National Security and the Due Process of Law

Abstract

This article focuses on the ways in which English law struggles to accommodate security concerns within its framework of procedural fairness; insights drawn from EU law, which is rapidly gaining in importance in this field, are also briefly examined. The argument opens with a brief consideration of the use of special advocates and of closed material before turning to examine three recent ‘litigation sagas’ from the English courts which sharply illuminate the difficulties the law faces: Binyam Mohamed on intelligence sharing and obligations of disclosure; Al Sweady on public interest immunity and the Ministry of Defence; and Al Rawi on UK complicity in torture.

Introduction: National Security and Due Process

In constructing a counter-terrorism law that complies with the requirements of human rights, the interests of ‘security’ and ‘liberty’ are often said to be in tension with one another. The goal, it is said, is to achieve some sort of balance between them. In this article, I suggest that a ‘security versus due process’ dynamic is at least as important as the theme of ‘security versus liberty’. The focus is on the ways in which English law struggles to accommodate security concerns within its framework of procedural fairness, although EU law, which is rapidly growing in importance in this field, is also briefly referred to.

The phrase ‘due process of law’ is not being employed here as a term of art with a single, particular meaning. As Geoffrey Marshall once remarked, due process is ‘generally referred to only elusively in English law’—unlike in the United States, for example. ¹ Like Marshall, I take it as sitting somewhere between ‘the rules of natural justice’ (which is too narrow for present purposes) and ‘the rule of law’ (which is too broad). Within the idea of due process I include natural justice or what Lord Diplock called ‘procedural propriety’, ² as well as the right to a fair trial (as in Article 6 of the European Convention on Human Rights) and what EU law calls the rights of the defence and ‘effective judicial protection’. ³

Special Advocates and Closed Material

No doubt the best known example of our law's current struggles to accommodate security concerns within due process is the controversy surrounding the use of special advocates and closed material. This is a matter on which the House of Lords has ruled in two major cases— MB⁴ and AF⁵ —and on which the Grand Chamber of the European Court of Human Rights ruled in A v United Kingdom . ⁶ It is a matter, also, on which there is a relatively large body of valuable academic and other commentary. ⁷ For these reasons, I do not need to go over the background in detail.

Special advocates and closed material are now used in a variety of legal proceedings. Their first use in the United Kingdom was in the Special Immigration Appeals Commission (SIAC), a body established by statute in 1997 ⁸ in order to remedy problems in the due process of our national security law which the European Court of Human Rights had found in the Chahal case to be in breach of the European Convention. ⁹ SIAC, of course, hears appeals against immigration, deportation, deprivation of citizenship, and related decisions where those decisions are taken in the interests of national security. Special advocates and closed material are used also in control orders cases under the Prevention of Terrorism Act 2005 ¹⁰ and in financial restrictions proceedings under the Counter-terrorism Act 2008 and other instruments concerned with the freezing of terrorist assets. ¹¹ The Joint Committee on Human Rights (JCHR) reported in March 2010 that there are a total of 21 different contexts in which special advocates may be used in the United Kingdom and that they have actually been used in 14 of these. ¹²

While there may be minor differences as to the detail between these various procedures, the basic model is the same. The Government, advised by the Security and Secret Intelligence Services, will divide its evidence and supporting material in a case into ‘open’ and ‘closed’ bundles. Material which the Government considers to be sensitive for reasons of national security is ‘closed material’. Open material will be served on the other parties as normal. Closed material will not be served on the other parties, but will be served only on a ‘special advocate’ and, where appropriate, shown also to the court. A special advocate is a lawyer with security clearance who is appointed from a list maintained by the Attorney General to act on behalf of a party in closed proceedings. Once appointed the special advocate will have two main functions. The first is to test the Government's claim that the closed material really needs to be closed: thus, special advocates will seek to have as much of the closed material as possible disclosed as open evidence. The second function is to do what they can to protect the interests of the party on whose behalf they act.

The exercise of these functions is extremely difficult in practice. Martin Chamberlain, an experienced special advocate, published an instructive analysis of the issues in the Civil Justice Quarterly in 2009. ¹³ He identified three problems which particularly hamper the ability of special advocates to perform their functions effectively. His arguments were supported and in some respects amplified by the JCHR, which took evidence in February 2010 from three further special advocates. ¹⁴ The problems are as follows. First, even though the relevant procedural rules now allow it, special advocates have no ability in practice to adduce evidence to rebut allegations made in the closed material. The JCHR recorded the view that it was ‘entirely fanciful’ to imagine that a special advocate is able to instruct and call upon an expert to challenge the expert evidence relied upon by Government. ¹⁵ Secondly, special advocates struggle to find ways of mounting effective challenges to government objections to disclosure of material. From time to time a web search may reveal that some closed material is already in the public domain but, other than through making such a discovery, it is extremely difficult for special advocates to find ways in which a court will be persuaded that material which the Government says must remain closed should properly be disclosed. In the JCHR's words, ‘special advocates have no means of gainsaying the Government's assessment that disclosure would cause harm to the public interest’. ¹⁶ Thirdly, special advocates are gravely hampered by the rules which severely restrict communications between the special advocate and the party they ‘represent’ once the closed material has been served.

In the light of these issues the JCHR concluded that the current regime of special advocates and closed material ‘is not capable of ensuring the substantial measure of procedural justice that is required’. ¹⁷

Despite these—very serious—deficiencies in its operation, the system of special advocates and closed material has been held by our highest courts to be capable of satisfying the requirements of the right to a fair trial under Article 6 ECHR. Under A v UK and AF , however, this is subject to the condition that parties to legal proceedings are given ‘sufficient information about the allegations against’ them to enable them to give ‘effective instructions in relation to those allegations’. ¹⁸ As Lord Phillips expressed it in AF , ‘provided that this requirement is satisfied there can be a fair trial notwithstanding that the [party concerned] is not provided with the detail or the sources of the evidence forming the basis of the allegations’. ¹⁹

Even this degree of disclosure the Government has fought strenuously to resist. AF was a case concerned with control orders. In a series of subsequent cases, the Government has argued that the AF requirements as to disclosure should not be read across to other situations where special advocates and closed material are used. The Government has been largely unsuccessful in these attempts as, to their credit, the courts have generally stuck to the AF line, describing it as the core ‘irreducible minimum’ of the requirements of due process under both Article 6 and the common law. ²⁰ Thus, the courts have held that the AF requirements as to disclosure apply to all control orders, irrespective of the severity or extent of the restrictions they impose; ²¹ to claims for damages in respect of a control order which was subsequently quashed; ²² to discrimination actions in the Employment Tribunal; ²³ to bail hearings before SIAC; ²⁴ and to cases concerned with terrorist asset-freezing. ²⁵ The only context, to my knowledge, in which it has been held that the AF requirements as to disclosure do not apply are deportation hearings before SIAC—the reason for this being that the European Court of Human Rights (ECtHR) has held that a deportation hearing does not constitute a ‘determination of civil rights and obligations’ within the meaning of Article 6 ²⁶ and that the Article 6 right to a fair trial does not therefore apply to such a hearing. ²⁷

An identically composed Court of Appeal handed down judgments on the same day in May 2010 in three cases concerned with special advocates and closed evidence: ²⁸Al Rawi v Security Service , ²⁹Home Office v Tariq , ³⁰ and Bank Mellat v HM Treasury . ³¹Al Rawi we shall consider in detail later; in this case the court ruled that, absent statutory authority to such effect, there was no inherent common law power to permit a civil action for damages to proceed under closed material procedure. In Tariq the court ruled, first, that statute (and rules made under statute) permitted the use of closed material in an Employment Tribunal and, secondly, that the AF disclosure requirements applied in that context. In Bank Mellat , the court ruled that the AF disclosure requirements likewise applied in a context concerned with the freezing of terrorist assets. In Bank Mellat , Lord Neuberger MR added what may be an important gloss to AF . His Lordship stated that the information provided by the Government (in this instance, by the Treasury) must not merely be sufficient to enable the party (here, the bank) to ‘deny what is said against it’: the party must be given ‘sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it’. ³²

In both Al Rawi and Tariq , the court stated that ‘the special advocate system enjoys a high degree of confidence among the judiciary’. ³³ However, in Tariq the court noted that this was despite the fact that the system is ‘inherently imperfect’ ³⁴ and in Al Rawi the court noted that, even after the considerable volume of case law which the use of special advocates and closed material has generated, the system ‘ cannot be guaranteed to ensure procedural justice ’. ³⁵

The EU's courts have recently started to make an important contribution to these matters. The most famous judgment of the European Court of Justice (ECJ) in this field thus far is its decision in Kadi v Council . ³⁶ Kadi's assets were frozen under United Nations Security Council Resolution 1267. Among other matters, UNSCR 1267 requires all states to ‘freeze the funds and other financial assets of individuals and entities … as designated’ by a Sanctions Committee, established under UNSCR 1267 with the task of designating funds derived or generated from, and property owned or controlled by, the Taliban, Osama bin Laden or Al Qaida. Under Regulation 881/2002 the Council of Ministers decided that designations under UNSCR 1267 would be implemented within the European Union at EU level, rather than severally by each Member State. Article 2(1) of Regulation 881/2002 provides that ‘[a]ll funds and economic resources belonging to, or owned or held by, a natural or legal person … designated by the Sanctions Committee and listed in [the Annex to the Regulation] shall be frozen’. Kadi was designated by the Sanctions Committee, he was added to the list in the Annex, and his assets in the EU were accordingly frozen under Article 2 of Regulation 881/2002.

Kadi brought legal proceedings in what is now the General Court (formerly the Court of First Instance), seeking annulment of the EC Regulation as it applied to him. Among other matters, he claimed that his fundamental rights had been violated—specifically, his right to be heard, his right to property, and his right to effective judicial protection. The General Court ruled that it could not review the legality of Regulation 881/2002 against the standards imposed by fundamental rights in EU law, as the measure simply applied in the EU decisions that were taken at UN level by the Security Council's Sanctions Committee. While the Sanctions Committee might be bound by aspects of international law, it was not subject to EU law. Kadi appealed to the Court of Justice, which allowed his appeal, ruling that his right to be heard, his right to effective judicial protection, and his right to property had been violated.

