(back to preceding text)

223.  Developing these arguments, Mr Singh said that the incorporation of Convention rights such as article 3 into domestic law engaged the civil limb of article 6(1). For example, in Tomasi v France (1993) 15 EHRR 1 the Strasbourg court held that a domestic right to seek compensation for a violation of article 3 meant that article 6 was engaged by the proceedings. The fact that his clients were detained meant that their right to liberty was also infringed, and in Aerts v Belgium (1998) 29 EHRR 50, para 59 the court said that the right to liberty was a civil right. So too was their right to reputation for the purposes of article 6(1): Werner v Poland (2001) 36 EHRR 491, para 33. Article 5(4), he said, entitled his clients to a review of the legality of their detention, as to which the requirements of fairness were very similar to those required by article 6(1). In R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738, para 83(vii) Lord Woolf CJ said that in cases where special advocates were used the task of the court was to decide, looking at the process as a whole, whether a procedure had been adopted which involved significant injustice. Lord Bingham relied on this observation in an article 5(4) case in Secretary of State for the Home Department v MB [2008] 1 AC 440, para 34 when he said, with reference to the use of closed material to justify control orders and its compatibility with article 6(1), that the concept of fairness imported a core, irreducible minimum of procedural protection. Baroness Hale said in para 61 of her opinion in MB that it was not possible to draw a clear distinction between the requirements of article 5(4) and those of article 6(1). In any event a failure to apply the standards of fairness identified in MB in the context of these appeals was clearly differential treatment based on nationality.

224.  Mr Fitzgerald QC for Abu Qatada, whose objection was directed only to the use of closed material on the issue of safety on return, also invoked what he described as the irreducible minimum of fairness. He said that it was wrong in principle for this issue to be made the subject of an adverse finding against his client on evidence that he had not heard. The European court had affirmed repeatedly the importance of the principle that as a general rule all the evidence must be produced in the presence of an accused, giving him an adequate and proper opportunity to challenge and question witnesses against him: R (Roberts) v Parole Board [2005] 2 AC 738, per Lord Bingham at para 17. In Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 123-124, it was recognised that even where national security was at stake there had to be some procedure for allowing the person whose fundamental human rights were at issue to have access to the relevant evidence. If that was so, the issue of safety on return ought to be subject to the same protection.

225.  For Liberty, intervening, Mr MacDonald QC submitted that an alternative approach could and should be adopted by SIAC to the disclosure of as much closed evidence as possible in any case where it was suggested that it was contrary to the public interest for an alien to be allowed to remain in this country. This was to consider whether there could be some other form of limited disclosure of this evidence to the appellant, whether by way of some form of in camera disclosure or by way of its disclosure to the appellant’s representatives only. This could be done, it was submitted, by reading down rule 4(1) of the SIAC Procedure Rules under section 3 of the Human Rights Act 1998 so as to permit this procedure. Unless the rule was read in this way it was incompatible with the aliens’ Convention rights. This submission was the subject of an interlocutory judgment by SIAC in the cases of RB and U dated 14 November 2006, when it was rejected. The Court of Appeal also rejected the submission when it was renewed before it: RB (Algeria) v Secretary of State for the Home Department [2008] QB 533, paras 19-22. It held that the disclosure of material central to the issues in the case to an open advocate would put counsel in an impossible position and would seriously undermine the careful division between counsel appearing in the open proceedings and the special advocates. Your Lordships were invited nevertheless to examine the point again, although the submission was confined to circumstances where the feared damage to the public interest related to international relations issues rather than to national security.

226.  I am in general agreement, subject to the following comments, with Lord Phillips’s analysis of these arguments in paras 74 to 105 of his opinion and with the way Lord Hoffmann deals with them in paras 160 to 181 of his opinion. I would rest my own opinion on three points in particular: first, the jurisprudence of the Strasbourg court; second, the framework for the determination of issues relating to national security that has been laid down by Parliament; and third, the attitude that SIAC itself takes to the use of closed material.

227.  The Strasbourg court has emphasised repeatedly that inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirement of the protection of the individual’s fundamental rights: see, for example, Soering v United Kingdom (1989) 11 EHRR 439, para 89. This principle finds practical expression in the court’s approach to issues about the applicability of article 6(1) to procedures for the expulsion of aliens. As the Grand Chamber pointed out in Maaouia v France (2000) 33 EHRR 1037, para 35, the Court has not been called on, but the Commission has consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of article 6(1). It endorsed this view in para 37 of its judgment, drawing upon the fact that by adopting article 1 of Protocol 7 containing guarantees concerning proceedings for the expulsion of aliens, the Contracting States clearly intimated their intention not to include such proceedings within the scope of article 6(1). In para 38 it also said that the fact that the exclusion order in that case incidentally had major repercussions on the applicant’s private and family life or on his prospects for employment could not suffice to bring the proceedings within the scope of civil rights protected by that article.

