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||Neutral Citation Number:  EWHC 2359 (Admin)
||Case No: CO/6593/13
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE BEAN
|| THE QUEEN
On the application of
||- and -
||SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
Dinah Rose QC & Maya Lester (instructed by M Taher & Co) for the Claimants
Jonathan Swift QC, Robert Palmer & Caroline Stone (instructed by The Treasury Solicitor) for the Defendant
Angus McCullough QC and Ben Watson (instructed by the Special Advocates Support Office) appeared as Special Advocates
Hearing dates: 7th March 2014 (open) and 28 April 2014 (closed)
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Bean :
- By a Decision (2010-413-CFSP) and a Regulation (961-2010) made on 26th July 2010 the European Union Council of Ministers approved a package of international sanctions against Iran with a view to restricting or preventing what are described as "proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems". One of these measures is the freezing of the assets of designated entities and of individuals who are "senior members" of such entities. Islamic Republic of Iran Shipping Lines ("IRISL") was a designated entity.
- By a further Decision (2011-783-CFSP) and Regulation (1245-2011), made on 1 December 2011 on the proposal of the UK Secretary of State for Foreign and Commonwealth Affairs, the Council added the names of the five claimants (among others) to the list of designated individuals. The proposal was made on the basis that each of the claimants was a "senior member" of IRISL. On 9th February 2012 the claimants and others applied to the General Court of the European Union to annul the Decision and Regulation adding them to the list.
- The claim before this court is not concerned with the lawfulness of the Council's decisions as such. That issue, a matter of European Union law, was determined in the claimants' favour by the General Court: firstly, in IRISL v Council on 16 September 2013, by holding the designation of IRISL unlawful; then, in Nabipour & Others v Council on 12th December 2013, by holding the claimants' designation unlawful. Rather, this claim is concerned with the lawfulness of the actions of the Foreign Secretary in proposing what became the 2011 Decision and Regulations.
- The claimants say that the fact of the Foreign Secretary having proposed the decision first become known to them in 2013. A letter before action on their behalf demanded that the Secretary of State should propose their removal from the list. By letter of 24th April 2013 the defendant declined to do so.
- The present claim was issued on 30th May 2013. The principal remedy sought is a declaration that the proposal to list the claimants was unlawful. The case as pleaded also sought an order requiring the Secretary of State to propose to the Council that the claimants be de-listed without further delay (or in the alternative a declaration that he was obliged to make such a proposal), but since the decision of the General Court on 12th December 2013 this relief is no longer necessary. The claimants also seek damages for the losses they had suffered as a result of the listing proposal. It was agreed that no assessment of those damages should take place unless and until liability has been decided in the claimants' favour, and should be heard in the Queen's Bench Division.
- On 13th August 2013, following consideration of the case on the papers, Dame Linda Dobbs, sitting as a judge of this court, granted permission for judicial review.
The application for a closed material procedure (CMP)
- We are not yet at the stage of a hearing on the merits of the judicial review application. The Secretary of State has made an interlocutory application for a declaration under section 6(2) of the Justice and Security Act 2013 for an order that a closed material procedure ("CMP") can be used in this case. Section 6 of the 2013 Act, so far as material, provides:-
"(1) The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which the closed material application may be made to the court.
(2) The court may make such a declaration –
(a) on the application of –
(i) the Secretary of State…;
(3) The court may make such a declaration if it considers that the following two conditions are met;
(4) The first condition is that –
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings) or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following –
(i) The possibility of a claim for public interest immunity to the material …
(5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(6) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of proceedings (and an application under subsection (2) (a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(7) The court must not consider an application by the Secretary of State under subsection (2)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make or advise another person to make a claim for public interest immunity in relation to the material on which the application is based."