While the ECJ's judgment in Kadi is in many respects striking, it is to be noted that, even after the judgment, Kadi's assets remained frozen. The Court gave the Council three months in which to comply with the requirements of the judgment—that is, three months in which to offer Kadi some form of hearing compatible with EU law. Kadi duly received an outline narrative summary of the reasons provided by the UN Sanctions Committee as to why his assets should be frozen and he was able to comment on this. Kadi attempted to refute the allegations made in the narrative summary and asked the Commission to disclose the evidence supporting the assertions and allegations made there. His comments were considered by the Commission, but nothing further was disclosed to him. The Commission concluded that ‘the listing of Mr Kadi is justified for reasons of his association with the Al Qaida network’ and decided that Kadi's assets should therefore remain frozen. ³⁷

Kadi brought fresh proceedings in the General Court, challenging the lawfulness of this decision. In September 2010 that court ruled in Kadi's favour, holding that ‘the mere fact of sending the applicant the summary of reasons cannot reasonably be regarded as satisfying the requirements of a fair hearing and effective judicial protection’. ³⁸ The court stated that ‘it is essential that the applicant be shown the inculpatory evidence used against him … , in such a way that he will have a fair opportunity to respond and to clear his name’. ³⁹ The court concluded as follows: that ‘the applicant's rights of defence have been “observed” only in the most formal and superficial sense’; ⁴⁰ that the procedure followed by the Commission ‘did not grant [Kadi] even the most minimal access to the evidence against him’; ⁴¹ that ‘no balance was struck between his interests … and the need to protect the confidential nature of the information in question’; ⁴² and that ‘the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him’. ⁴³ In coming to these conclusions, the court expressly adopted and followed the approach set out by the European Court of Human Rights in A v United Kingdom . ⁴⁴

The court also relied on an important passage in the judgment of the ECJ in E and F , a decision of the Grand Chamber of the ECJ handed down in June 2010. ⁴⁵ Like Kadi , E and F was a case concerning the freezing of terrorist assets, albeit that the regime with which E and F was concerned emanated from UN Security Council Resolution 1373 rather than UNSCR 1267. This regime is implemented in the EU under EC Regulation 2580/2001. E and F was concerned with an organization that had been listed by the Council of Ministers as being a terrorist organization whose assets were required to be frozen under Regulation 2580/2001. As the Council acknowledged, no reasons were given as to why the particular organization should be listed. The Court of Justice stated that such a lack of reasons frustrates the courts’ function of carrying out an ‘adequate review of the substantive legality’ of a decision to list an organization in this manner, ‘ particularly as regards the verification of the facts, and the evidence and information relied upon in support of the listing ’. The possibility of such review, the court further stated, is ‘indispensable’ if fairness is to be ensured. ⁴⁶

We have here, then, three contemporary views as to this particular facet of national security and the due process of law. First, we have the JCHR's assessment that the regime of special advocates and closed material as it is currently practised in the United Kingdom ‘is not capable of ensuring the substantial measure of procedural justice that is required’. Secondly, we have the Court of Appeal's view that, while there is a ‘high degree of confidence among the judiciary’ as to the use of special advocates, it is recognized that the system ‘cannot be guaranteed to ensure procedural justice’. And thirdly, we have the view of the ECJ that the court's ability to verify ‘the facts and the evidence and information relied upon’ is ‘indispensable’.

It is evident therefore that grave concerns as to the fairness of closed material exist at the very highest levels both of law and of politics and that these concerns are only partly tempered by the use of special advocates. The situation remains fluid—unstable, even. The Coalition Government appears to have recognized this, and has signalled that it intends in 2011 to publish a Green Paper on the use of sensitive information in the full range of judicial proceedings. ⁴⁷ As things stand, despite the undoubted advances seen in A , in AF , and in cases such as Bank Mellat , the use of closed material remains a matter of profound concern.

Binyam Mohamed

R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs is an extraordinary case, which raises in an acute manner a variety of difficult questions of national security law.

The factual and legal background is as follows. Mr Mohamed (hereafter BM), an Ethiopian national who was lawfully resident in the United Kingdom from 1994 to 2001, was arrested (in his view unlawfully) in Pakistan in April 2002. In September 2004, he arrived at the US detention facility at Guantanamo Bay. BM's evidence was that he was illegally detained first in Pakistan, then in Morocco, and subsequently in Afghanistan, before being taken to Guantanamo, that in each of these locations he was interrogated by and under the supervision of US officials, and that he was tortured and subjected to cruel, inhuman, and degrading treatment. The treatment that was meted out to him was horrific. A scalpel was taken to his genitals and to his chest. He was starved, beaten up, hung up by his wrists, deprived of sleep, deprived of lavatory facilities, denied legal representation, and confined for long periods in a pitch-black cell where he could hear the screams of other detainees.

In order to prepare his defence against criminal charges which he anticipated would be brought by the US authorities, BM commenced an action in the English courts seeking access to information in the UK's possession which, he claimed, would show that he had been tortured such that his confession evidence, upon which the United State proposed to rely, was unsafe and could not be properly relied upon. The legal principle on which BM based his action in the English courts is known as the Norwich Pharmacal principle. ⁴⁸ This provides that a third party who has become involved in wrongdoing may be legally obliged to give the victim of the wrongdoing any documentation in the custody of the third party to assist the victim in identifying and pursuing the wrongdoer.

The Divisional Court ⁴⁹ recognized that the case sought to apply the Norwich Pharmacal principle in ‘novel circumstances’ but held that it did apply and, moreover, that its various requirements were satisfied on the evidence. ⁵⁰ Some of that evidence in Binyam Mohamed was sensitive. Special advocates were appointed on BM's behalf and, as well as the open judgments of the Divisional Court and Court of Appeal which are analysed below, there exists also at least one closed judgment, which, of course, is not in the public domain.

The Divisional Court analysed the Norwich Pharmacal principle as comprising five elements: (i) was there wrongdoing?, (ii) was the UK government, however innocently, involved in the wrongdoing?, (iii) was the information necessary?, (iv) was the information sought within the available relief?, and (v) should the court exercise its discretion in favour of granting relief? ⁵¹ As to the first, it was accepted by the Secretary of State ⁵² that BM had established an arguable case that ‘after being subject[ed] to torture and cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the US authorities’ and that ‘whilst in Morocco he was subject to … torture during his interrogation there by or on behalf of the US authorities’. ⁵³ The court ruled that, in the light of this concession, it was not necessary for it to ‘determine whether there was in fact any wrongdoing by or on behalf of the United States Government’ and that it therefore would not do so. ⁵⁴

As to the UK's involvement, the court made the following findings. The Security and Secret Intelligence Services (MI5 and MI6) were interested in BM because of his residence in the United Kingdom and because of his connections with suspected persons here: indeed, the court stated that ‘we have no doubt’ that MI5 and MI6 were ‘right to conclude that BM was a person of great potential significance and a serious potential threat to the national security of the United Kingdom’. ⁵⁵ As such, MI5 and MI6 ‘had every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to co-operate as fully as possible with the US authorities to that end’. ⁵⁶ It is clear that there was extensive co-operation between the US and UK authorities. In May 2002, an MI5 officer, known in the case as Witness B, travelled to Pakistan to interview BM. ⁵⁷ Thereafter, MI5 sent to the US authorities questions which they wished to be put to BM. ⁵⁸ The United States regularly debriefed MI5 and/or MI6 on BM throughout 2002 and on into 2003 and 2004. ⁵⁹ The court found also that Witness B travelled three times to Morocco while BM was alleged to have been detained there, but this information came to the court's attention only after Witness B had given evidence; Witness B was not questioned on whether he had any contact with BM during these visits. ⁶⁰ The court's conclusions on this point were as follows: ‘the conduct of the Security Service facilitated interviews by or on behalf of the United States when BM was being detained by the US incommunicado and without access to a lawyer; the Security Service continued to facilitate the interviewing of BM by providing information and questions … until at least April 2003 in the knowledge of what had been reported to them in relation to the conditions of his detention and treatment …’. ⁶¹ The court's findings and conclusions about the UK's involvement with the alleged wrongdoing were contained in paragraphs 87 and 88 of its judgment. This becomes important for reasons we shall turn to shortly.

As to the third element of the Norwich Pharmacal test—whether the information is necessary—the court stated that ‘what the Foreign Secretary holds is information essential to a fair consideration of BM's case and a fair trial’. ⁶² On the fourth element, the court held that some but not all of the material held by the Secretary of State fell within the scope of Norwich Pharmacal . The material was divided into two types: information specific to BM (concerning such matters as his rendition and treatment while in detention), and general information (concerning such matters as rendition and treatment of detainees generally). ⁶³ The court held that the first type of information fell within the scope of the Norwich Pharmacal remedy but that the latter did not. ⁶⁴

In conclusion, the court ruled that, subject to any claim to public interest immunity (PII) (to which we shall turn in a moment), the Secretary of State should disclose to BM such documents and information in his possession as related to BM's detention, rendition, and treatment. In coming to this conclusion, it is to be noted that the court emphasized that it attached ‘particular significance to the nature of the prohibition on state torture’. ⁶⁵ All of this said, however, the court did not order the disclosure of the documentation. Instead, it gave the Foreign Secretary the opportunity to consider whether he should make a PII certificate in respect of it.

The Foreign Secretary did so, relying on the ‘control principle’. A number of the documents sought by BM were of US origin: they were passed by the US intelligence services to MI5 and MI6. It was apparent that, among other matters, they outlined the conditions of BM's detention, his treatment, and his questioning; it later emerged that there were 42 such documents in the possession of the Secretary of State. ⁶⁶ Intelligence sharing, the Secretary of State explained in his PII certificate, is essential between allies such as the United States and the United Kingdom: it is ‘vital to the national security of the United Kingdom’ such that ‘it saves lives’, he stated. ⁶⁷ To this end, the Secretary of State certified that ‘it is essential that the ability of the United States to communicate in confidence with the United Kingdom is protected; without this confidence they simply will not share information in the open manner that is currently the case’. ⁶⁸ It followed, in the Secretary of State's view, that ‘disclosure of [the 42] documents by order of our courts or otherwise by United Kingdom authorities would seriously harm the existing intelligence-sharing arrangements between the United Kingdom and the United States and cause considerable damage to the national security of the United Kingdom’. ⁶⁹

In his PII certificate, the Secretary of State objected not only to the disclosure of the 42 documents but also to the publication of seven paragraphs in the Divisional Court's judgment, paragraphs which (at the Secretary of State's request) had been redacted from the version of the judgment that was handed down. These paragraphs (amounting to about twenty-five lines of text) were redacted from paragraphs 87–88 of the court's judgment. These are the paragraphs, it will be recalled, which contain the court's findings and conclusions about the UK's involvement with and knowledge of BM's torture and mistreatment. As later became clear, the redacted paragraphs provided a summary of reports by the US authorities to MI5 and MI6 on the circumstances of BM's incommunicado and unlawful detention and of the treatment accorded to him. ⁷⁰ The redacted paragraphs had been included in the original judgment because, as the court explained, ‘the summary was highly material to BM's allegation that he had been subjected to torture and cruel, inhuman or degrading treatment’. ⁷¹ To my knowledge this is the first time that PII has been claimed in respect of a court judgment.

