Beth v The Security Service

This case concerns a claim by the Claimant “Beth” that her human rights have been breached by the Security Service (‘SyS’ or ‘the Respondent’) by reason of the failure to protect her. Beth was in a relationship with X for a number of years and claims he was seriously abusive to her. Beth says that X was a Covert Human Intelligence Source (‘CHIS’) who was working for the SyS.

There were two OPEN issues that fell for determination at this interlocutory case management hearing. Firstly, whether the Respondent should be allowed to rely on the policy of Neither Confirm Nor Deny (‘NCND’) in respect of whether X was or was not a CHIS. Secondly, the degree to which information about X should be restricted so that he cannot be identified as a result of these proceedings (it is not in dispute that his name should be anonymised in the OPEN proceedings in public).

The first issue is in OPEN and is dealt with in this judgment. The second issue is in PRIVATE and is dealt with in a separate judgment. There is also a CLOSED judgment.

Beth’s allegations have already been the subject of extensive litigation in the King’s Bench Division of the High Court. The BBC sought to report Beth’s allegations together with other facts about X and the Attorney General applied for an injunction to prevent them from doing so and restrict what could be reported. Chamberlain J gave a series of judgments, including four OPEN and public judgments: Her Majesty's Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 380 (QB); [2022] EWHC 826 (QB); [2022] 4 WLR 74; [2022] EWHC 1189 (QB); and [2022] EWHC 2925 (KB).

In those judgments Chamberlain J allowed the BBC to publish certain material but restricted information about X, including a schedule of identifying characteristics, in order to protect X’s identity and to protect X from a risk of harm.

In her claim form and witness statement Beth has set out the history of her relationship with X. She says that X told her on a number of occasions that he was a CHIS working for the Respondent and that she had strong reason to believe that this was true. In its Detailed Grounds of Resistance the Respondent has pleaded NCND to this allegation.

Ms Kilroy, on behalf of Beth, submits that the Respondent should be required by the Tribunal to make a positive pleading, as to whether X was or was not a CHIS.

It is agreed that if X was publicly identified that could put his safety at serious risk. This matter was considered in detail by Chamberlain J and he determined that this was established.

The need to protect X’s identity has led to agreement that parts of any OPEN hearing which could give rise to the identification of X will be held in PRIVATE, with the public excluded, and Beth and her legal team bound by orders that restrict onward publication of X’s identifying characteristics.

The use of NCND in respect of the identification of a CHIS is a well-established approach referred to frequently in authorities. The caselaw is helpfully summarised by Bean J in DIL v Metropolitan Police [2014] EWHC 2184 at [25] onwards. The justification for allowing a Respondent to maintain NCND is helpfully summarised by reference to Re Scapattici [2003] NIQB 56, in DIL at [28]:

At [39] of DIL Bean J said:

There was initially an issue in the present case as to the correct legal approach by the Tribunal to whether or not to allow the Respondent to maintain NCND. In Mohamed and CF v Secretary of State for the Home Department [2014] EWCA Civ 559 at [20] Maurice Kay LJ said:

In Al-Fawaz v Secretary of State for the Home Department [2015] EWHC 166 Burnett LJ said at [77]:

Mr Sheldon accepted that Al-Fawaz was a judicial review rationality challenge, and as such the Tribunal’s approach to deciding the issue should not be one of simply deciding whether the Respondent’s approach of NCND is rational. He accepted therefore that the Tribunal must make its own assessment and decision as to whether NCND should be maintained.

This is consistent with the Court of Appeal in Mohammed at [20] and dicta in DIL at [39] that it is for the Court to decide and assess whether the public interest in maintaining NCND is established on the facts of any case in light of any potential harm or damage to national security and whether it is outweighed by any other competing public interests which are applicable.

Ms Kilroy submits that X has disclosed his identity as a CHIS to Beth, and as such NCND serves no purpose and should not be relied upon. Beth knows the true position and has said so publicly.

She further submits that the Respondent has not put in any evidence of specific harm to national security, or even general harm, in this particular case.

On the other side of the balance she says that there will be a serious interference with Beth’s ability to have a fair trial if NCND is maintained. Most if not all of Beth’s factual case will be unable to be dealt with in OPEN because the Respondent is relying on NCND. Given what Beth already says she knows, Ms Kilroy argues that the Respondent should be required to make a positive pleading as to whether X was or was not a CHIS, and any evidence could be dealt with in PRIVATE hearings, in order to protect X’s identity and therefore safety.

Ms Kilroy submits that under rule 7 of the IPT Rules the Tribunal must balance any harm to national security against other matters of public interest, in this case the need to ensure that Beth has a fair trial.