- The Foreign Secretary has personally signed an open statement of reasons, served on the claimants' solicitors, in support of his application for a declaration under section 6(2). He seeks to rely not only on that, but also on a closed statement of reasons which has annexed to it "sensitive material" within the definition contained in section 6(11) of the 2013 Act, namely material the disclosure of which would be damaging to the interests of national security. I also have before me an open witness statement from Mr Ajay Sharma, Head of the Iran Section at the FCO. giving some limited information about the decision-making process which led to the proposal. There was no opposition by Dinah Rose QC for the claimants to the grant of permission under CPR 82.13(1) (a) to withhold the sensitive material and closed statement of reasons and witness statement from her clients and their legal representatives during the proceedings before me. Angus McCullough QC and Ben Watson have been appointed as special advocates to represent the claimants' interests in consideration of the closed material.
- CPR 82.23(4) provides that, where the Secretary of State has made an application under section 6(2) of the 2013 Act for a declaration, "the hearing of the application shall take place in the absence of the specially represented party and the specially represented parties' legal representative" [emphasis added], the specially represented party in this case being the claimants. It was common ground among the very experienced counsel before me that this rule cannot mean what it says. It must be read as meaning "the hearing of the application shall so far as necessary take place in the absence of the claimants, their lawyers and the public", and that this is only necessary when submissions are being made referring to the closed material.
- It was agreed that the hearing on 7th March 2014 should be in public when I would hear submissions on behalf of the claimants and the Secretary of State without reference to the closed material. I held a further hearing on 28th April 2014 to hear submissions by the special advocates and by counsel for the Secretary of State on the closed material. On the same day redacted versions of the Secretary of State's closed skeleton argument and of the Special Advocates' response to it were served on counsel for the Claimants. Arrangements were made for a further hearing (on 13 June 2014) at which Ms Rose QC and Ms Lester could reply to this material, but in the event they were content to do so by way of written submissions, and the further hearing date was vacated.
Mr Sharma's evidence
- Mr Sharma describes the decision-making process which is under attack in the present claim as follows:
"In July 2011 HMG began to identify potential entities and individuals for designation in preparation for a further round of EU sanctions. There was also a concern that effective sanctions were time critical due to the risk of Iran reaching a point in its nuclear capability where its progress would be irreversible. Four of the five shipping individuals (the exception being Mr Nabipour) were identified as potentially suitable for proposal to the EU Council on 28 July 2011.
Further research and collation of evidence in support of these designations continued through to early September 2011. Mr Nabipour was added to the list of proposed designees on 26 August 2011 following a routine cross-Whitehall meeting to review Iranian shipping developments.
On 8 September 2011, the proposal to list the Claimants was given initial consideration by the FCO. Further cross-Whitehall meetings were held on 6 and 12 October 2011 to discuss draft text of the justification for the designation proposals for each of the individuals on the full list.
A version of the list amended to reflect the approved unclassified text was sent to the FCO Iran team on 25 October 2011. On 26 October FCO undertook a final review of the unclassified text and examined the list to ensure they were content that the descriptors provided sufficient information to propose the designation. Once consensus was reached, the list was despatched as a COREU along with the descriptions/justifications on 31 October 2011…"
The claimant's submissions
- The claimants' case on the substantive judicial review will be that none of them fell within any of the criteria for listing individuals set out in the EU Council's decisions, and the Secretary of State could not rationally have formed the view that any of them did. The measures taken by the Council permitted the inclusion on the list of senior members of IRISL or entities owned or controlled by or acting on behalf of or at the direction of IRISL. None of the claimants, it is argued, fits the description of a senior member of IRISL.
- On the present application the claimants dispute the assertion by the Secretary of State that he cannot respond to the substantive judicial review claim without disclosing sensitive material. Firstly, Ms Rose submits, adjudicating on the legality of the Secretary of State's proposal that the claimants should be listed need not involve consideration of the sensitive material. It is common ground that the proposal was made because of the position that each of the claimants was alleged to hold in IRISL, or a subsidiary or connected company. The claimants say that this was not a lawful basis for proposing the designation of any of the claimants, because simply being employed by IRISL or a subsidiary or connected company was not sufficient to satisfy the criteria for listing; and in any event at the relevant time the Secretary of State was factually mistaken about the claimants' occupations.
