The London Borough of Tower Hamlets v M & Ors

This judgment concentrates primarily upon the application of the Secretary of State for the Home Department (SSHD) for public interest immunity (PII). So as to resolve that claim, I read a large quantity of written submissions, there was a brief OPEN hearing to discuss the framework of the hearing, likely next steps and then I heard Ms Wheeler QC in CLOSED session.

The prelude is contained within my judgment of 8 December 2016 – Re C (a child) [2016] EWHC 3171 (Fam).

Events since the December hearing require discussion given that the sense amongst the parties to the care proceedings is that the SSHD’s action or inaction has led to avoidable delay. As Ms Morgan QC (on behalf of the local authority) points out, the SSHD has not complied with disclosure orders made as long ago as 4 October 2016. The order consequent upon the judgment of December 2016 required the SSHD to make any application for PII and / or a declaration pursuant to s.6 (2) of the Justice and Security Act 2013 (JSA), on notice to all parties, by 20 January 2017.

On 20 January, the SSHD provided an ‘open gist’ document which summarised the facts and the chronology leading to the refusal of the father’s application for a passport. In an accompanying letter, the Government Legal Department (GLD) confirmed that it did not intend to invite me to make a declaration under the JSA or seek to introduce evidence into a closed material procedure (CMP). It was said that the SSHD continued to “make preparations for a potential PII application” but there were “a number of complications” that the GLD had been unable to resolve.

The letter referred to the listed hearing on 25 January, stated that the GLD was “mindful of the need to progress the proceedings” and requested a CLOSED hearing of an hour and a half to enable Counsel for the SSHD to make submissions in relation to sensitive material. It was anticipated that some CLOSED material would be made available to me in advance of the hearing.

In response to that letter, I received and read a very small bundle of CLOSED material on the morning of 25 January prior to the OPEN hearing. With the benefit of hindsight, I should not have done so prior to hearing from the parties. It rapidly became apparent that the father’s legal team, then headed by Ms Cover, objected to a CLOSED hearing, questioning under what procedure one was sought. A similar challenge was raised by Ms Fottrell QC who then represented the local authority. The suggestion was that by sending CLOSED documents to the court, the SSHD was attempting to “initiate a closed material procedure notwithstanding that no application for one had been made.”

The other limitation of the hearing on 25 January was that for reasons of over subscription it would not have been possible to convene a CLOSED hearing. There was no available court room.

In response to the submissions of Ms Cover and Ms Fottrell, I adjourned the hearing on 25 January and requested written submissions from Ms Wheeler QC as to the basis upon which a CLOSED hearing was required. The parties were given an opportunity to respond in writing. The case was listed again on 15 March 2017.

Ms Wheeler’s written submissions of 6 February made clear that the holding of a CLOSED hearing and consideration of CLOSED documentation is an inevitable and unexceptional vehicle to air disclosure issues used routinely in all types of legal proceedings. Without such a facility, Ms Wheeler suggested, there would be no means for those seeking to withhold material to explain the legal basis of their doing so. Of necessity, it was said, these are ex parte hearings where the handling of CLOSED documentation requires special facilities. The situation at the time those submissions were prepared was that the SSHD was considering whether to make an application for PII.

The parties provided detailed written submissions in response from which, in varying degrees, there was palpable discontent that the SSHD’s position continued to be obscure and failed to adhere to established processes. To take but one example, Mr Twomey QC, on behalf of the father, complained that the SSHD was seeking “to set aside, vary or render nugatory the order of 4 October by an approach which lacks rigor, fairness and / or any prior agreed planning.” He continued by suggesting that the process I was being invited to adopt was “neither the well-established process where PII is asserted nor the closed material process under the JSA 2013.” Any consideration of relevant material, said Mr Twomey, must fall under one or the other; or the GLD must disclose the material as directed. He also submitted that any process adopted by the court must comply with the basic principles of natural justice and respect the parties’ rights to a fair trial. It was said that the SSHD’s approach was neither fair nor based upon principles of natural justice.

Whether as a direct result of the parties’ written submissions or not, the SSHD issued her application for PII on 7 March. Ms Wheeler argues, and the parties agree, that the majority of the points raised in objection to a CLOSED hearing were answered by the filing of the PII application. In particular, there was no opposition from any quarter to the suggestion that the application should be dealt with in a CLOSED hearing; and no party pressed for the appointment of a Special Advocate for the purpose of resolving the application.

I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.

There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.

At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.

The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.

By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was a PII Certificate containing the SSHD’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action.

It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.

Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.

As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.

As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.

Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.

In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.