After a hearing to consider the Secretary of State's PII certificate, the Divisional Court ruled that the matter would have to be referred back to the Secretary of State, for the reason that, in his certificate, the Secretary of State had failed to address what the court referred to as ‘the abhorrence and condemnation accorded to torture’. As we saw above, this was a matter which the court had expressly highlighted in its first judgment. It was extraordinary that in his PII certificate the Secretary of State should have failed to make any mention of torture, especially so given that in the court's view it was a matter which the Secretary of State was required to take into account in deciding where the balance lay between the competing public interests of disclosure and protecting confidentiality. ⁷²

In a second PII certificate, the Secretary of State considered the issues of torture and of cruel, inhuman, and degrading treatment, and arrived at the same conclusion as he had come to in his first certificate. ⁷³ The matter duly returned to the Divisional Court.

One strand of the Secretary of State's argument was that, if disclosure of the US materials was to be ordered by a court of law, it should be the US courts and not the UK courts issuing the order. At the same time as BM's Norwich Pharmacal claim was being heard in London, other litigation concerning BM was in progress in the United States. There was a habeas corpus action brought on behalf of a number of Guantanamo detainees in front of the US District Court for the District of Columbia. There were also criminal proceedings in preparation for a reference to a Military Commission. In his PII certificates, the Secretary of State relied on assurances he had received from the US authorities that the documentation at issue in the English proceedings (the 42 documents) would be disclosed to BM's US lawyers in one or other of these cases. ⁷⁴ When it transpired, however, that only seven of the 42 documents had been disclosed in the US proceedings and that, even then, these seven had been apparently ‘heavily redacted’, BM's UK lawyers argued that ‘the only way in which the documents would be provided … was by order of’ the English court. ⁷⁵ It was known that the matter of disclosure in the US proceedings was to be imminently reviewed by the US District Court. The Divisional Court therefore decided that, despite finding the developments summarized here to be ‘deeply disturbing’, it would stay the matter pending this review by the US court. ⁷⁶

Shortly after this decision, two developments took place in the United States. First, the relevant US authority decided that criminal charges against BM would not be referred to the Military Commission. This decision was taken without prejudice, meaning that new charges could have been referred. In the event, however, BM was not re-charged. He was released from Guantanamo Bay in early 2009 and he returned to the United Kingdom. Secondly, the US Government made the 42 documents available, albeit in redacted format, in the habeas corpus proceedings before the US District Court. It followed from these developments that there was no further remedy sought by BM in the proceedings before the Divisional Court: the only issue in those proceedings which remained outstanding was whether the seven paragraphs of the court's first judgment, which had been redacted, should be made public.

From this point on, therefore, the nature of the tension between security and due process at issue in the case changed. Until this point in the proceedings, the principal issue had been between security, on the one hand, and the process which was due specifically to BM, on the other. The question for the court was how to balance considerations of security against BM's interests in accessing the information possessed by the Secretary of State. Because disclosure eventually took place in the United States, the Divisional Court never had to deliver a final ruling on this question. That is to say: the Divisional Court never ruled on whether the public interest in confidentiality did indeed outweigh BM's interest in disclosure as the Secretary of State had certified in his two PII certificates.

Now the question changed. Now the issue was between security, on the one hand, and the process which was due to the public at large, on the other. That is to say, the question for the court was how to balance considerations of security against the public interest in the open administration of justice. The Divisional Court expressed it as follows: ‘the issue which arises here is not the balance between the public interest and fairness to a litigant by making material available to him to enable a fair trial to take place. … It is a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.’ ⁷⁷

What the two questions in the case have in common, of course, is that each was framed in the context of a dispute about torture. That fact, ever present in the minds of the judges in the Divisional Court (and playing a role, too, in the judgment of the Court of Appeal, as we shall see) weighed heavily in the balance even if it was not always decisive.

It was common ground in the case that both questions should be determined in accordance with the law of PII as set down by the House of Lords in Wiley . ⁷⁸ That is to say: first, it must be considered whether the material is relevant to legal proceedings. Secondly, the public authority (here the Foreign Secretary) must consider whether disclosure would entail a real risk of serious harm to an important public interest (such as national security). Since 1997 the Government has accepted that this assessment must be made on the basis of the content of the material in question, not on the basis of what sort (or class ) of material is in issue. If, applying the ‘real risk of serious harm’ test, the material is assessed to attract PII, the third stage is for the public authority to decide whether, in its view, the public interest in non-disclosure is outweighed by the public interest in disclosure. The public authority must consider and balance the relevant competing public interests; if the view is taken that the overall public interest favours non-disclosure, the public authority will make a certificate to that effect to the court. The court is the ultimate decision-maker, its assessment being the final stage of the process. As part of its assessment the court will consider whether alternatives to full disclosure, whereby the risk of harm to the public interest might be lessened, are available and, if so, whether they would be sufficient to meet the needs of justice.

As to the first stage, the Divisional Court in Binyam Mohamed offered several reasons why the publication of the seven paragraphs redacted from its first judgment was necessary in the interests of justice. Under both the common law and Articles 6 and 10 ECHR ‘courts must do justice in public unless it can be shown justice could not otherwise be done’. This acts ‘as a safeguard against judicial arbitrariness, idiosyncrasy or inappropriate behaviour’ and in favour of ‘the maintenance of public trust, confidence and respect for the impartial administration of justice’. Further, ‘the public sitting of a court enables fair and accurate reporting to a wider public and makes uninformed and inaccurate comment about the proceedings less likely’. ⁷⁹ Unsurprisingly given the context of this case, the court placed particular emphasis on the democracy-reinforcing aspect of open justice:

The public sittings of the courts and their public decisions are one of the means through which, in a democratic society information enters the public domain … If the redacted passages containing a gist of what was reported by officials of the United States Government were made public that would enable more informed and accurate public debate to take place and Governments to be held to account. ⁸⁰

In the court's view this was especially apposite in the current case because of the ‘particular resonance’ of torture. The court quoted Lord Hoffmann's dictum in A (No 2) that ‘the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system’. ⁸¹ The court concluded that ‘it is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture’. ⁸²

Despite all this, the court did not order that the paragraphs now be published. The Secretary of State had certified in his PII certificates—and particularly in his second one—that ‘if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided’. ⁸³ Relying on dicta from the House of Lords in Rehman and Corner House , ⁸⁴ the court ruled that ‘the judgment as to whether the national security of the United Kingdom will be compromised … is a matter on which the Foreign Secretary is the expert and not ourselves’ ⁸⁵ and, further, that there is ‘no basis’ in law ‘on which the judgement of the Foreign Secretary as to the danger to national security can properly be questioned’. ⁸⁶ This was despite the fact that the court clearly had great difficulty in accepting the Secretary of State's view.

It is hard to resist the sense that the court was at least disturbed by and quite possibly was exceedingly angry about what the Secretary of State had certified as to the position of the US Government. As the court noted, ‘there was nothing in the redacted paragraphs that would identify any agent or any facility or any secret means of intelligence gathering’; nor could anything in the redacted paragraphs possibly be described as ‘highly sensitive classified US intelligence’. ⁸⁷ Moreover, it was, in the court's view, ‘difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them’. ⁸⁸ The court was reduced to wondering aloud why ‘a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials … where the evidence was relevant to allegations of torture … , politically embarrassing though it might be’. ⁸⁹

Within a short time of this judgment being handed down—and this was the Divisional Court's fourth judgment in the case—BM's lawyers made an application to the court to have the judgment re-opened. The basis of their application was that the court had been misled (or, perhaps, that there had simply been a misunderstanding) about the position of the US Government. As we just saw, in its fourth judgment the court understood the position to be that US/UK intelligence sharing would risk being jeopardized if the court published the seven redacted paragraphs, as such action would amount to a breach of the ‘control principle’. The court did not make its decision on the basis of the ‘control principle’ alone, but because of the specific consequences spelt out by the Bush administration, consequences which the court described as a ‘threat’ whereby the United States would reconsider its intelligence-sharing relationship with the United Kingdom. ⁹⁰ Now, the court's fourth judgment was handed down on 4 February 2009. Two weeks prior to the court handing down this judgment, President Obama was inaugurated and his administration assumed office. The court agreed to re-open the judgment on the basis that, even if the Obama administration continued to insist on the ‘control principle’, it was not clear whether it would carry out the ‘threat’ made by its predecessor administration that, were the control principle to be breached through the publication of the seven redacted paragraphs, it would reconsider its intelligence-sharing relationship with the United Kingdom.