- Ms Rose submits that the rationality of the decision to propose the claimants for designation can be assessed without consideration of the sensitive material because the substantive issues are as follows:-
(a) whether or not the Secretary of State was correct in his description of the claimants' occupations;
(b) whether each claimant had a "controlling influence" in one of the companies or a "position in the highest echelons of IRISL's wider corporate structure", including its associated companies;
(c) within which listing criterion the Secretary of State considered that each claimant fell; for example, whether they were each acting on behalf of IRISL and/or at IRISL's direction and were accordingly "senior members" of IRISL within the meaning of Article 20(1)(b) of the 2010 Council Decision;
(d) whether each of the claimants who was alleged formerly (but no longer) to be employed by companies connected with IRISL remained associated with those companies;
(e) whether the Secretary of State proposed the claimants for designation on the basis of material errors of fact and made sufficient enquiry about the factual position before proposing them. (The Grounds of Defence make it clear that what the claimants have said about the factual position is disputed.)
- Ms Rose submits that the General Court's judgment in Nabipour indicates that the claimants' substantive arguments are correct. The Court held that the claimants could not be listed simply on the basis of their occupations, nor on the basis of an alleged connection with IRISL. The Court had already held in September 2013 that the inclusion of IRISL on the list of designated entities was unlawful because there was no evidence substantiating the allegation that it, or its subsidiary or associated companies, had any involvement in nuclear proliferation. The Court also held that in respect of several individuals, including the first, fourth and fifth claimants in the present case, factual errors had been made in the material on the basis of which they had been listed.
- Ms Rose argues that the key document in the case must be the Secretary of State's listing proposal to the Council. A extract from this document, redacted for relevance, was disclosed shortly before the hearing. The references to each claimant vary between one line and five lines in length, giving in each case his name and the position which he was said to hold in a particular company. They were all proposed for inclusion on the grounds that they were said to hold positions in companies that were themselves designated. The Council of Ministers apparently had before them only the listing proposal, without supporting evidence. She submits, therefore, that the introduction of sensitive material before me to support the decision to make the listing proposal is impermissible because it would be irrelevant to the grounds for judicial review.
- It would also have been irrational, Ms Rose says, for the Secretary of State to propose the listing of the claimants on the basis of material he was not prepared to disclose to the claimants. The European Court of Justice and the General Court, in the Nabipour case and elsewhere have, in Ms Rose's words, "repeatedly confirmed that it is contrary to the fundamental principles of European law and a violation of the basic rights of defence of individuals on sanctions lists to be listed on the basis of evidence they have not seen and on which they have not had an opportunity to make submissions, or on the basis of ex post facto reasons."
- Ms Rose goes on to refer to section 6(7) of the 2013 Act. An application for a closed material procedure must not be considered unless the Court is satisfied that the Secretary of State has first considered whether to make a claim for public interest immunity for the relevant material. She argues that the analysis of the Foreign Secretary, shown in his open statement of reasons, "ignores the possibility of a private hearing, gisting or other measures to protect the material and ignores the Wiley balancing exercise which is for the court to perform. It is for the court to determine whether the material is (a) relevant and (b) liable to cause significant or serious damage to international relations and, if it is, if the interest in public justice outweighs the potential damage caused by disclosure."
- For all these reasons, Ms Rose submits that the "first condition" set out in section 6(4) is not satisfied. She goes on to argue that the "second condition" laid down in section 6(5) is not satisfied either, because it would be contrary to the interests of the fair and effective administration of justice in these proceedings for the legality of the proposal to designate the claimants to be determined without their being able to see the material on which that designation was proposed.
The defendant's open submissions
- At the heart of the Secretary of State's case is paragraph 34 of his Detailed Grounds of Defence, which states:
"The Secretary of State is (and was at the time of the decision to propose the Claimants) in possession of evidence on which he was entitled rationally to conclude as follows.
i) IRISL was engaged in, directly associated with, or provided support for Iran's proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the procurement of the prohibited items, goods, equipment, materials and/or technology.
ii) Each of the listed entities named above as being associated with IRISL was acting on IRISL's behalf, and each of their activities included activities directed towards evading or violating the 2010 Council Decision, the 2010 Council Regulation and/or the UNSCRs.
iii) Each of the Claimants held the position in IRISL itself and/or within the associated listed entities, as stated in the Council's reasons.
iv) By virtue of their position in the highest echelons of IRISL's wider corporate structure (including those associated companies), they were acting on behalf of IRISL and/or at IRISL's direction.
v) The Claimants were accordingly "senior members of IRISL" within the meaning of Article 20(1)(b) of the 2010 Council Decision."