She submits that the correct approach is as follows:

She goes back to the well-known principles set out in Al-Rawi and AF (No 3) that a court cannot depart from the basic principles of natural justice, and the fact of the appointment of a Special Advocate (here, Counsel to the Tribunal) is not in itself sufficient to meet the requirement of natural justice.

If rule 7(1) does not allow such a balance then Ms Kilroy submits it is ultra vires the enabling power in s. 69(6) of the Regulation of Investigatory Powers Act 2000 (RIPA) which provides:

Mr Sheldon submits that self-identification is largely if not wholly irrelevant to the question of whether NCND can be upheld, by reference to the caselaw set out above.

He submits that there is evidence of harm to national security from not permitting reliance on NCND in respect of whether X holds CHIS status, both by reference to the evidence placed before Chamberlain J, and the general position set out in the caselaw.

He submits that there will be limited harm to Beth’s fair trial rights, both because a significant part of the case can be dealt with in OPEN in respect of challenge to those aspects of the Respondent’s policies that are to be disclosed into OPEN; but also Beth’s evidence as to X’s risk to her, which can be dealt with largely in OPEN albeit in PRIVATE session.

He further submits that rule 7(1) does not permit of any balance between national security and natural justice. If disclosure would be prejudicial to national security then rule 7(1) requires it not to be granted. However, the Claimant’s fair trial rights are entirely protected by the statutory scheme under which the Tribunal operates and the processes thereunder.

There is no argument that rule 7(1) is ultra vires because of the effect of the entirety of the Rules and RIPA.

We invited Counsel to the Tribunal (‘CTT’) to make submissions on rule 7(1) because of the wider implications of the arguments. CTT submits that in determining whether to allow disclosure, considerations of wider public interest do arise. However, in any event if the Tribunal considers that the public interest in non-disclosure of whether X is or is not a CHIS outweighs the natural justice issue, then the interpretation of rule 7(1) does not arise.

We will deal with each of the above issues in turn.

In relation to the self-disclosure argument, the fact that a third party, here Beth, believes that they know that an individual is a CHIS is largely immaterial as to whether it is appropriate to maintain NCND. The NCND principle fundamentally relies upon the absolute consistency of its application. A CHIS is effectively given a guarantee that their status will not be acknowledged. It would undermine that guarantee if it had to be caveated to the effect that the SyS would undertake a balancing exercise in determining whether to maintain NCND. Conversely, the status of a non-CHIS must be protected in the same way for the reasons explained in Scappaticci.

The authorities demonstrate that even where an individual has positively and directly identified themselves as a CHIS, e.g. Savage, the Court has continued to maintain the policy of NCND. In DIL, the only case where NCND was departed from, the lifting of NCND was only applied in the two instances where the State had already itself acknowledged that the two individuals were CHIS.

This then leads to Ms Kilroy’s next submission, that there is no evidence of national security harm if the Respondent is not allowed to rely on NCND. She submits that any concerns can be entirely met by evidence relating to X’s identity being considered only in PRIVATE.

She contends that the evidence submitted by the Respondent does not go to the application of NCND but rather to why further directions were required in order to protect X’s identity. She submits that the imposition of a confidentiality ring, and the PRIVATE element of the proceedings that follows, is sufficient to protect from any risk to national security.

We do not accept the submission that there is no evidence that goes to the need for NCND. However, in any event, we are entitled to rely on the authorities that set out the nature and extent of harm to national security caused by the waiver of NCND in relation to the identity of CHIS, some of which are cited above. We are also entitled to rely on the assessment and judgment on this issue, and the related issue of anonymity orders, by Chamberlain J in the related proceedings involving Beth and X.

The rationale for the need to protect the identity of a CHIS and support for the application of NCND on the grounds of national security was accepted by Chamberlain J in Attorney General v BBC (QB) [2022] 4 WLR 74 at [26] and [27]:

For the Attorney, Sir James Eadie QC submitted that the passage as a whole showed

I accept that there is ample support in the authorities for the proposition that informants

This approach was fully explained and justified in proceedings before Chamberlain J, as incorporated in a witness statement before this Tribunal.

We are satisfied that there is cogent evidence before us to support the Respondent’s assessment as to the harm to national security of waiving NCND, in addition to that of identifying X. We also do not accept that the Respondent has come close to waiving NCND in its approach or conduct in reply to Beth’s allegations. Rather, the Respondent has gone to extensive lengths throughout these and the BBC proceedings to uphold the NCND policy.