The Secretary of State provided a third PII certificate in which he maintained that ‘the change in the US Administration on 20 January 2009 did not alter in any way the fundamental objection of the United States to the public disclosure of its intelligence material, or of information derived from that material, by the United Kingdom (including by our courts)’. ⁹¹ In its fifth judgment, the court stated, as it had done in its fourth, that it would need to defer to the position of the Secretary of State ‘provided there was an evidential basis’ for his opinion. ⁹² After a detailed examination of the available evidence, however, the court concluded in its fifth judgment that there was not: ‘the evidence simply does not sustain the Foreign Secretary's opinion that there is a serious risk’ that the Obama administration would reconsider its intelligence-sharing relationship with the United Kingdom were the seven paragraphs of the court's first judgment to be published. ⁹³ The court accepted that there was ‘some small risk’ ⁹⁴ of this but, when weighed against the ‘overwhelming’ ⁹⁵ public interest in making the paragraphs public, it was clear to the court that it should order the seven paragraphs to be restored to its first open judgment, and it did so. ⁹⁶ The court stated that, in so ruling, it did not consider that there was any infringement of the ‘control principle’, for the reason that, ‘in any democratic society governed by the rule of law’, information as to how officials admitted treating a detainee during his interrogation could be characterized neither as ‘secret’ nor as ‘intelligence’. ⁹⁷

At this point, farce threatened to descend—not that any of this is remotely funny. The Secretary of State objected to the publication initially of six (subsequently of four) paragraphs of the court's fifth judgment, paragraphs which shed light on what was contained in the seven redacted paragraphs of the court's first judgment. In a sixth (and final) judgment, the Divisional Court ruled that the four paragraphs of its fifth judgment should be published, along with the original seven redactions from the first judgment. ⁹⁸ The Secretary of State made it clear that he would appeal these decisions to the Court of Appeal, however, so all the passages in issue remained redacted pending the decision of the Court of Appeal. ⁹⁹

The Foreign Secretary's argument before the Court of Appeal, then, was that the Divisional Court's decisions in its fifth and sixth judgments that seven paragraphs of its first judgment and four paragraphs of its fifth judgment should be published were erroneous in law. The appeal was heard before the Lord Chief Justice (Lord Judge CJ), the Master of the Rolls (Lord Neuberger MR), and the President of the Queen's Bench Division (Sir Anthony May). The Court of Appeal unanimously dismissed the Foreign Secretary's appeal, and the result was that the various paragraphs of the Divisional Court's judgments which had hitherto not been made public were, finally, released. ¹⁰⁰ I will discuss the reasoning of the Court of Appeal in a moment. First, however, I want to tell the extraordinary story of what happened when the Court of Appeal's judgment was given to the parties, and to examine the various passages from the judgments which the Government had tried to suppress but which are now in the public domain.

The judgment of the Court of Appeal was passed in confidence to the parties on 5 February 2010; the judgment was due to be handed down (ie made public) on 10 February. It is perfectly normal for court judgments to be passed in confidence to the parties two or three days before they are handed down: among other things, it gives the parties the opportunity to correct any typographical errors in the judgment, and so forth. Extraordinarily, however, in this instance counsel for the Secretary of State (Jonathan Sumption QC) wrote on 8 February to the court inviting the Master of the Rolls to make substantial amendments to the content of one paragraph of his judgment (paragraph 168). Lord Neuberger MR agreed to make a series of changes and the judgment as handed down on 10 February contained a much shorter version of paragraph 168 than had the draft judgment distributed in confidence to the parties on 5 February.

Mr Sumption's letter to the court was then leaked to the press, and it was published. ¹⁰¹ Mr Sumption's letter contained a lengthy summary of the suppressed (first) draft of paragraph 168, as well as the reasons why, in his client's view, it should be edited down. After considering further submissions from the parties, the Court of Appeal issued a second judgment on 26 February in which a full version of paragraph 168 was re-instated. ¹⁰² So far as is material, this (final) version of paragraph 168 reads as follows:

… it is also germane that the security services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that ‘they operated in a culture that respected human rights and that coercive interrogation techniques were alien to the services’ general ethics, methodology and training’ (para. 9(iv) of the first judgment), indeed they ‘denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the US Government’ (para. 44(ii) of the fourth judgment). Yet in this case that does not seem to have been true: as the evidence showed, some security services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular Witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by security services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on … . Not only is there some reason for distrusting such a statement, given that it is based on security services' advice and information, because of previous, albeit general, assurances in 2005, but also the security services have an interest in the suppression of such information.

The contrast between this paragraph and the substantially revised version that had been handed down on 10 February is obvious. That version had read as follows:

the Foreign Secretary must have prepared the [PII] certificates on the basis of advice from members of [MI6] and [MI5], whose involvement in the mistreatment of Mr Mohamed has been the subject of findings by the Divisional Court. Having said that, Witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr Mohamed.

Mr Sumption did not suggest that the publication of paragraph 168 would pose a risk to national security. He simply thought that it was unfair: first, he suggested that it was reflected neither in the evidence before the court nor in the submissions made to the court and, secondly, he objected that what he called such ‘extreme’ and ‘sweeping criticisms’ should not be made without first affording to those responsible the opportunity to respond. He was also concerned that it may prejudice criminal proceedings which may be brought in respect of the conduct of Witness B. While, in the end, Lord Neuberger thought that these concerns had some merit, he was also of the view that the revised version of paragraph 168 was ‘too attenuated to explain [his] reasoning properly’. ¹⁰³ Perhaps, we should give the last word on this to Mr Sumption. As he correctly stated in his letter to the court, the Master of the Rolls’ observations ‘constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole’ suggesting as they do that the courts ‘should distrust any UK government assurance based on the Service's advice and information’. Lord Neuberger's observations, if applied widely, could mark ‘an unprecedented breakdown in relations between the courts and the executive in the area of public interest immunity’. Indeed they could.

So much for paragraph 168. I turn now to the seven paragraphs of the Divisional Court's first judgment which were released following the Court of Appeal's decision. These read as follows:

• It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

• It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

• It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and “disappearing” were played upon.

• It was reported that the stress brought about by these deliberate tactics was increased by him being shackled during his interviews.

• It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

• We regret to have to conclude that the reports provided to [MI5] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

• The treatment reported, if it had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorize the treatment reported, it could easily be contended to be at the very least cruel, inhuman and degrading treatment of BM by the United States authorities.

These paragraphs very strongly reinforce the impression that MI5 knew that BM was being mistreated before Witness B interviewed him in Pakistan, as well as thereafter and, accordingly, that there is at least a strongly arguable case that MI5 was complicit in his torture. The question which the release of these paragraphs raises is obvious: did the UK Government really object to the inclusion of these passages in the court's judgment because of the control principle, because of US threats as to the consequences were the control principle to be breached, or because the Government sought to cover up the extent of MI5's knowledge of and complicity in torture, inhuman, and degrading treatment? On the one hand, the Guardian was quick to claim that the seven paragraphs ‘prove MI5 was complicit in torturing’ BM ¹⁰⁴ and reported on the day after the Court of Appeal's judgment that ‘US officials … played down claims that the appeal court's disclosure of CIA information passed to MI5 will damage intelligence sharing with Britain’, citing a White House official (unnamed!) who reportedly said that there would be no review of intelligence sharing with the UK ‘because the need for close co-operation was greater now than ever’. ¹⁰⁵ On the other hand, MI5 went directly on the offensive, its Director General (Jonathan Evans) writing in the Daily Telegraph on 11 February that ‘the reason the Government appealed against the Divisional Court judgment in the Binyam Mohamed case was not to cover up supposed British collusion in mistreatment, but in order to protect the vital intelligence relationship with America’. ¹⁰⁶

Both the JCHR and the international NGO, Human Rights Watch, have published reports in which they make clear their concerns about UK complicity in torture. These concerns arise not only from Binyam Mohamed's case, but his story plays a prominent role in their respective analyses. Complicity in torture is contrary to international law: it is expressly prohibited by Article 4 of the UN Convention against Torture (UNCAT). The UK ratified this Convention in 1988. According to the JCHR, for the purposes of State responsibility (as distinct from individual criminal responsibility), complicity in this context ‘means simply one State giving assistance to another State in the commission of torture, or acquiescing in such torture, in the knowledge, including constructive knowledge, of the circumstances of the torture which is or has been taking place’. ¹⁰⁷ Continuing, the JCHR stated that ‘We are in no doubt that … the provision of questions’ for a person's interrogation is a form of ‘assistance and facilitation capable of amounting to complicity in torture by the State concerned when … done in the knowledge that the person concerned is being, has been or will be tortured by the State which is dealing with him, or where that ought to be obvious to the State providing the assistance.’ ¹⁰⁸ Human Rights Watch agreed. ¹⁰⁹

Both the JCHR and Human Rights Watch strongly argued in their reports that there was an ‘accountability gap’ as regards allegations of UK complicity in torture. The JCHR reported that, despite ‘repeated attempts’, it had failed to obtain oral evidence from ministers. ¹¹⁰ It described the system for ministerial accountability for security and intelligence matters as ‘woefully deficient’, ¹¹¹ arguing that the Intelligence and Security Committee had ‘failed to provide … proper ministerial accountability’ ¹¹² for the reasons that: it meets in private, it reports to the Prime Minister rather than to Parliament, it is staffed by Government lawyers rather than parliamentary staff, and its reports are usually redacted, often substantially so. ¹¹³ The JCHR concluded that ‘a disturbing number of credible allegations of UK complicity in torture have emerged, and none of the existing accountability mechanisms have come anywhere close to answering the questions raised or ensuring that the relevant information is placed in the public domain’. ¹¹⁴ We will return to some of these matters in a moment.

