, (which they do not). The Claimants are not pursuing their substantive ECHR claims before this Court; claims under Articles 2, 3 and 8 are not now being pursued in these proceedings, if now pursued at all. Private law claims for the breach of the duty of protection, breach of an asserted contract, and negligent misrepresentation were stayed. There is no separately pleaded RIPA ground, even in the amended claim form.

The Court of Appeal in paragraph 21 interpreted s14(2) JSA as requiring “whatever disclosure is necessary for the Claimants to have a “fair hearing” to which Article 6 entitles them” and at paragraph 15 referred to the Claimants’ submission that s14(2)(c) means that CPR 82.13 in particular must be read as requiring disclosure. That requires some care in the context of the scheme of the JSA. The duty in s14 is an interpretative duty on the court. The duties on the court, which have to be interpreted, are not duties to order disclosure; that is common but misleading parlance. The actual duties to be interpreted are to prevent disclosure harmful to national security.

S14 relates to the actions comprising the powers and duties in ss.6-13 JSA - or CPR 82, as a “provision made by them.” This interpretative duty can affect the powers in s7, revocation of the CMP, when considering whether the CMP remains in the interest of the fair and effective administration of justice in the proceedings. The duty in the JSA itself is quite clear: s6(4) requires there to be no disclosure which harms national security and in those circumstances the first condition for a CMP is satisfied. Likewise, the provisions in relation to rules of court, s8(1)(c) and s11(1), require provisions in the CPR to prevent disclosure of material damaging to national security. So, the structure of the JSA, and it is reflected in CPR 82, is for the court to permit the withholding of material and a requirement not to permit its disclosure where it would harm national security; there are no provisions at all for the disclosure of such material to be ordered. S8(2) is not about ordering the disclosure of material harmful to national security, but is about the consequences if the Secretary of State does not disclose material which he has been refused permission to withhold. He cannot rely on it to support his case. The JSA permits him to decide that the court’s appraisal of whether disclosure would harm national security is wrong, but he then pays the price that he cannot rely on the material.

CPR 82 continues that structure, as the JSA requires of it. By CPR 82.2 (2), information must not be disclosed if it would harm national security. There are no rules permitting, let alone requiring disclosure, to be made if the court considers that the disclosure of the material would harm national security, but its disclosure is required to meet Article 6 in the CMP. A court withholds permission to refuse to disclose; the Secretary of State may decline to disclose under CPR 82.14(9)(a), but CPR 82.14(9)(b)(ii) has the consequence that if so declining, he may not rely upon that material.

How therefore should the JSA and CPR be interpreted in accordance with the s14 duty? The Court should ensure first that there remains no material which can be disclosed without harm to national security. It must then identify what material needs to be disclosed for the purpose of Article 6. It then refuses permission to withhold that material, reading the clear obligations to the contrary as subject to the requirement that they do not apply if disclosure is necessary for the purposes of Article 6. That does not alter the right of the Secretary of State to refuse to disclose it. The court does not order disclosure; a refusal of disclosure is not a breach of a court order; the Secretary of State is entitled to decide not to disclose that material, but he cannot then rely on it, whether the case is continued in CMP or not. The decision on what material the Secretary of State should not be permitted to withhold is made without regard to where that would leave the litigation, in the CMP or with the prospect of revocation, an issue on which the parties differed to a degree. After the Secretary of State has reached a decision on disclosure, the court may need to consider whether the CMP should be revoked under s7. This would be done with knowledge of the extent to which Article 6 required disclosure which the court had not received. A decision on revocation may involve comparing the limitations of a trial within the CMP, with the limitations on a trial were the case taken out of the CMP. Article 6 could thus simply transfer the case back to the limitations of the open track.

