Open justice is one of the most crucial features of a free state. In weighing up individual cases, courts have sometimes decided that open justice shoud give way to other, equally necessary, ideals. For instance, national security won the day in the Court of Appeal decision in the Erol Incedal case. This was inevitably criticised by the press. In Immigration Law Practitioners Association, R (On the Application Of) v Tribunal Procedure Committee & Anor [2016] EWHC 218 (Admin), Mr Justice Blake in the High Court deals whether in appropriate circumstances information can be withheld from an appellant, or both an appellant and their representative, in immigration tribunals. Rule 13 of the 2014 Immigration Tribunal Procedure Rules purports to do just that; the Immigration Law Practitioner’s Association (ILPA) brought a challenge to its legality.

The Incedal case was not the first time national security trumped open justice. In the famous WWII case of Liversidge v Anderson, the Secretary of State successfully argued in the House of Lords that he did not need to produce evidence to show that he had reasonable cause to believe that a suspect had hostile associations in order to place them in detention; he simply needed to declare that his belief was reasonable. This case represents the extreme end, but the same trend can be seen in cases relevant to the war on terror.

The present case is broader than the two above, as the rule in question is only partially relevant to national security. However, if the rule is not carefully handled by tribunal judges, it has the potential to override open justice. The relevant Procedure Rules were proposed by the Tribunal Committee and approved by the Lord Chancellor – both executive bodies without legislative power. This allows the rule to be challenged in court by means of judicial review. Rule 13(2) states as follows:

(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—

(a)          the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and

(b)          the Tribunal is satisfied, having regards to the interest of justice, that it is proportionate to give such a direction.

The effects of the rule are partially ameliorated by subsections (5) and (6), which state that such documents may be disclosed to a representative so long as doing so will not cause serious harm:

(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—

(a) disclosure to the representative would be in the interests of the party; and

(b) the representative will act in accordance with paragraph (6).

(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal’s consent.

Subsection 9 brings national security into the equation:

(9) In a case involving matters relating to national security, the Tribunal must ensure that information is not disclosed contrary to the interests of national security.

ILPA challenged the rule’s legality. Both their arguments lay rooted in fairness: first, that it is beyond the rule-maker’s power as an executive body to intervene in the common law principle of fairness; second, the rule itself is so unfair that no rational decision-making body would promulgate them.

The rule in question looks innocent enough, but when you consider the potential unfairness that it would create in an actual hearing, it becomes more pernicious. Consider the case where an appellant is unrepresented: then Rule 5 will not come into play, so that the appellant will be unable to know part of the case against him. This would be likely to create unfairness in the hearing. This will be even more so the case when the appeal is out of country; an absent and unrepresented appellant will be even more disadvantaged.

Mr Justice Blake first considers the requirements that would go through the judge’s mind: whether having the evidence disclosed would be likely to cause serious harm, and whether this would be consistent with the interests of justice and proportionate. These are analysed as potential blocks to secret hearings being regularly used.

He first defines the terms:

‘Serious harm’ […] must be limited to significant physical and mental suffering; harm to commercial or privacy interests, distress or anxiety is not enough. This would need to be established by credible information rather than mere assertion. ‘Likely’ involves establishing something higher than a mere risk or possibility of harm although is less than the application of the ordinary civil standard.

He then comments that “it will be an unusual case where the evidence meets this standard.” This is the first part of the limitation to the rule.

The second limitation is whether not divulging the evidence is in the interests of justice and proportionate. In asylum cases both common law and ECHR jurisprudence require “exacting standards of procedural fairness”. Cases where EU law is involved engage the Charter of Fundamental Rights fair trial rights. Furthermore, cases regarding Articles 8 (respect for private and family life) and 5 (freedom from arbitrary or prolonged detention) have minimum standards of fairness built in.

Mr Justice Blake next observes the exceptions to open justice:

“There are recognised exceptions to the common law principle (1) where non-disclosure was necessary to protect the welfare of children; (2) where the litigation concerned intellectual property proceedings to protect commercial interest and disclosure would undermine the very object of the proceedings. […] Otherwise clear statutory authority was needed to override the principle.”

The crux of the case lies in the acceptance of the following point: “unfairness has to be inherent in the disputed rule rather than give rise to a mere possibility that unfairness will result from its use”. So if use of the rule may be in the right case compatible with a fair hearing, then it should not be judged ultra vires.

In FP (Iran) a procedure rule which mandated the Tribunal to carry on a hearing in the absence of an appellant was struck down for procedural unfairness. However, the rule in the present case only may result in the absence of the appellant for parts of the hearing. Consequently, alongside the proportionality requirement, an appropriate case should be capable of proceeding fairly.

Furthermore, in Browning v Information Commissioner, the Court of Appeal resisted quashing a parallel rule for private hearings in the First Tier and Upper Tribunal, General Regulatory Chamber. Mr Justice Blake considered this binding authority on him notwithstanding the differences between asylum and regulatory hearings.

Mr Justice Blake next significantly restricts the use which he expects to be made of the rule:

The nearest evidence there is in the consideration before the TPC of when some use might be made of rule 13 were three examples mentioned by Judge Deans, a highly experienced resident judge of the FtT and a member of the TPC Immigration and Asylum Sub-Committee. He considered that the rule might be used:

1. Where someone may be at risk of harm because of their sexual orientation;
2. Where the mental health of the appellant may be adversely affected by disclosure of information

• Where there has been some denunciation of the appellant by a relative who is in fear of reprisals.

I cannot see how either i) or ii) could lead to a CMP as opposed to proportionate measures for anonymity, exclusion of the public from a hearing, and redaction of documents. [With regard to iii)] Relevant protection can be afforded to any witnesses to be called in an appeal. The judgments of FtT IAC judges are not made available publicly (contrast those of the UT IAC) and the FtT can give directions that any determination be not made public by any party to the appeal.

This move allows him to conclude that as the rule will not be used to make a substantive decision in the absence of the appellant as it would be unlikely to be proportionate in light of other resources, such as anonymity measures, available to the Tribunal.

To conclude: Rule 13 is lawful and was enacted lawfully. Therefore, Tribunal judges in an appropriate case may use Rule 13 to keep information which might harm the appellant or others from being disclosed to the appellant, and possibly their representative. However, any such use will be extremely rare, as with the availability of other measures which would not intrude on the fairness of the trial, it will be unlikely to be proportionate.

For more information on the case, please see this very well written piece by Ben Amunwa.