Before leaving the Binyam Mohamed case, we need first to examine something of the Court of Appeal's reasoning in support of its conclusion that the redacted paragraphs be published. While the Court of Appeal's decision was unanimous, there was a marked difference in reasoning between Lord Judge CJ, on the one hand, and Lord Neuberger MR and Sir Anthony May, on the other. The latter two judges would have reached the opposite conclusion but for a development which had taken place in the United States in the meantime. This development was that the US District Court for the District of Columbia had ruled (i) that the allegations made by BM as to his mistreatment were true and (ii) that his mistreatment amounted to torture. This ruling came in a case to which the US Government was a party, and the US Government accepted the ruling. By the time the Court of Appeal delivered its judgment in Binyam Mohamed , therefore, BM's torture while in custody at the behest of the US authorities had been judicially found to be a matter of fact and was in the open ; there was accordingly no remaining confidentiality in the matter, and there was therefore no reason for the various paragraphs of the Divisional Court's judgments to remain redacted. But for the ruling of the US District Court, both Lord Neuberger and Sir Anthony May would have held that the Divisional Court was wrong in its fifth and sixth judgments to hold that the redacted paragraphs should be released. Their reasons were that the lower court had given ‘insufficient weight to the views of the Foreign Secretary’ that publication would harm the national interest and had ‘overestimated the public interest in having the redacted paragraphs published’. ¹¹⁵

In this respect the judgment of the Court of Appeal is actually rather worrying. Despite the fact that BM ‘won’ and despite the melodrama of paragraph 168 and all that, in its detail and in its reasoning Lord Neuberger's judgment gives several causes for concern. His Lordship's approach echoed that of Lord Hoffmann in Rehman . ¹¹⁶ Like Lord Hoffmann, Lord Neuberger described it is ‘inherent in the doctrine of the separation of powers’ that, ‘as a matter of principle, decisions in connection with national security are primarily entrusted to the executive, ultimately to Government ministers, and not to the judiciary’. ¹¹⁷ Even though, since Conway v Rimmer , ¹¹⁸ it has been clear that it is the court, and not the Government, which is ultimately responsible for deciding what should be disclosed in legal proceedings, Lord Neuberger insisted that the Secretary of State is ‘far better informed, as well as having far more relevant experience, than any judge, for the purpose of assessing the likely attitude and actions of foreign intelligence services as a result of the publication of the redacted paragraphs, and the consequences of any such actions so far as the prevention of terrorism in this country is concerned’. ¹¹⁹ Lord Neuberger several times repeated in his judgment that there were ‘real reasons’ ¹²⁰ and ‘substantial grounds’ ¹²¹ for being sceptical as to whether national security would actually be harmed were the paragraphs to be published: at one point he declared that he was himself ‘strongly sceptical about the notion that there would in fact be a reduction in the supply of information’ from the United States. ¹²² His Lordship also indicated that, on moral grounds, he ‘may disapprove’ of the attempt to keep the paragraphs redacted, suggesting that the real reason may have as much to do with ‘embarrassment’ as with anything else. ¹²³ But despite these observations, Lord Neuberger insisted that ‘any judge must accord very substantial weight to the Foreign Secretary's view as to the existence and extent’ of the risk to national security. ¹²⁴

With great respect to Lord Neuberger, this reasoning seems flawed in three respects. First, no reason is given explaining why the court should defer to the judgment of the Secretary of State where that judgment is either groundless or immoral (let alone, as it was here, where it is both). The approach of the Divisional Court is strongly to be preferred: there must be an evidential basis for the Secretary of State's view as to what is required in the interests of national security. Where there is none—and here, as we have seen, there was no evidence in support of the view that there was a serious risk—it is the duty of the court to rule accordingly and not meekly to defer to spurious claims made by the Government.

Secondly, Lord Neuberger (and indeed also Lord Judge and Sir Anthony May) overlooked, without comment, the Divisional Court's finding ¹²⁵ that the control principle was not even engaged in the context of the seven paragraphs. That principle is concerned with the sharing between allies of secret intelligence . As the Divisional Court made clear (and as Lord Judge accepted), there was nothing in the seven paragraphs that could be classed as secret intelligence. This was why the Divisional Court had stated in its fifth judgment that the publication of the seven paragraphs would not infringe the control principle. This matter—no small detail in the case—was overlooked by all the judges in the Court of Appeal, each of whom proceeded on the (unexamined) basis that the control principle applied. This is a frequent problem in the law of national security: because something touches on the work of MI5 or MI6, all too often it is immediately assumed that it must therefore raise some deeply sensitive matter of national security. The ‘top secret’ stamp is straight away reached for, without a second thought as to whether the matter really is secret at all. By the time of its fifth judgment in BM the Divisional Court was wise to this, and saw through it. It is disappointing, to say the least, that the Court of Appeal did not appear even to consider the matter and seemed uncritically to accept that the control principle applied just because the Foreign Secretary said it did.

A final criticism of Lord Neuberger's judgment in BM is that his starting point is wrong. As we saw, he commenced with the separation of powers. But the conclusion to draw from the separation of powers is not that the due process of law must give way in the face of Government claims as to what national security requires. It is that claims about what is required in the name of national security must give way if they cannot satisfy the court. This is a matter which in recent years first-instance judges have worked hard to establish in case law concerning such diverse aspects of national security law as control orders, de-proscription, and deprivation of citizenship. ¹²⁶ It is deeply unfortunate that Lord Neuberger should have overlooked this; it is imperative that his judgment in Binyam Mohamed should not now be permitted to undercut it.

Sir Anthony May agreed with Lord Neuberger that, but for the intervention of the US District Court, he would have held that the Divisional Court was correct in its fourth judgment that the redacted paragraphs should remain redacted and wrong in its fifth judgment that they should be published. Sir Anthony's reasons, however, are subtly different from Lord Neuberger's. Sir Anthony placed the same emphasis as had the Divisional Court in its fifth judgment that ‘It is open to a court to reconsider the [national security] assessment of a Secretary of State where there is no evidential basis’ for it. ¹²⁷ Unlike the lower court, Sir Anthony then found that there was sufficient evidential basis for the Foreign Secretary's assessment. Even if it was unlikely that the US would reduce its intelligence sharing with the United Kingdom, Sir Anthony ruled, other countries might do so and, for this reason, the court should not reject the Secretary of State's judgment. ¹²⁸

Lord Judge CJ, in contrast, placed no weight on the intervening ruling of the US District Court and held that regardless of this the Divisional Court had been correct to rule that the various paragraphs of its judgments should be released: ‘the arguments in favour of publication of the redacted paragraphs are compelling’, he ruled. ¹²⁹ First, and as we have seen, the passages contained nothing ‘which would be of interest to a terrorist or criminal’. ¹³⁰ Secondly, and moreover, it would be ‘hard to conceive of a clearer case’ for the disapplication of the control principle than ‘a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture’. ¹³¹

The Government was swift to portray the decision of the Court of Appeal as a victory (despite the actual result). Within three hours of the judgment being handed down, the Foreign Secretary made a statement to the House of Commons in which he welcomed the fact that, as he put it, ‘crucially, the court has today upheld the control principle’. Mr Miliband described the judgment as having ‘specifically vindicate[d] the careful assessment that releasing the seven paragraphs without the consent of the United States would have damaged the public interest’. ¹³² Mr Miliband's view was subsequently endorsed by the Intelligence and Security Committee, which stated as follows in its annual report for 2009–10: ¹³³

The Committee is concerned that the publication of other countries’ intelligence material, whether sensitive or otherwise , threatens to undermine the key ‘control principle’ of confidentiality which underpins relations with foreign intelligence services, and that this may seriously damage future intelligence co-operation. We therefore welcome the Court of Appeal’s recognition of the importance of the ‘control principle’.

If the Binyam Mohamed case is remembered only for this it will be a travesty. Indeed, if the Binyam Mohamed case is relied upon as authority for the control principle in the way that the Foreign Secretary and the Intelligence and Security Committee assert, it will be a grave injustice. Until Binyam Mohamed there was no authority for the proposition that the control principle was recognized (let alone enforceable) at law. As we have seen, the Court of Appeal seemed uncritically to accept that the control principle applied in this case simply because the Foreign Secretary asserted that it applied. There needs to be a full examination of the genesis and veracity of the control principle: for how long has it truly been understood to underscore intelligence sharing? ¹³⁴ And much fuller consideration needs to be given to its scope and legal status before it is relied upon in a court of law, especially when the context is one of information that is not sensitive and that relates to a matter as abhorrent as torture.

Al Sweady

In R (Al Sweady) v Secretary of State for Defence , ¹³⁵ the claimants sought a court order that a number of Iraqi deaths and that allegations of serious mistreatment by British soldiers of a number of Iraqis should be independently investigated. Among the claimants’ allegations were that British soldiers had murdered, tortured, and mutilated a number of Iraqis after a particularly fierce battle (known as Danny Boy) in 2004. There were several disputes of fact between the parties and the case gave rise to the need for the Ministry of Defence (MOD) to consider the disclosure of a substantial volume of material. An MOD minister signed a PII certificate in which it was claimed that the disclosure of certain documents would not be in the public interest for reasons of national security. It transpired, however, that a substantial number of these documents were in fact already in the public domain, having been disclosed in earlier court martial proceedings; and that the MOD had agreed that more of the material should be disclosed to the participants in a public inquiry (the Baha Mousa inquiry) which is considering similar allegations of murder and torture concerning other British soldiers in Iraq. ¹³⁶

When the MOD realized that its PII certificate was flawed in this way, it failed to do anything about it—it failed even to notify the court—for some two months. This was a failure about which the court was understandably extremely angry, and of which it was sharply critical in its judgment, describing it as ‘lamentable’ that the integrity of the PII system should have been compromised in this manner. ¹³⁷ In a subsequent judgment in the same case the court further criticized the MOD's ‘consistent and repeated’ failures to comply with its obligations as to disclosure, failures which had resulted in considerable delay, in an extraordinary waste of court time, and in an alarming escalation of legal fees (upwards of £2 million!), which, of course, the MOD was ordered to pay. ¹³⁸

In the event the Secretary of State agreed that the allegations made by the claimants should be independently investigated, and the case was stayed. ¹³⁹ As it stands, the Al Sweady case is a stark reminder that judicial devices to ensure that parties to litigation (and, indeed, that courts themselves) have appropriate access to national security information depend upon the court being able to have confidence that what the Government claims in a PII certificate is accurate and reliable. It is also a stark reminder that courts will not always have that luxury. ¹⁴⁰ Sometimes the Government will make a mistake. Sometimes the Government's internal administrative systems are such that the operation of a claim to PII cannot be properly checked and assessed within the Department—this case resulted in a number of administrative reforms designed to address the systemic failures in the MOD which Al Sweady identified and of which the court was sharply critical. And sometimes officials will act, whether deliberately or carelessly, to undermine the system. All three occurred in Al Sweady : that is, there were mistakes, there were systemic failures of public administration, and—quite appallingly—there were individual actions which made matters even worse. These issues came to light only because of the persistence, determination, and attention to detail shown by the claimants’ legal team, to whom the court rightly paid tribute. ¹⁴¹

There is another matter, too, of which Al Sweady is an uncomfortable reminder. In the Binyam Mohamed case and in the reports from the JCHR and from Human Rights Watch which were referred to above, it is stated and frequently repeated that when it comes to torture and the ‘war on terror’, the issue for the United Kingdom is not the treatment which it has meted out itself, but its complicity in the treatment which has been meted out by others. Al Sweady , like the Baha Mousa inquiry, however, is not concerned with allegations of the UK's complicity in torture. Rather, it is concerned with allegations that British soldiers engaged directly in the torture (and, indeed, also in the murder) of detainees in Iraq. In a related action— Ali Zaki Mousa v Secretary of State for Defence —the Divisional Court in July 2010 granted permission to the claimants to bring judicial review proceedings. ¹⁴² The claimants, representative of more than 100 Iraqis, allege that they were ill-treated in British military detention in Iraq; they sought an order to compel the Secretary of State to hold an independent inquiry to investigate the alleged breaches of their rights under Article 3 ECHR. ¹⁴³ The nature of the ill-treatment alleged is summarized in a document provided to the court in the following terms:

The claimant, an Iraqi citizen, was arrested on 16 November 2006 by British soldiers. They beat him severely, slammed him against a wall and forced him into a stress position in which they stood on his knees and back. His 11 month old son’s arm was stamped on and broken … The soldiers … hooded and handcuffed the claimant … He was interrogated aggressively, struck with a stick and threatened with Guantanamo. In between sessions he was forced into a stress position in the cold for 30 hours and stoned and beaten. He was twice taken to medics, but not to the toilet, so he urinated on himself …

And so it goes on—there is considerably more. After a year this particular claimant was released, but with no explanation of his detention. The property which had been taken from him was never returned. ¹⁴⁴

Even if it is the case that the UK's security and secret intelligence services have not practised torture during the war on terror and that the most serious charge which can be laid upon them is that they have been complicit in torture, this does not appear to be the case with regard to our armed forces. In A (No 2) , it was Lord Hoffmann who stated that ‘the use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it’. ¹⁴⁵ There is a stain on the honour of this country. It is not just that we appear to have been complicit in torture. Awful enough though that is, it is worse. Unless the allegations made in the Baha Mousa inquiry and in the Al Sweady and Ali Zaki Mousa cases are disproved, that stain will remain.

Al Rawi

Al Rawi was a damages action in the law of tort (we encountered the case briefly above). The case was brought by six claimants, including Binyam Mohamed, who had been detained ( inter alia ) at Guantanamo Bay. They sought damages from the Security Service, the Secret Intelligence Service, the Attorney General, the Foreign and Commonwealth Office, and the Home Office on the basis that each of these departments or agencies of the UK Government had contributed towards the claimants’ detention, rendition, and alleged mistreatment. The claims were brought under the following heads: false imprisonment, trespass to the person, conspiracy to injure, torture, negligence, misfeasance in public office, and breach of the Human Rights Act 1998.

The Government sought to have the trial held under the emergent principles of ‘closed material procedure’ whereby disclosure would be made by the Government not to the claimants and their lawyers but only to the court and to special advocates. We saw above that special advocates have been employed in a variety of legal proceedings in the United Kingdom, but this was the first time that their use had been suggested in a civil claim for damages. The claimants resisted the Government's proposal and argued that the ordinary principles of PII should apply instead.

There are two key differences between PII and closed material procedure. The first is that under closed material procedure there is no balancing exercise—that is to say, neither the Government nor the court is required to weigh the public interest in disclosure against the public interest in non-disclosure. Rather, the Government decides what evidence should remain closed and serves that material only on the special advocate. Once evidence is classed as being sensitive, there is no weighing of the reasons why it should be withheld against the reasons why, in the interests of justice, it should be disclosed: it is automatically withheld. It will then remain closed subject only to the special advocate's ability to persuade the court otherwise (and we saw above how incredibly difficult that is in practice). The rule in the law of PII is that, as Lord Templeman expressed it in Wiley , ‘a claim to public interest immunity can only be justified if the public interest in preserving the confidentiality of the document outweighs the public interest in securing justice’. ¹⁴⁶ This rule does not apply to closed material.

The second difference is that material which is subject to PII is inadmissible. No one may rely on it, including the court. Closed material, in contrast, is admissible and may be relied on not only by the Government but also by the court (who will deal with issues arising on the closed material in a closed judgment).

In Al Rawi , it was argued as a preliminary issue whether it could be lawful and proper for a court to order that closed material procedure should be adopted in a civil claim for damages. This preliminary issue was narrowly constructed so as to focus on the point of principle alone: it did not include consideration of whether closed material procedure should actually be adopted in the Al Rawi litigation, nor did it include consideration of how, precisely, the procedure would work in the context of a civil trial. In the High Court, Silber J held that a trial could proceed on the basis of closed material procedure, ¹⁴⁷ but his decision was overturned in a notable and strongly worded judgment in the Court of Appeal. ¹⁴⁸

Given that the question before the court was a pure question of law, Silber J's judgment at first instance was, as you would expect, a careful and detailed study of the authorities. Relying on dicta from appeal court judgments in Rehman , ¹⁴⁹Roberts v Parole Board¹⁵⁰ and Malik v Manchester Crown Court , ¹⁵¹ among others, the judge concluded that ‘there is clear authority that the use of the closed material procedure and a special advocate can be permitted but only in exceptional cases and as a last resort to ensure fairness’. ¹⁵² While it was equally clear that no court had hitherto permitted this in a civil claim for damages, Silber J ruled that none of the authorities cited by the claimants prevented such a course of action in principle. He further ruled that there was nothing in the case law concerning PII nor in the Civil Procedure Rules which prevented this.

The approach adopted by the Court of Appeal was markedly different. Although the Court of Appeal referred to and discussed previous authorities, its judgment was deliberately crafted to read more like a statement of first principles than an essay in the analysis of precedent. The court was composed of Lord Neuberger MR and Maurice Kay and Sullivan LJJ. The judgment of the court, delivered by the Master of the Rolls, was in ringing tones. ‘We have concluded,’ the court declared, ‘that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so … to order a closed material procedure in relation to the trial of an ordinary civil claim’. ¹⁵³ The court's ‘primary reason’ was that ‘by acceding to the [Government's] argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles’. ¹⁵⁴ Namely, the principle that ‘under the common law, a trial is conducted on the basis that each party and his lawyer sees and hears all the evidence and all the argument seen and heard by the court’. ¹⁵⁵ This principle was described by the court has being ‘an aspect of the cardinal requirement that the trial process be fair’. ¹⁵⁶ More ‘fundamental principles of the common law’ were cited in aid of the court's conclusion: that a party to litigation should know the reasons why he won or lost, that trials should be conducted in public, and that judgments should be given in public. ¹⁵⁷ High authority was cited in support of these propositions, including remarks of Lord Shaw in Scott v Scott¹⁵⁸ and of Lord Diplock in Attorney General v Leveller Magazine . ¹⁵⁹ Intriguingly, the court also cited its judgment in Binyam Mohamed , but it was not his own judgment which Lord Neuberger relied on but that of the Lord Chief Justice, Lord Judge. ¹⁶⁰

Statutory sources permitting the use of closed material and special advocates were described by the court as ‘encroachments into these principles’. ¹⁶¹ The court then stated that:

In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial. ¹⁶²

The consequence was that the trial in Al Rawi would have to be conducted in accordance with the principles of PII. The Government claimed to have identified upwards of 250,000 documents which were potentially relevant to the litigation. A large number of these would have to be considered by the Government's legal team, and indeed by ministers, with a view to deciding what claims as to PII would be required. ¹⁶³

We have good reason to be nervous about all of this. While the decision of the Court of Appeal in Al Rawi is to be welcomed as a significant restatement of legal principle, one may surely be forgiven for thinking, especially in the light of Al Sweady and Binyam Mohamed , that if PII is the answer, we may be asking the wrong question. No matter how assiduous the claimants’ legal team in Al Rawi , it would have been extremely difficult to be confident that, had the case come to trial, appropriate disclosure would have been made.

As it happens, however, the case will not come to trial. The Security and Secret Intelligence Services were said to be desperate to have the litigation stopped. Not only was it consuming resources, of course, but it was also causing legal uncertainty which, it was claimed, was having a deleterious effect on operational activities. Shortly after he became Prime Minister David Cameron announced in the House of Commons that the Government would offer mediation to the claimants in the case and that, as soon as it and a number of other legal proceedings had settled or been otherwise completed, an independent inquiry would be conducted to investigate the ongoing claims made about British complicity in torture, rendition, and mistreatment of detainees. ¹⁶⁴ It was announced that Sir Peter Gibson, the current Intelligence Services Commissioner, would chair the inquiry, a choice that was immediately objected to by some commentators on the basis that, as Commissioner, he lacked full independence from the Services. ¹⁶⁵ The mediation with the claimants in Al Rawi was settled in November 2010. All details of the settlement were made subject to a legally binding confidentiality agreement ¹⁶⁶ (and, to date, no details have leaked into the public domain).

At the time of writing, the Gibson inquiry has yet to commence its work. While the civil claims have settled, police investigations as to potential criminal liability are ongoing; the criminal proceedings need to be concluded before the Gibson inquiry may get underway. Even when it does so, its ambit will be limited and is expressly designed not to cover the full range of allegations regarding torture that we have encountered here. The Gibson inquiry will examine allegations concerning the UK's involvement ‘in improper treatment of detainees held by other countries in counter-terrorism operations overseas’. That is, the inquiry is going to be concerned only with the allegations about MI5/MI6 complicity in torture. Allegations relating to ‘military detention operations in Iraq and Afghanistan’, including allegations that HM Armed Forces personnel were directly involved in committing acts of torture, are expressly excluded from the ambit of the Gibson inquiry. These, we are told, are ‘being addressed by separate arrangements made by the Ministry of Defence’, ¹⁶⁷ a reference, presumably, to the ongoing Baha Mousa and Al Sweady inquiries. ¹⁶⁸

In terms of national security and due process, while we are assured by the Prime Minister that the inquiry will have the ‘full support and cooperation’ of all relevant parts of Government, ‘including the intelligence services’, we already know that much of the inquiry's work will be carried out in closed session. ¹⁶⁹ It is inevitable that any eventual report will be published subject to redactions. The Prime Minister told the House of Commons that he wanted a ‘single, authoritative examination’ of the issues. ¹⁷⁰ Whether the Gibson inquiry manages to provide this, we shall have to wait to see.

Conclusions

As we have seen throughout this article, it remains a monumental, ongoing struggle to insist even on the ‘core irreducible minimum’ of procedural fairness in our national security law. Where courts (or, for that matter, individual dissenting judges) do insist on this, great credit is due to them. But even now, such advances as have been made in recent years remain precarious. There is as yet no consistent pattern of resolute judicial commitment to due process in our national security case law. Even in cases involving the most grotesque and despicable acts of torture, case law continues in ambivalent vein, as Binyam Mohamed exemplifies.