- On behalf of the defendant Jonathan Swift QC emphasises the distinction between the lawfulness of the Foreign Secretary's decision to make the proposal, on the material available to him, and the lawfulness of the Council's decisions, on the material which was placed before the Council. The General Court decided the second issue, but not the first. The first will inevitably involve the judge in consideration of the material available to the Secretary of State, some of which is sensitive within the meaning of the 2013 Act.
- As to the "first condition" under s 6(4), Mr Swift submits that it is met: the sensitive material is disclosable (or would be disclosable subject to any PII claim). Plainly this is correct subject, to Ms Rose's submission on relevance, and subject also to the s 6(7) issue of whether PII has been properly considered as an alternative.
- As to the "second condition", Mr Swift submits that it would be in the interests of the fair and efficient administration of justice to operate a CMP. Otherwise the Secretary of State could not properly defend the claim.
The Special Advocates' open response
- The Special Advocates submit:
"In order to defend this case, the SSFCA is required to set out the rational basis for, together with the evidence in support of, his decision to propose the Claimants' listing. In open, the SSFCA maintains that such evidence is available in closed, hence this application: see Detailed Grounds para 34 and 36. On examination of the materials in closed, however, it is plain that they afford no basis for such a decision by the SSFCA at all.
First, there is no evidence in closed of a rational and considered decision having been taken by the SSFCA on the grounds that he would advance in open.
Secondly, there is no evidence in closed of the extent of any enquiries made by the SSFCA prior to his decision to propose the Claimants' listing.
Thirdly, while in open the SSFCA maintains that he had material available to him which supported five critical propositions which he would seek to rely on to make good his defence, in closed it transpires that the first proposition (upon which the other four are all founded) cannot be made out [This is a reference to paragraph 34(i) of the Detailed Grounds of Defence.]
In summary therefore, and as before, the SAs maintain that the closed documents demonstrate the reality that the SSFCA proposed the claimants on [a] basis …….which was never properly analysed, assessed, or considered against the wider canvas of 'open' evidence which might have been obtained following reasonable or proportionate enquiries had they been conducted.
Accordingly, the SAs maintain their objection to the SSFCA's application: the closed material that the SSFCA would seek to withhold is of such limited relevance and utility to the SSFCA's defence that its disclosure is not strictly 'required' here. Rather, a PII process with suitable gisting of the scope and (extremely limited) extent of the 'additional' closed material (i.e. closed material which travels beyond that which is in open) would offer an appropriate mechanism by which the admitted sensitivities of the underlying documents themselves could be protected while informing the Claimants of the essence of the SSFCA's defence……..
For these reasons, the SAs respectfully submit that it cannot be in the interests of the fair and effective administration of justice to allow the SSFCA's application when a PII process could operate fairly to ensure the matter is tried – a fortiori where on the evidence in closed, it appears there is no evidence sufficient to support the SSFCA's defence in any event.
Further, it is submitted that the SSFCA cannot overcome the deficiencies of the closed material produced in support of the present application by reference to s.6(6) which provides that an application 'need not be based on all the material that might meet the conditions'…….At least in the present context, it is clearly necessary for the Court to evaluate the central evidence in open and closed in order to determine whether it is in the interests of fair and effective administration of justice to allow the application for a closed material procedure. ….
Further and alternatively, in closed there appears to be no answer to the Claimants' open representatives' submission that the SSFCA proposed the Claimants' listing in purported reliance on a sensitive material in circumstances where (a) European law makes clear that the Claimants would have to be afforded an opportunity to comment on that material; and (b) the SSFCA knew that no such mechanism would be available through the Council/EU Court's procedures…..