There is a spectrum of cases and a spectrum of disclosure rather than a hierarchy; that much is clear from Kiani v SSHD [2015] EWCA Civ 776, [2016] QB 595, and AZ (Syria) v SSHD [2017] EWCA Civ 35. There is certainly an end of the spectrum where the requirement will be that the gist or essence of the case be disclosed. There are also cases such as AZ itself where the court concluded, [37], that an outline of the grounds given to AZ, coupled with the protections of the CMP procedure, satisfied the procedural requirements of Article 47 of the EU Charter of Fundamental Rights and Freedoms; there was no need for the gist always to be disclosed to comply with Article 6. There are other cases, Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 and Kiani, where it appears that an outcome between the two has been achieved, with no very clearly enunciated intermediate test. But they are nonetheless cases in which the disclosure received, allied to the circumstances of the case and with the protection of their equivalents to the CMP, had been found adequate for the purposes of Article 6.

If this case is at the Control Order or asset-freezing end of the spectrum of interference with human rights, the principles laid down in AF (No.3) v SSHD [2010] 2 AC 269; [2009] UKHL 28 apply. None of the later authorities take issue with that. These were summarised by Lord Phillips at [59] in these terms:

“This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

That test was treated by the Court of Appeal in Bank Mellat v HM Treasury(No.4) [2015] EWCA Civ 1052; [2016] 1 WLR 1187 at [34] as meaning that sufficient disclosure had to be given to enable the recipient to give sufficient instructions to deny or refute, so far as possible, the essential allegations against him. It also appears that in cases to which ZZ (France) v SSHD(No.2) [2014] EWCA Civ 7, [2014] QB 820 applies, it is the gist which is required, though these claims do not fall within the ZZ category.

Mr Watson identified two cases which he said illustrated the spectrum of disclosure, was context and case specific, where the claimants had voluntarily taken work where national security vetting was required. This was akin to what the Claimants here were alleging. The first was Tariq, above. Much of Lord Dyson JSC’s reasoning in that case was relied upon by Lord Dyson MR in Kiani, above. Both were employment cases involving immigration officers dismissed from employment by the Home Office which said that dismissal was for reasons of national security and the loss of security clearance, without giving significant particulars of why, though circumstances meant that some fairly straightforward inferences could be drawn by the employees; and they were not completely in the dark. They brought employment tribunal proceedings alleging unfair dismissal, and racial and religious discrimination. At [21] in Kiani, Lord Dyson said this of the Supreme Court decision in Tariq:

“It held (by a majority) that there was no absolute requirement that the detail of allegations, which would be revealed in normal litigation, should be disclosed where the interests of national security required secrecy. The fundamental right to a fair trial had to be balanced against the strong countervailing public interest in maintaining national security. There was an important distinction between the right to a fair hearing (which is absolute) and the right to minimum disclosure of relevant information (which is not). On the particular facts of that case, the disadvantage to the claimant of withholding secret material was outweighed by the paramount need of the Home Office to protect the integrity of the security vetting process.”

He then referred to what he had said in Tariq at [140] and following. The requirement of procedural fairness did not impose a uniform unvarying standard to be applied irrespective of context, facts and circumstance. In that case the question was whether scrutiny by an independent court possessed of all the material with testing by a Special Advocate in closed session was sufficient to counter-balance the lack of full and informed participation on the part of the claimant where the gist of the case had not been disclosed. At [147] in Tariq, Lord Dyson said that in many cases an individual’s case could be prosecuted effectively without his knowing of the sensitive information which could not be disclosed to him but it was for the court, in deciding how to strike the balance between the rights of the individual and other competing interests, to consider whether scrutiny by an independent court and the use of Special Advocates sufficiently counterbalanced the limitations on the individual’s Article 6 rights. However, where the context of the proceedings involved the liberty of the subject, it was not sufficient if the claimant were unable to give full instructions to the Special Advocate; the AF (No.3) approach applied.

At [23] in Kiani, he summarised the position for cases other than those where AF (No.3) applied as follows:

“In summary, therefore, the requirements of article 6 depend on context and all the circumstances of the case. The particular circumstances in Tariq included the fact that (i) it did not involve the liberty of the subject; (ii) the claimant had been provided with a degree of information as to the basis for the decision to withdraw his security vetting: he was not completely in the dark; (iii) there was real scope for the special advocate to test the issue of discrimination without obtaining instructions on the facts from the claimant; and (iv) this was a security vetting case and it was clearly established in the Strasbourg jurisprudence that an individual was not entitled to full article 6 rights if to accord him such rights would jeopardise the efficacy of the vetting regime itself (para 159).”