The advances that have been made with regard to special advocates and closed material were exceptionally hard fought. Recall that the House of Lords fudged it the first time around ¹⁷¹ and that the Court of Appeal got it badly wrong (in the face of a powerful dissent from Sedley LJ) before Strasbourg's intervention rather forced their Lordships’ hand in AF . ¹⁷² Even now, as we have seen, grave concerns remain as to the fairness of processes involving the use of closed material. Those concerns will not be allayed unless and until the issues expertly analysed by the JCHR and others have been addressed and dealt with.

To that end, I wish to close this article with a proposal as to reform. I propose a simple rule: namely, that it can never be in accordance with the due process of law for material evidence to remain closed in any form of legal proceedings—even where a special advocate is appointed—unless both the Government and the court have been required to balance the interest in disclosure against the interest in non-disclosure . This should be the function of the special advocate in closed material proceedings, as it already is in cases where a special advocate is appointed to assist the court with a PII certificate (as in Binyam Mohamed , for example). It is not enough that the other party to legal proceedings is told the gist of the closed material. This is necessary, but it is not sufficient. In addition, the court must ensure, as it does in cases concerning PII, that closed material remains closed only if and insofar as the public interest in non-disclosure outweighs the public interest in disclosure. Even this rule will not guarantee fairness in all cases: governments will sometimes perform the necessary balancing exercise negligently, or in a way that is wilfully designed to undermine it (see Al Sweady ), or on the basis of unreliable intelligence ( Binyam Mohamed ).

And, in applying this rule, courts must be alert to guard against the possibility that they may be dazzled by overblown Government claims as to sensitivity, risk, and security. For the record shows that such claims may often be exaggerated and are sometimes wholly spurious. I recall an episode from the Scott Inquiry into arms-to-Iraq. A minister had signed a PII certificate in which he had claimed that were certain material to be disclosed, it would cause ‘unquantifiable damage’ to national security. When the material subsequently came into the public domain, and when no discernible harm to national security appeared to result, Sir Richard Scott (as he then was) asked the minister to justify his claim. The minister replied, apparently straight faced, that unquantifiable could mean ‘unquantifiably large’ or ‘unquantifiably small’. ¹⁷³

This may afford a wry smile now, but is it not an earlier instance of precisely the sort of trap that the Court of Appeal fell into in Binyam Mohamed ? Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs formally and in his own hand certified to the court that, because it would breach the control principle, the United States ‘will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided’. The Court of Appeal, or at least a majority of it, bought this ‘argument’ (if we can dignify it with that term) even though, on analysis, we have seen that the claim was doubly false. Not only was there no evidence of a serious risk that the United States would reconsider its intelligence sharing relationship with the United Kingdom, but also the entire basis of the Foreign Secretary's position was erroneous. His position was founded on the control principle. But that principle was not even engaged—never mind breached—by the publication of the seven redacted paragraphs from the Divisional Court's judgment. Insofar as the control principle even exists as a legal principle (itself a matter of doubt), it surely relates only to secret intelligence, and there was nothing in those seven paragraphs that contained matters of secret intelligence.

All of which is a reminder that, as so often in legal analysis, getting the starting point right is key. And the starting point here should be as follows—this should be the first maxim of our national security law. If national security comes to court, as come to court it will, it is not the court, its values, its decision-making, and its processes that must give way in the face of Government claims about what is required in the name of security. It is these claims that must give way if, on examining the evidence, they do not satisfy the court. Decision-making in national security and law-making in national security should be evidence based and evidence driven. If we stick to that as our starting point, we can surely strive for a national security law that is fair and just, and that gives legal process its due.

¹ G Marshall, ‘Due Process in England’ (1977) XVIII Nomos 69.

²Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

³ Sedley LJ has expressly relied on the notion of ‘due process’ in a number of his judgments in recent cases concerning aspects of national security: see, eg Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, [26] and A and Others v HM Treasury [2008] EWCA Civ 1187, [144].

⁴Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] AC 440.

⁵Secretary of State for the Home Department v AF [2009] UKHL 28, [2010] 2 AC 269.

⁶A and Others v United Kingdom (2009) 49 EHRR 29.

⁷ The starting point is the excellent Justice Report, Secret Evidence (London, 2009), but see also J Ip, ‘The Rise and Spread of the Special Advocate’ [2008] PL 717 and A Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73 MLR 836.

⁸ Special Immigration Appeals Commission Act 1997. See also the SIAC (Procedure) Rules, SI 2003 No 1034.

⁹Chahal v United Kingdom (1996) 23 EHRR 413.

¹⁰ See CPR pt 76.

¹¹ See CPR pt 79 and see further Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 WLR 378 and the Terrorist Asset-Freezing etc Act 2010.

¹² JCHR, 16th Report of 2009–10, HL 86, HC 111, para 58.

¹³ See M Chamberlain, ‘Special Advocates and Procedural Fairness in Closed Proceedings’ (2009) 28 CJQ 314 and ‘Update on Procedural Fairness in Closed Proceedings’ (2009) 28 CJQ 448.

¹⁴ JCHR, 9th Report of 2009–10, HL 64, HC 395.

¹⁵ Ibid, para 58.

¹⁶ Ibid, para 62.

¹⁷ Ibid, para 90. This conclusion represented a hardening of the JCHR’s view on this matter. In previous reports, it had kept an open mind as to the possibility that, despite its imperfections, the system of special advocates and closed material might be operable such that it would ensure fairness.

¹⁸A v UK , [220].

¹⁹AF , [59].

²⁰Bank Mellat v HM Treasury [2010] EWCA Civ 483, [2010] 3 WLR 1090, [18] (Lord Neuberger MR).

²¹Secretary of State for the Home Department v BC and BB [2009] EWHC 2927 (Admin) (Collins J).

²²Secretary of State for the Home Department v AF and AE [2010] EWHC 42 (Admin) (Silber J).

²³Home Office v Tariq [2010] EWCA Civ 462, [2010] ICR 1034 (an appeal to the Supreme Court is pending).

²⁴R (U) v SIAC [2009] EWHC 3052 (Admin) (Laws LJ); cf R (U) v SIAC [2010] EWHC 813 (Admin).

²⁵Bank Mellat (n 20).

²⁶Maaouia v France [2000] 33 EHRR 1037.

²⁷ See RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2009] 2 WLR 512 and W (Algeria) and others v Secretary of State for the Home Department [2010] EWCA Civ 898.

²⁸ Each of the cases was decided by Lord Neuberger MR and Maurice Kay and Sullivan LJJ. In each case the Court of Appeal was unanimous and in each case there is a single judgment.

²⁹ [2010] EWCA Civ 482, [2010] 3 WLR 1069; this case is considered in detail below (and, it should be noted, an appeal to the Supreme Court is pending).

³⁰ See n 23, above.

³¹ See n 20, above.

³² Ibid [21].

³³Al Rawi [57]; cf Tariq [32].

³⁴Tariq [32].

³⁵Al Rawi [57].

³⁶ Joined Cases C-402 & C-415/05 P Kadi and Al Barakaat v Council [2008] ECR I-6351.

³⁷ See Commission Regulation 1190/2008.

³⁸ Case T-85/09 Kadi v Commission [2010] ECR II-0000 (judgment 30 September 2010), [157]. This case has been appealed to the Court of Justice.

³⁹ Ibid [158].

⁴⁰ Ibid [171].

⁴¹ Ibid [173].

⁴² Ibid.

⁴³ Ibid [174].

⁴⁴ Ibid [176]–[177].

⁴⁵ Case C-550/09 E and F [2010] ECR I-0000 (judgment 29 June 2010).

⁴⁶ Ibid [57].

⁴⁷ See HC Deb, 6 July 2010, col 177 (Prime Minister) and HL Deb, 6 October 2010, col 203 (Advocate General for Scotland).

⁴⁸ See Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133.

⁴⁹ Thomas LJ and Lloyd Jones J.

⁵⁰R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2008] EWHC 2048 (Admin), [2009] 1 WLR 2579 (hereafter referred to as ‘ BM (No 1) ’).

⁵¹ Ibid [64].

⁵² Throughout the case the relevant Secretary of State (the Foreign Secretary) was the Rt Hon David Miliband MP.

⁵³ Ibid [67].

⁵⁴ Ibid [68].

⁵⁵ Ibid [87].

⁵⁶ Ibid.

⁵⁷ Ibid [17].

⁵⁸ Ibid [29].

⁵⁹ Ibid [30].

⁶⁰ Ibid [35A].

⁶¹ Ibid [88].

⁶² Ibid [106].

⁶³ Ibid [135].

⁶⁴ Ibid [138].

⁶⁵ Ibid [142]–[143].

⁶⁶ See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2008] EWHC 2519 (Admin), [5] (hereafter, ‘ BM (No 3) ’).

⁶⁷R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs , first PII certificate of the Secretary of State (26 August 2008), para 12 (hereafter, ‘first PII certificate’).

⁶⁸ Ibid.

⁶⁹ Ibid para 10.

⁷⁰ See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2009] EWHC 152 (Admin); [2009] 1 WLR 2653, [14] (hereafter, ‘ BM (No 4) ’). See further below.

⁷¹ Ibid.

⁷² See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] EWHC 2100 (Admin), [20] (hereafter, ‘ BM (No 2) ’).

⁷³R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs , second PII certificate of the Secretary of State (5 September 2008).

⁷⁴ First PII certificate, para 13; second PII certificate, para 11.

⁷⁵BM (No 3) , [19] and [28].

⁷⁶ Ibid [55].

⁷⁷BM (No 4) , [18].

⁷⁸R v Chief Constable of the West Midlands Police, ex parte Wiley [1995] AC 274; see also R v H [2004] UKHL 3, [2004] 2 AC 134.

⁷⁹BM (No 4) , [36].

⁸⁰ Ibid [42]–[43].

⁸¹ Ibid [43], citing A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221, at [83].

⁸² Ibid [54].

⁸³ Ibid [62].

⁸⁴ See Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153 and R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756.

⁸⁵BM (No 4) , [64].

⁸⁶ Ibid [79].

⁸⁷ Ibid [68].

⁸⁸ Ibid [69].

⁸⁹ Ibid.