No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.

There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

Within the December judgment, between paragraphs 13 and 18, I set out the key stages in the SSHD’s decision in relation to claiming PII or seeking a CMP.

Ms Wheeler’s open submissions of 14 March 2017 raised a number of preliminary matters, worthy of mention. First, that whilst a full damage assessment in CLOSED has been provided to me, the material which underlies the PII claim has not been included. The case law establishes that the Minister who signs the Certificate must see the material in order to assess sensitivity, the potential damage to the public interest (were the material to be disclosed) and to conduct the balancing exercise. The same imperative does not apply to the judge.

The second preliminary matter is that the SSHD has placed the Certificate, Ms Wheeler’s submissions and the gist (circulated on 20 January) in OPEN. The aim of that approach was to enable the parties, to the fullest extent possible, to know and be able to advance submissions in relation to the public interest factors pertinent to the Wiley balancing exercise.

There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.

Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.

On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.

Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.

Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).

I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.

The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.

To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).

The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.”

Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.

It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.

At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.

Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.

More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.

I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.

I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

Now that I’ve had the opportunity to discuss Mr Twomey’s questions (§7 (a) – (h) of his 27 February Position Statement) with Ms Wheeler in CLOSED session, I am able to provide albeit brief answers.

(a) I can confirm it is the case that, beyond what has already been provided in OPEN gist, the material over which PII is claimed cannot be disclosed for fear of a real risk of real damage to an important public interest, namely national security. (b) The balance does indeed fall in favour of there being no disclosure. (c and d) The SSHD cannot be more specific in OPEN about the nature of the harm or precisely how such serious harm would be occasioned because descending into those particulars would be liable to cause the very damage non-disclosure seeks to prevent. (e – h) The specific details sought in relation to the GLD’s letter of 20 January cannot be revealed in an OPEN judgment.

My responses to the other arguments put forward by the parties in relation to the Wiley balance are as follows. I am by no means convinced that care proceedings would conclude for want of threshold criteria in the absence of further disclosure from the SSHD. Nor do I agree that the local authority would be in no positon to safeguard the child or justify interference in his life. The requirement now is for scrutiny of the available evidence as the prelude to a decision as to whether an appropriate threshold criteria document can be formulated.

I have considered but can safely disregard Mr Twomey’s submission that the SSHD’s delay in making her application raises questions as to the merits of the claim. There is no basis for concluding that this is anything other than a meritorious application founded upon materials made available to me in CLOSED.

Nor do I have any reason, as Mr Parker suggests I may, to lack confidence in the SSHD’s evaluation. I do not view the PII claim as an ex post facto justification of her position. My sense is rather that the GLD has encountered real difficulty in knowing how to respond: (see §13 above).

In response to Mr Parker’s second point suggesting that the SSHD’s premise for her balancing exercise is flawed because she understands the local authority’s application is merely for a supervision order, my assessment is that the type of order sought would have made no difference. The galvanising imperative of protecting national security overrides other matters such as the appropriate order at the conclusion of proceedings.

The same is true for Mr Parker’s and Ms Morgan’s arguments relating to alternative potential safeguarding measures – the ‘Channel Programme,’ the ‘Desistence and Disengagement Programme’ and requiring the mother to voluntarily surrender her passport. There is obvious force in the submissions jointly made that such strategies would only become available if the parents were to agree. Without a consensus, there could be no mandate.

However, I do not accept that the balance in favour of disclosure is tipped or increased as a result of those factors. Again, protecting national security is the critical issue and outweighs the factors in favour of disclosure.

For all of those reasons, I uphold the SSHD’s claim for Public Interest Immunity.

With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore be used by) the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material does not advance an understanding of the parental relationship or contact with or intentions towards the child.

I am acutely conscious that paragraph 7 of the President’s Guidance – Radicalisation Cases in the Family Courts – dated 8 October 2015 reminds judges of the need to be alert to a range of matters. Those that seem to me to be of particular relevance are these –

It’s not difficult to identify what could have been done differently had there been a more timely and informative response by the GLD to the requests for disclosure. I do not believe that the orders were couched inappropriately widely. It was made clear that the SSHD was being asked only to reveal material which she was at liberty to disclose. It was difficult if not impossible to avoid seeking disclosure of material which may be subject to PII when the local authority (and I) had no basis for concluding that it did. Equally importantly, the GLD’s indications as to likely applications were imprecise and when timeframes were imposed to establish a concluded position, more often than not they were missed.

Whatever else results from this hearing, it is my hope that the SSHD will be more rapidly and decisively responsive to the family courts’ requests for engagement.