AZ (Syria) concerned rights said to arise under EU law; the CJEU jurisprudence was therefore considered and ZZ (No.2). Burnett LJ confirmed, at [23], that AF (No.3) disclosure was required for a Control Order which imposed restrictions that fell short of deprivation of liberty but it was not a universal test for all Article 6 purposes. There was no hierarchy of cases, no single standard and no irreducible minimum disclosure always required. At [29]-[30], he said this:

“In my judgment the touchstone to the degree of disclosure required by both the ECHR and EU law viewed in light of the Charter is the nature and impact of the decision in question in the sense described in Kadiat paragraph 102. The disclosure required in the AF (No. 3)case under the ECHR and the ZZ case under EU law is reserved for cases which concern objectively high level rights. Nomenclature in this area is apt to confuse. All the rights guaranteed by the ECHR (more formally the Convention for the Protection of Human Rights and Fundamental Freedoms) and by the Charter (more formally the Charter of Fundamental Rights of the European Union) are ‘fundamental’. Yet as the jurisprudence of both the Strasbourg and Luxembourg courts recognise some of those rights admit of no qualification or derogation, and those which may be qualified demand different levels of justification from decision makers in support of interference. Within the rights conferred by the EU, which cover a myriad of activities, the flexible approach to article 47, whether or not the instrument in question confers independent procedural rights, also creates a sliding scale for the purposes of disclosure just as has been recognised by the Strasbourg Court for the purposes of article 6 ECHR.

30.

It is clear that the disclosure required by the Luxembourg Court in the ZZcase was conditioned by two important considerations. The first was that the decision interfered with what is regarded as one of the most important rights conferred upon its citizens by EU law, namely free movement. Secondly, the relevant directive contained explicit procedural safeguards which conferred a right to information, derogation from which had to be strictly construed.”

He then distinguished AZ because of the nature of the rights and the existence of specific procedural protections.

Mr Owen contended that the issues raised in the claim were of a high level of seriousness, akin to those involved in a Control Order or an Asset-freezing Order case. This was because the public law claim involved the assertion of risks to life and limb, against which the Defendants were obliged to afford or consider protection under a policy which they either had or ought to have had. This, he submitted, was very different from the employment cases. On the spectrum of cases it was at or close to the highest level of seriousness and the essence of the case had to be disclosed.

The Defendants had said in open that the Claimants were considered not to be “telling the truth in the relation to material and core points of their claim [and], are apparently deliberately putting forward false evidence in order to secure the financial advantage and/or internal relocations sought”. There was, however, no explanation in open of the ways in which or for what reason the Defendants had reached that conclusion. The Claimants needed to be given some specific information as to which parts of their evidence were not believed and why, and only the Claimants could answer such information. Special Advocates could not otherwise respond to such allegations in a closed hearing, and the independent expert instructed on behalf of the Claimants could not give effective evidence in closed hearing. The test should be whether the Claimants had been given sufficient disclosure to enable them to answer the case being made against them in response to their claims. No balancing exercise between that interest and the interests of national security was required. But if it were required, the interests at stake for the Claimants, on their cases, which at this stage was what mattered, were high.

Mr Watson for the Defendants submitted that it was not alleged that the Defendants sought to restrict severely the rights of the other party, their liberty, freedom or property, or to take other action against them. There was therefore no irreducible minimum disclosure required by Article 6. There was no claim under the ECHR. Rather, it was for the court to strike the balance between the interests of national security upon which courts place great weight, preventing further disclosure, and the need for fairness in justice to the Claimants. The maintenance of NCND was important in that balance for the UK’s national security, which would include all those who might be or become, or who might be alleged to be, CHIS. That balance had to be struck taking account of all the circumstances: the nature of the interest being pursued through the litigation, the ability of the Defendants to defend the claim and the extent of the protections available through Special Advocates within the CMP. The Claimants’ claim was that they had voluntarily undertaken dangerous work as CHIS. This was solely a judicial review and rationality challenge. The Claimants also had the benefit of an outside expert with access to the closed material.