Ms Kilroy submits that the public interest, both in terms of any national security harm and any Article 2/3 risk of harm to X, can be fully protected by the use of a confidentiality ring. This would provide that confirmation of X’s status can be made by the Respondent in private proceedings to her and her legal representatives only and subject to the anonymity order that is in place. Therefore, she argues that it is not appropriate or necessary to allow the Respondent to rely on NCND. She relies upon R (Mohammed) v Secretary of State for Defence [2012] EWHC 3454 where Moses LJ at [17] and [20] said:

We note that in Mohammed the Court did not actually consider that a confidentiality ring would be sufficient to protect national security. There is no case where a Court has relied on a confidentiality ring where national security was in play. The reasons not to rely upon a confidentiality ring in cases concerning national security were carefully set out by Ouseley J in AHK at [23]-[25].

Such an approach would amount to a material departure from NCND and the absolute reliance that CHIS and potential CHIS can place upon their status not being disclosed. Further there is necessarily a greater risk of inadvertent disclosure, whether by Beth or someone else within the ring. The careful structure and safeguard of security vetting which protects material in CLOSED procedures would not apply.

Ms Kilroy next submits that there will be very significant interference with Beth’s fair trial rights if NCND is maintained. She says that the vast majority of the final hearing will have to be conducted in CLOSED and will materially impact on Beth’s ability to put her case.

We accept that maintaining NCND impacts on Beth’s fair trial rights because she, through Ms Kilroy, cannot counter whatever evidence may or may not be presented in CLOSED, but that is inherent in any CLOSED procedure case. Further, there are a number of procedural safeguards in place by virtue of the Rules that will reduce the impact on Beth in these proceedings. For instance, her interests will be represented by CTT in CLOSED proceedings. We also note that the impact on Beth by this process is significantly less than in many CLOSED procedure cases where the individual does not know the case against them and may suffer very significant consequences by reason of material in CLOSED which is unknown to them.

We also note that the position is not as stark here as Ms Kilroy suggested. The Respondent is to disclose certain policy documents into OPEN, and it will be open to Ms Kilroy to challenge the lawfulness and efficacy of those documents.

Overall, although we accept an impact on natural justice in permitting the Respondent to maintain NCND in the OPEN proceedings (both public and private), we consider that the Tribunal will retain the ability to conduct a fair trial into Beth’s allegations. We do not consider it necessary to determine whether Article 6 is or is not engaged, because the matter can be considered under the common law on the preservation of natural justice.

Central to Ms Kilroy’s case is the submission that the Tribunal must balance harm to national security against other public interests, in particular Beth’s fair trial rights. To a significant degree the parties agree the analytical approach. The first stage is for the Tribunal to determine whether breaching NCND would cause prejudice to national security. This is a determination for the Tribunal, but in making that determination the Tribunal should give considerable weight, or great respect, to the Respondent’s assessment of harm to national security, see the Supreme Court decision in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765. This is not a contentious submission and was accepted in the context of the IPT in Various Claimants v Security Service (“the Vetting Case”) 2022 UKIP Trib3 at [47]:

As we have set out above, in our view there is no basis to depart from the assessment of the Respondent in respect of the harm to national security that waiving NCND would cause in this case. The importance of the Respondent being able to guarantee to CHIS, and prospective CHIS, that their identities will never be revealed is clear. The degree to which that would be undermined by the Respondent being required to positively plead one way or another to Beth’s assertion, is apparent from Scappatici.

Ms Kilroy submits and we wholly accept that achieving fairness, and the proper hearing and consideration of proceedings, is one of the core functions of the IPT, set out in both the enabling legislation and the IPT Rules themselves. That function and duty sits alongside and in parallel to the need to secure that sensitive information is not disclosed ‘to an extent, or in a manner that is contrary to the public interest or prejudicial to national security’, see s.69(6) RIPA.

Section 69(6) of RIPA states:

Rule 10(4) of the IPT Rules provides that when exercising its discretion to hold a hearing, the IPT “must endeavour, so far as is consistent with the general duty imposed on the Tribunal by rule 7(1), to conduct proceedings, including any hearing, in public and in the presence of the complainant.”

Ms Kilroy argues that even if the duty to strive for fairness were not explicit in the IPT Rules, it would be implicit: first, because natural justice is a fundamental common law right which all tribunals and decision-makers are required to uphold unless explicit statutory authority authorises departure (Al Rawi [2012] 1 AC 531, §27, §39 and §48); and secondly, because RIPA and the IPT Rules were enacted to enable proceedings alleging breach of ECHR rights under section 7 of the Human Rights Act 1998 (‘HRA’).

She therefore submits that either rule 7 of the IPT Rules requires a balance between national security and other public interest, including fair trial rights; or if it does not allow such a balance then rule 7(1) is ultra vires.