⁹⁰R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 5) [2009] EWHC 2549 (Admin), [2009] 1 WLR 2653, [15(ii)] (hereafter, ‘ BM (No 5) ’). The Secretary of State objected to the description of the US Government’s position as a ‘threat’, but the court replied that ‘in the language of everyday life’ this is ‘undoubtedly’ what it was (ibid).

⁹¹R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs , third PII certificate of the Secretary of State (15 May 2009), para 17.

⁹²BM (No 5 ), [67].

⁹³ Ibid [95] (emphasis added).

⁹⁴ Ibid.

⁹⁵ Ibid [108].

⁹⁶ In doing so the court directly contradicted the judgment of the Secretary of State who, in his third PII certificate, certified that it was his ‘continued view that real harm to the national security … of the United Kingdom would be caused were there to be public disclosure of the seven paragraph in issue …’ (para 22).

⁹⁷BM (No 5) at [73] and [93(ii)]. To this end, the court re-iterated the views it had expressed in its fourth judgment: see text at nn 87–89, above.

⁹⁸R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 6) [2009] EWHC 2973 (Admin).

⁹⁹ The Government changed its position during the course of the hearing in the Court of Appeal and dropped its objection to the publication of three of the four passages from the Divisional Court’s fifth judgment. Thus, the judgment of the Court of Appeal is concerned only with the seven paragraphs of the Divisional Court’s first judgment and with one single paragraph from its fifth judgment.

¹⁰⁰R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2010] 3 WLR 554 (hereafter ‘ BM (CA)’).

¹⁰¹Guardian (11 February 2010).

¹⁰²R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158, [2010] 3 WLR 554.

¹⁰³ Ibid [28].

¹⁰⁴ See n 101, above.

¹⁰⁵Guardian (12 February 2010).

¹⁰⁶Daily Telegraph (11 February 2010).

¹⁰⁷ JCHR, ‘Allegations of UK Complicity in Torture’, 23rd Report of 2008–09, HL 152, HC 230, para 35.

¹⁰⁸ Ibid, para. 37.

¹⁰⁹ See Human Rights Watch, Cruel Britannia: British Complicity in the Torture and Ill-Treatment of Terror Suspects in Pakistan (2009) < http://www.hrw.org >.

¹¹⁰ JCHR (n 107), para 51.

¹¹¹ Ibid, para 56.

¹¹² Ibid, para 65.

¹¹³ Ibid, para 58.

¹¹⁴ Ibid, para 81.

¹¹⁵BM (CA), [187] (Lord Neuberger MR).

¹¹⁶Secretary of State for the Home Department v Rehman (n 84).

¹¹⁷BM (CA), [131].

¹¹⁸ [1968] AC 910.

¹¹⁹BM (CA), [131].

¹²⁰ Ibid [137].

¹²¹ Ibid [155].

¹²² Ibid [172].

¹²³ Ibid [171].

¹²⁴ Ibid [172].

¹²⁵BM (No 5) : see above, n 90.

¹²⁶ For a detailed analysis, see A Tomkins, ‘National Security and the Role of the Court: A Changed Landscape?’ (2010) 126 LQR 543.

¹²⁷BM (CA), [233].

¹²⁸ Ibid [288]–[290].

¹²⁹ Ibid [57].

¹³⁰ Ibid [52].

¹³¹ Ibid [57].

¹³² HC Deb, 10 February 2010, cols 913–14.

¹³³ Cm 7844, para 57 (emphasis added).

¹³⁴ There is reason to be sceptical here. The most recent expert literature on intelligence sharing does not mention it: see, for example, D Reveron, ‘Old Allies, New Friends: Intelligence-Sharing in the War on Terror (2006) 50 Orbis 453; J Sims, ‘Foreign Intelligence Liaison: Devils, Deals and Details’ (2006) 19 Intl J Intell and Counter-intell 195; A Svendsen, ‘The Globalization of Intelligence since 9/11: Frameworks and Operational Parameters’ (2008) 21 Camb Rev Intl Aff 130; and R Aldrich, ‘Global Intelligence Co-operation versus Accountability: New Facets to an Old Problem’ (2009) 24 Intell and Natl Secy 26. Further, an essay by Sir Stephen Lander, the former Director-General of MI5, seems to undermine the idea that there could be a ‘control principle’, at least as regards intelligence sharing between GCHQ and the USA’s National Security Agency, when he writes that the ‘institutional integration’ of these agencies, which has flowed from their co-operation since the end of the Second World War, is now ‘so widespread’ that intelligence customers in London and in Washington DC ‘seldom know which country generated either the access or the product itself’ (see S Lander, ‘International Intelligence Co-operation: An Inside Perspective’ (2004) 17 Camb Rev Intl Aff 481, at 487). The original ‘UKUSA Agreement’, dating from 1946, which governs intelligence sharing between the United States and the United Kingdom, was released by the National Archives in June 2010. The text makes no reference to the control principle or to anything resembling it: see < www.nationalarchives.gov.uk/ukusa > accessed 20 January 2011.

¹³⁵ [2009] EWHC 1687 (Admin) and [2009] EWHC 2387 (Admin). The court was composed of Scott Baker LJ and Silber and Sweeney JJ.

¹³⁶ See < http://www.bahamousainquiry.org/index.htm >.

¹³⁷ See [2009] EWHC 1687 (Admin), [46].

¹³⁸ See [2009] EWHC 2387 (Admin), [22]ff.

¹³⁹ A public inquiry was established in late 2009: see < http://www.alsweadyinquiry.org/ >.

¹⁴⁰ In this respect Al Sweady may be contrasted with R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin), which concerned allegations that persons in British military detention in Afghanistan had been illegally handed to the Afghan authorities in the knowledge that they would face a real risk of torture. The claimants’ lawyers made repeated complaints about delays in the MOD’s disclosure, but the court found that ‘by the time of the final hearing the Secretary of State had adopted a commendably conscientious approach towards the discharge of his disclosure obligations and his duty of candour’ ([5]).

¹⁴¹ [2009] EWHC 2387 (Admin), [67].

¹⁴² [2010] EWHC 1823 (Admin).

¹⁴³ In December 2010, the court ruled against the claimants on their substantive argument. The court held that, in the light of other pre-existing inquiries and investigations, the Secretary of State was not acting unlawfully in deciding, for the time being, not to establish a fresh public inquiry into the claimants’ allegations: see R (Ali Zaki Mousa) v Secretary of State for Defence [2010] EWHC 3304 (Admin). The court left open the possibility that such an inquiry may prove necessary in due course.

¹⁴⁴ Ibid [3].

¹⁴⁵A v Secretary of State for the Home Department (No 2) (n 81) [82].

¹⁴⁶Wiley (n 78) at 280.

¹⁴⁷Al Rawi and Others v Security Service and Others [2009] EWHC 2959 (QB) (hereafter ‘ Al Rawi (QB)’).

¹⁴⁸Al Rawi and Others v Security Service and Others [2010] EWCA Civ 482 (hereafter ‘ Al Rawi (CA)’). The case has been further appealed to the Supreme Court, whose judgment is awaited at the time this article was going to press.

¹⁴⁹ See n 84, above. The Special Immigration Appeals Commission Act 1997 provided for the use of closed material and special advocates in SIAC, but not on appeal. In the Court of Appeal in Rehman , Lord Woolf MR stated that, if necessary, the court should use its inherent power to allow for closed material and a special advocate on appeal.

¹⁵⁰ [2005] UKHL 45, [2005] 2 AC 738, in which a divided House of Lords ruled 3:2 that the Parole Board had an inherent power to examine closed evidence.

¹⁵¹ [2008] EWHC 1362 (Admin), [2008] 4 All ER 403, in which Dyson LJ (as he then was) stated (at [99]) that ‘there is a power in the court to request the appointment of a special advocate of its own motion. But that power should be exercised only in exceptional cases and as a last resort’.

¹⁵²Al Rawi (QB), [55].

¹⁵³Al Rawi (CA), [11].

¹⁵⁴ Ibid [12].

¹⁵⁵ Ibid [14].

¹⁵⁶ Ibid (emphasis added).

¹⁵⁷ Ibid [16]–[17].

¹⁵⁸ [1913] AC 417.

¹⁵⁹ [1979] AC 440.

¹⁶⁰Al Rawi (CA), [17].

¹⁶¹ Ibid [27]. Four examples were cited: pt 76 CPR made under the Prevention of Terrorism Act 2005 (concerning control orders); pt 79 CPR made under the Counter-terrorism Act 2008 (concerning financial restrictions proceedings); r 6 of the Parole Board Rules 2004 (as discussed in Roberts v Parole Board , above); and r 54(2) of the Employment Tribunals Regulations (as discussed in a judgment of the Court of Appeal handed down on the same day as its judgment in Al Rawi : Tariq v Home Office [2010] EWCA Civ 462).

¹⁶² Ibid [30].

¹⁶³Al Rawi and Others v Security Service and Others [2010] EWHC 1496 (QB), [19].

¹⁶⁴ HC Deb, 6 July 2010, col 175.

¹⁶⁵ Sir Peter Gibson will chair a three-member inquiry team, the other members being Dame Janet Paraskeva (head of the Civil Service Commissioners) and Peter Riddell (former political journalist at the Times , and senior fellow at the Institute for Government).

¹⁶⁶ See HC Deb, 16 November 2010, col 752.

¹⁶⁷ Quoting the letter from the Prime Minister to Sir Peter Gibson explaining the purpose of the inquiry, 6 July 2010 (available from the Prime Minister’s web site).

¹⁶⁸ This is not entirely clear: both the Baha Mousa and Al Sweady inquiries concern Iraq, but the Prime Minister’s letter refers to allegations as regards both Iraq and Afghanistan. On Afghanistan, see, eg R (Evans) (n 140).

¹⁶⁹ Prime Minister’s letter to Sir Peter Gibson (n 167).

¹⁷⁰ HC Deb, 6 July 2010, col 176.

¹⁷¹MB (n 4).

¹⁷² For the Court of Appeal, see Secretary of State for the Home Department v AF [2008] EWCA Civ 1148; for the House of Lords see n 5, above; for the ECtHR see n 6, above.

¹⁷³ See A Tomkins, The Constitution after Scott: Government Unwrapped (Clarendon Press, Oxford 1998) 181 (the minister was Tristan Garel-Jones).