The questions to my mind are: is this case within the range to which AF (No.3) disclosure applies? If not, what is the alternative test or approach which applies for the purposes of a “fair hearing” for the purposes of Article 6?

Although there has been no specific invocation of Articles 2 and 3 ECHR before this court and the right is one asserted at public law which involves a degree of evaluation susceptible to judicial review, the claims are based on asserted public law obligations in relation to the risk of harm to life and limb. This is at the higher end of the spectrum or scale when it comes to procedural fairness. It is, in my judgment, at a higher level than the employment context in Tariq and Kiani but it is not at the level of a Control Order, or asset freezing or other restriction such that AF (No.3) disclosure is required. Executive action has not been taken against the Claimants to restrict their liberty or finances or movement rights. Nor are the asserted risks from others the result of action taken by the Defendants against the Claimants. They are ongoing protection claims in circumstances where the risks are said to arise from what others might have done or might do.

Accordingly, I conclude that AF (No.3) disclosure does not apply. However, Tariq and Kiani do not require that there be no disclosure which might harm national security, for the purposes of Article 6. A balance may have to be struck between the significance of material not otherwise disclosed to the Claimants and the harm its disclosure might create for national security. In striking that balance the following contextual points need to be weighed.

First, all issues relating to the existence of a policy or the duty to have a policy, its scope, meaning and effect are ones on which the instructions of the Claimants are irrelevant to the disclosure issues, because the Special Advocates can handle them without the need for any disclosure to the Claimants who could add nothing by way of instructions. That is a significant part of the claim. Second, the context also includes the fact that the Claimants at least have been able to give their full account of what they themselves say are the risks that they have or will face, and in addition, they have answered the questions which Mitting J ordered to be asked of them.

Third, it is for the Defendants to appraise those accounts, subject to the Court’s review. The area on which this disclosure issue focuses is the basis upon which the Claimants’ credibility was rejected, and how much of that must be disclosed for the purposes of a response under Article 6. The Court, however, would not be not engaged in a primary fact finding role in respect of what the Claimants say about their lives; it would be reviewing, with whatever degree of scrutiny is required, the lawfulness (principally the rationality), of the Defendants’ appraisal of the material before them. However, the Special Advocates can advance no positive case based on a factual response without instructions on the issues, which can only come from the individual Claimants.

Fourth, the nature of the claim is important, towards the higher end of the spectrum, as I have explained. Fifth, so too is the particular manner in which national security arises, as referred to in Tariq, and ZZ in the Court of Appeal. Strasbourg has held that a Claimant cannot receive the full rights of disclosure of the gist if to accord such rights “would jeopardise the efficacy of the vetting regime itself”, see Kiani [23], citing Tariq [159]. In my judgment, where Claimants make a claim that arises out of their asserted voluntary engagement with national security work, there must be a necessary acceptance on their part that the procedure to be adopted, for a fair consideration of any claims about how they have been or ought to have been treated, will not jeopardise the very system with which they claim to have become voluntarily and knowingly involved. The claim to such a relationship cannot be made without acceptance of the correlative restriction on breaching national security inherent in the very existence of such a relationship. The NCND policy is one of the building bricks in the protection of those who are or who are said to be CHIS, as the Claimants must have understood and on which they in effect acknowledge they depend; and it derives its cohesive strength from its consistent application. On what the Claimants assert, they cannot be in a better position in terms of disclosure than those who undertook employment in security-vetted work, who must have known that there were limits on what could be disclosed in the event of a dispute.

Reduction of the gap between what can be disclosed of the significant areas where they are disbelieved without harming national security and sufficient disclosure for Article 6 may be a matter, at least in the first place, of what can be done in practice to maximise disclosure and to minimise harm.

There is no closed judgment.

I agree.