In the light of all the above, the SAs submit that the SSFCA has failed to give full and proper consideration to the possibility of a claim for PII as required by s.6(7), JSA 2013. It may well be here that, with suitable gisting, the Claimants could be afforded a sufficient understanding of the SSFCA's approach leading to his proposal to list them, for the matter to be tried without a closed material process. …"
Is the closed material irrelevant because of the General Court's decisions?
- I should begin by considering the significance of the General Court's decision in the case brought by the present claimants and others (Case T-58/12 Nabipour and others v Council). The Court held that the Council's statement had given a "clear and unequivocal" reason for the listing of each of the claimants, enabling them to understand it and to defend themselves. IRISL had been listed because it was regarded as being directly involved in nuclear proliferation activities. The claimants' listing was based on the positions they held within IRISL or companies linked to it. But the Court had held in IRISL v Council (Case T-489/10) that the Council had failed to adduce evidence that IRISL had provided support for nuclear proliferation. Accordingly it and its associated companies had not been properly listed; and the adoption and maintenance of the restrictive measures to which the claimants had been subject had not been justified. (The Court went on to consider whether the claimants' listing would have been justified if IRISL and its associated companies had been properly listed. The answer, so far as it relates to the five claimants before me, was "yes" in the cases of Mr Fard and Mr Ghezelayagh, but "no" in the case of Mr Nabipour, Mr Sarkandi and Mr Tafazoly.)
- I accept Mr Swift's submission that the General Court's decisions do not determine either the substantive claim or the present application in this case in favour of the claimants. The decision under scrutiny in this judicial review is that taken by (or in the name of) the Foreign Secretary that a proposal would be made to the Council to designate the claimants. Its lawfulness and rationality are issues for the Administrative Court applying English law, not for the courts at Luxembourg. By contrast, the lawfulness of the decision of the Council of Ministers accepting the proposal was and remains an issue of European Union law, outside the jurisdiction of this Court, and indeed has already been decided by the General Court in the claimants' favour.
Can the Secretary of State rely on sensitive material in this case when it was not before the Council?
- Quite apart from the jurisdictional point, it does not follow logically that because the Council's decision was wrong on the basis of the material before them, therefore the Foreign Secretary's decision was wrong on the basis of the different, more extensive material before him. But Ms Rose's submission is that as a matter of law the defendant cannot now seek to support his decision to propose the claimants for listing on the basis of material which he did not share with the Council, nor with the claimants, nor subsequently with the General Court.
- Ms Rose relies on AN v Secretary of State for the Home Department  EWCA Civ 869. The Home Secretary had made a number of non-derogating control orders under the Prevention of Terrorism Act 2005. Following the decision of the House of Lords in Secretary of State for the Home Department v AF (No.3)  2 AC 269 that a controlee had to be given at least the gist of the allegations against him in order to enable him to give effective instructions to his special advocate, the Secretary of State elected in some cases not to make further disclosure and abandon the control order. The Court of Appeal in AN held that in such a case the control order had to be quashed not merely prospectively but ab initio. Maurice Kay LJ said at  - :
"In order to advance a submission that a control order was valid when made but only succumbed to legal difficulty at a later date, the Secretary of State would have to establish that, in relation to the point for which he is asserting legality, he can satisfy the court as to the reasonable grounds for his suspicion of terrorism-related activity and the need for public protection. However, he could only do that by relying on the material that he is unwilling to disclose or gist. In other words, he would need to resort now to closed material in a manner not countenanced by AF(No.3). Whilst I accept Mitting J's suggestion that, in court, the Secretary of State does not have to rely on all the material that led him to his view about terrorism-related activity and public protection, he does have to rely (with consequential disclosure obligations) on sufficient of it to satisfy the court that his decision to make a control order was not and is not flawed. In these cases, he has chosen not to do so. I shall assume he has reasonable grounds for exercising that choice. However, its consequence is that he has disabled himself from satisfying this appellate court that, throughout, he has been able to satisfy section 2(1). In essence, we are being invited to assume that, but without access to the relevant material….. ……Although Article 6 may not bite at a stage of administrative determination, it is axiomatic that, when the Secretary of State decides that there are grounds for making a non-derogating control order (which, by definition, imposes restrictions on a person's liberty), he knows that he will have to justify it so as to obtain the permission of the court under section 3(2) and, in due course, and subject to more intense scrutiny, at a hearing under section 3(10)…………I cannot escape the conclusion that it is unlawful for the Secretary of State to begin to move towards the making of a control order if, in order to justify it, he would need to rely on material which he is not willing to disclose to the extent required by AF(No.3), regardless of his understanding of the law at the time. If I were wrong about that it would mean that the Secretary of State could lawfully place significant restrictions on a person's liberty without that person ever being able to discover the basis for the Secretary of State's decision. It would be beyond scrutiny or challenge. This would run counter to the unappealed decision of the Court of Appeal in Secretary of State for the Home Department v MB  QB 415 that the task of the court is to determine whether the decision to make the control order was flawed at the time it was made and thereafter ."
