Public Interest, Fairness, and National

SecurityGordon Anthony

What is this talk about?

Two things:

1. The tension between the idea of “procedural fairness” and the “public interest” in national security

2. Four cases of note

First, a word about “fairness”I. It is synonymous with the common law’s

right to a hearing and the parallel right under Article 6 ECHR

II. The right to a fair hearing is absolute, but the different elements of it are not

III. The State need not therefore always disclose information in the course of proceedings – and non-disclosure does not mean that a trial/hearing will thereby be unfair

IV. Public Interest Immunity; and “closed material” and “Special Advocates” in cases involving national security (suspected terrorism; etc)

V. But where Special Advocates are engaged, can the individual make meaningful representations?

The demands of Article 6 ECHR - Home Secretary v AF (No 3) [2010] 2

AC 269Prevention of

Terrorism Act 2005

Control orders

Closed material and special advocates

The requirement of “gisting”

Its implications?

An on-going problem? – see AT v Home Secretary [2012] EWCA Civ

42

But how far does that principle run? – Tariq v Home Office [2011] 3 WLR

322

Discrimination claim (race and religion)

Legislation provided for use of “closed

material” and “Special

Advocates”

The AF principle didn’t apply –

liberty is in a very different bracket

Kennedy v UK (2010) 52 EHRR 207

Lord Kerr’s dissent

A common law safety net? – Al Rawi v Security Services [2011] 3

WLR 388Claims in respect of

detention in foreign locations

Security Services asking court to use

its inherent jurisdiction to order a parallel “closed

procedure”

Argument rejected – PII would suffice

Open justice is a fundamental

principle of the common law

Only Parliament could effect the

change

Comments on the inconsistency?

1. The inconsistency is wholly consistent with the broader dynamics of the ECHR

2. The issues in Al Rawi were moot

3. But just how robust is the common law? If Parliament can introduce legislation, will that only ever lower the threshold at which rights enjoy protection?

4. Would the common law tolerate legislation that sought to do away with the very essence of the common law right to a hearing? (Jackson and all that …)

A twist in the tale? – W (Algeria) v Home Secretary [2012]

UKSC 8

Appellant before Special Immigration Appeals

Commission

Wished to adduce evidence from a

witness who wanted anonymity – the fear

of was State sponsored reprisals

Supreme Court held that it was possible for SIAC to receive

evidence under such circumstances

Important that SIAC would perform its

function to the full, even if this required

a modification of procedure