Rule 7(1) states;

In our view the flaw in Ms Kilroy’s analysis of rule 7(1) is that she seeks to analyse it in isolation from the rest of the Rules and the statute. Fair trial rights and natural justice, whether imported through Article 6(1) of the European Convention on Human Rights or through the common law, are protected through the processes that the Tribunal provides under the Rules. The Tribunal addressed this in Lee and Wilkes v the Security Service [2023] UKIPTrib 8 at [15]-[18]:

We agree with Mr Sheldon’s submission that rule 7(1) provides an absolute prohibition on disclosing material into OPEN proceedings in the Tribunal if such disclosure would harm national security. The balance between the protection of national security and fair trial rights has been addressed by Parliament in RIPA and the IPT Rules, which provide a procedure that protects natural justice, whilst safeguarding national security. There is no breach of the right to fair process, as set out inter alia, in Al-Rawi because the material which has been subject to NCND will be fully and fairly considered in the CLOSED part of the proceedings. The position is therefore materially different from a Public Interest Immunity (‘PII’) application, which if successful leads to the material being entirely excluded.

Ms Kilroy submits that if rule 7(1) does not allow a balancing exercise then it must be ultra vires s.69(7). In our view this argument is plainly wrong, because it does not take into account the wider scheme. As Lord Dyson explained in the Court of Appeal in R(A) v Director of Establishments of the Security Service [2010] 2 AC 1 at [48]of the predecessor set of IPT Rules (cited in the Claimant’s Post-Hearing Submissions at [7], and cited with approval in the Supreme Court at [14]):

Rule 7(1) reflects the detailed enabling power in section 69 of RIPA and is part of the overall statutory scheme. This scheme reflects the requirements of s69(6) of RIPA, which does not require a hearing in the presence of the complainant; nor do they even require that the IPT must endeavour to ensure a hearing in the presence of the complainant. Rather, s.69(6)(a) stipulates the need to secure that matters which are the subject of complaints are “properly heard and considered”. Therefore, in making the IPT Rules, what must be balanced against the needs of national security in RIPA s69(6)(b) is not the right for the complainant to attend a hearing, but the requirement for the matter to be properly heard and considered.

That balance has been met by the scheme set out in IPT Rules 10(1), 10(4) and 7(1): rule 10(1) gives the IPT a discretion to hold a hearing in a variety of ways including with or without the attendance of the complainant at various stages. IPT rule 10(4) elaborates on that discretion, providing that the IPT must “endeavour” to conduct “any” hearing in the presence of the complainant, whilst making explicit that this requirement to endeavour is subject to the general duty under IPT rule 7(1) - in so far as this does not cause disclosure of information in a manner prejudicial to national security.

In the light of our conclusions on the harm to national security, we do not need to consider further submissions by CTT on the construction of rule 7(2) to (9).

Therefore, we accept that rule 7(1) is not ultra vires.

We conclude that the Respondent is permitted neither to confirm nor deny whether X was or was not a CHIS in response to the claim in the OPEN proceedings (both in public and private).

Following the circulation of a draft of this judgment to the parties for corrections on 7 June 2024, the Claimant provided written observations requesting that, “the final judgments from the Tribunal make clear whether it is the Tribunal’s view that the Tribunal’s determination/decision that the Respondent shall be permitted to rely on the NCND policy gives rise to a right of appeal pursuant to s.67A(1) RIPA”.  She did not express any view of her own on that issue. The Tribunal directed the Respondent to provide brief submissions in reply to these observations, specifically regarding the question of whether the decision on NCND is appealable.

On 17 June 2024 the Respondent filed written submissions arguing that the decision on NCND is not an appealable decision because it constitutes a decision on a procedural matter for the purposes of s.68(4C) of RIPA.

We are satisfied that our decision on the NCND issue is a clear example of a decision on a procedural matter for the purposes of s.68(4C) of RIPA so is not appealable. The issue engages the Tribunal’s discretion regarding disclosure and the conduct of proceedings under rules 7 and 10 of the IPT Rules. A decision in the Claimant’s favour would have involved an exercise of the Tribunal’s discretion under rule 7(6) of the IPT Rules (allowing the Tribunal to direct the Respondent to disclose certain information to the Claimant in the PRIVATE part of proceedings).  The disclosure and pleading into private which the Claimant requested would have shaped the mode of proceedings by which the Claimant’s allegations are to be assessed. As such it was a ‘paradigm example of a procedural matter’ in the sense noted in Lee and Wilkes [2023] UKIPTrib 8 at [42]-[45].

The Claimant did not invite us to conclude that our decision on the issue addressed in our PRIVATE judgment, the degree to which information about X should be restricted so that he cannot be identified as a result of these proceedings, could give rise to a right of appeal.  Nonetheless, we are also satisfied that this was a decision on a procedural matter for the purposes of s.68(4C) of RIPA and is likewise not appealable.