- I do not accept that this reasoning is applicable to the present case. Under the system of non-derogating control orders the Home Secretary himself made the order. The court could not assess the lawfulness of the order, and the controlee could not challenge it in court, without knowing at least the gist of the evidence on which it had been based. This is in contrast with the present case, where the designation of the claimants was a decision of the EU Council, not of the Foreign Secretary. In English law a prosecutor, and in some circumstances (for example when applying for an injunction without notice) a claimant in civil proceedings, is under a duty to disclose to both the court and the defendant material which weakens his case. But he is not under the same duty to disclose material (such as a tip-off to police) which does not weaken his case and which influenced him to begin the proceedings.
Has the alternative of a PII application been considered?
- Section 6(7) provides that the court shall not consider a CMP application unless satisfied that the Secretary of State has considered whether to make a PII claim in respect of the material on which the CMP application is based. The Foreign Secretary has personally signed a statement of reasons saying that he has considered whether to do so. On a literal reading of the subsection that would be sufficient to dispose of this issue, but Mr Swift rightly did not argue for such a literal approach, and the statement of reasons goes further. The Foreign Secretary states that he has approached the matter on the basis that s 6(7) requires him to consider whether, having regard to the s 6 material, an application for PII rather than for a CMP is the more appropriate course; and that exercise requires consideration of whether the claim could fairly be tried without the s 6 material. I agree. I shall do likewise.
Should a CMP declaration be refused on the grounds advanced by the Special Advocates?
- Mr McCullough QC submits on the basis of the evidence so far adduced that, before the decision to propose the claimants for designation was made, there was a failure to conduct a proper analysis or assessment of the sensitive material, or to take reasonable steps to make further enquiries. Those are points which he can no doubt develop at the substantive hearing for judicial review, where they will have to be evaluated in the light of all the evidence then before the court. But they do not arise at this interlocutory stage. Section 6 does not require me as a prerequisite to making a CMP declaration to conclude, for example, that the Secretary of State is more likely than not to succeed in defeating the substantive claim. I consider that I need to be satisfied that the Secretary of State has an arguable defence and that the sensitive material appears prima facie to be relevant and to support that defence. I need say no more than that I am satisfied on both points.
- The Special Advocates in their open submissions of 28 April 2014 point to the current absence of evidence before the court to show that the IRISL companies were engaged in or supporting Iran's proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems (paragraph 34 (i) of the Secretary of State's Detailed Grounds of Defence). Mr Swift has two answers to this. The first is that Parliament has by s 6(6) of the 2013 Act expressly allowed the applicant for a CMP to keep some material back for the substantive hearing. The second is that at the time of the decision to propose the claimants for designation in October 2011, the Council of Ministers had already made the 2010 Decision and Regulation on the basis that the IRISL companies were indeed engaged in such activities. Until and unless the 2010 Decision was annulled, Member States were entitled to assume that it was correct. It was therefore unnecessary in October 2011 for the Foreign Secretary to have before him evidence of the IRISL companies' involvement in those activities: that could be taken as read.
- I accept both these submissions, at least for the purposes of this application. But I do not consider that my acceptance of the second submission should prevent the issue being re-argued, should it arise, before the judge hearing the substantive judicial review.
Is the first condition satisfied?
- The first condition for a CMP, laid down by s 6(4), requires the applicant to satisfy the court that there is sensitive material (that is to say material the disclosure of which would be damaging to national security) which is disclosable, or would be disclosable were it not for the possibility of PII being claimed for it. The Special Advocates accept that the material in question is sensitive within the s 6(11) definition. I regard it also as disclosable on general principles, subject to any PII application. As Laws LJ observed in R(Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs)  EWCA Civ 1409, "there is…….a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.
- The first condition is therefore satisfied.
Is the second condition satisfied?
- As Lord Dyson said in Al-Rawi v Security Service  1 AC 531 at , "a closed material procedure involves a departure from both the open justice and the natural justice principles". It cannot, therefore be in the interests of the fair and efficient administration of justice to make a declaration allowing a CMP unless it is necessary to do so, and it will not be necessary to do so if there are satisfactory alternatives.
- The Special Advocates submit that an application for PII combined with the claimants and the trial judge being given the gist of the sensitive material would be a practicable alternative to a CMP. As to PII, in his signed statement of reasons the Foreign Secretary states :
"I have concluded that the claims advanced cannot properly or fairly be determined on the basis only of the matters that have been referred to in open, as any such material would exclude material parts of the underlying material supporting the relevant decision".
I agree. The present claim challenges the rationality of the Secretary of State's decision. The detail of the material available to the decision-maker is essential to an evaluation of the substantive case. An application for PII would exclude it from consideration.
- As to gisting: the overall gist of the sensitive material is set out at paragraph 34(ii) to (iv) of the Detailed Grounds of Defence. I do not consider that any useful further particulars of the evidence could be provided as open material without the risk of damaging national security. As to a confidentiality ring, a possibility which was only faintly hinted at, I regard it as wholly impracticable in a case of this kind: as Lord Mance said in Somerville v Scottish Ministers  1 WLR 2734 at , it would put counsel for the claimants in "an invidious and unsustainable position".
- In CF v Security Service; Mohamed v Foreign and Commonwealth Office  EWHC 3402 (QB) at  and  Irwin J said:
"I have….considered carefully the various submissions for alternative mechanisms intended to deal with the problem of sensitive material. What of gisting and summary? Much of the material here could not be summarised or gisted without either being summarised so generally as to be excessively bland, or causing the damage to national security which is feared. That conclusion proceeds from the nature of the material. I do not consider that gists or summaries provide the means to dispense with a closed material procedure and yet mount an effective trial. It is a rather different question as to whether, if a closed material procedure takes place, summaries and gists may play a role in permitting the Claimants and their representatives to give evidence focussed on the issues, and ensure their accounts cover the points which need to be addressed. That will need careful and detailed consideration……….
Difficult though closed material procedures can be, they do carry the benefit that the Claimants have both a team of lawyers who can communicate freely with them, and special advocates who cannot communicate directly with them, but who will be aware of all the evidence, and can test it thoroughly, with the Claimants' instructions and evidence in mind. The court will be alive to the need to open as much evidence as possible, and to ensure that the Claimants address in evidence all that needs to be covered. Experience of conducting closed material procedures does suggest that given care about the practicalities, given an emphasis on ensuring the issues are properly addressed, combined with caution and clear thinking as to the inferences that can fairly be drawn, a just result can be achieved. The problem that cannot be overcome is that justice cannot be seen to have been done. Certainly, the risks attendant on a confidentiality ring are high, in my view, and would be so here."
- I agree with these observations. There is no practicable alternative to a CMP if the present case is to be fairly tried. The second condition is satisfied.
- Section 6(3) provides that if the two conditions are met the court may (not must) make a s 6(1) declaration. For the reasons I have given I consider that I should declare that the present claim for judicial review is one in which a closed material application may be made to the court.
- Before both the oral hearings material on behalf of the Secretary of State was served at a very late stage, causing considerable practical difficulties for which Mr Swift, on behalf of his team, offered a courteous apology. Of course cases involving sensitive material require great care, but nevertheless this could have been better handled. I am particularly grateful to Mr McCullough and Mr Watson for their assistance in what must have been more than usually trying circumstances.
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