228.  It seems to me that the Grand Chamber’s decision in Maaouia v France provides the answer to Mr Singh’s argument that the requirement of fairness that is to be found in article 6(1) can be reached through one or other of his four gateways. It cannot be invoked by pointing to the incidental effects that an expulsion order may have on the alien’s reputation or of an order for his detention pending expulsion. In Amrollahi v Denmark, (Application No 56811/00) (unreported) 28 June 2001, it was argued that articles 2, 3 and 8 prohibited the applicant’s deportation. Although the complaint under article 8 was declared admissible, the court applied its decision in Maaouia and declared a complaint under article 6 inadmissible. In Tomasi v France (1993) 15 EHRR 1, on which Mr Singh relied, article 6 was applied to proceedings for the recovery of damages for a breach of article 3. But it does not follow that it applies to proceedings of a different nature where the question is whether removal may lead to a risk of ill-treatment contrary to article 3. It is the nature of the proceedings that determines whether article 6(1) applies, as that article itself makes clear.

229.  The explanatory report on article 1 of Protocol 7, which is quoted in para 36 of the decision in Maaouia v France, points out that aliens are entitled to invoke article 13 (the right to an effective remedy before a national authority) to ensure that when faced with expulsion they have the benefit of the guarantee afforded by article 3. What this requires was explained in Chahal v United Kingdom (1996) 23 EHRR 413, para 151. The court said that the notion of an effective remedy requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to article 3, and that it must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State. Such scrutiny need not be provided by a judicial authority: para 152. The jurisdiction that is given to SIAC, which was introduced in response to the court’s judgment in Chahal, has been designed to provide this remedy. The Strasbourg court has not yet had the opportunity to say whether or not it meets with its requirements, but it is hard to see why it should not say that it does. SIAC is an independent judicial body, and its jurisdiction permits it to subject the issue as to whether there is a real risk of treatment contrary to article 3 to the degree of rigorous scrutiny that the court itself said in Chahal, para 96, was necessary.

230.  There remains however the question whether the use of closed material fails to meet the minimum standard of procedural fairness that is to be expected of any such tribunal in a democratic society. Procedure before SIAC is governed by the 1997 Act and by the rules that have been made under section 5. Section 5(3), which describes what the rules may provide, rule 4 as it was at the time of the aliens’ appeals, a description of the rules that provide for the appointment of special advocates and the procedure that is to be adopted where the Secretary of State objects to disclosure are all to be found in paras 13-17 of Lord Phillips’s opinion. These procedures are intended to provide a fair balance between the need to protect the public interest and the need to provide the applicant with a fair hearing. As Mr Tam QC for the Secretary of State pointed out, it is inherent that in any forum in which sensitive evidence might be relevant some adjustment will have to be made to normal procedures.

231.  In ordinary civil or criminal proceedings an objection to disclosure on public interest grounds may lead to the material not being considered at all, even though the party from whom the material is withheld may be disadvantaged. In an interlocutory determination of 12 July 2006 in Y and Othman v Secretary of State for the Home Department, para 50, Ouseley J compared SIAC’s procedures with those adopted by the Asylum and Immigration Tribunal, a large part of whose work is the consideration of issues about safety on return. As he put it:

“The SIAC procedures strike the balance in a different way: full production and restricted disclosure [in SIAC] as opposed to partial production, and unrestricted disclosure of that partial production [in the AIT].”

This is the approach to the problem that has been sanctioned by Parliament. Its effect must be seen in the context of the procedures that SIAC has adopted through the use of the special advocate procedure. Liberty’s suggestion, which I would reject for the reasons that the Court of Appeal gave in [2008] QB 533, para 21 and also because it is inconsistent with the clear terms of rule 4, shows how difficult it is to think of an alternative procedure which will not give rise to greater disadvantages and greater detriment to the applicants.

232.  The attitude that SIAC itself takes to closed material is shown by its ruling on 12 July 2006 that the core evidence in the cases of Y and Othman as to the assurances received from the Algerian and Jordanian governments must be publicly disclosed. As Ouseley J explained in para 58, which Lord Phillips has quoted in para 102 of his opinion, it was SIAC’s view that the Secretary of State could not rely on any substantive assurance unless it was put out into the open. The key documents or conversations relied on to show that an applicant’s return will not breach international obligations had to be in the open evidence, as weight could not be given to assurances that the giver of them was not prepared to make public. In para 59 he said that, because of the role that SIAC is required by statute to perform, it has to be persuaded to uphold the Secretary of State’s objections, reaching its own view on the material before it. In Secretary of State for the Home Department v MB [2008] 1 AC 440, para 67, Baroness Hale accepted that SIAC was in the best position to judge whether the proceedings accorded a substantial and sufficient measure of procedural protection.

233.  The special advocate procedure too provides an opportunity for questions as to the weight to be attached to undisclosed evidence to be tested and for SIAC itself, exercising its substantial experience in these matters, to distinguish between sensitive material the withholding of which will not result in substantial unfairness and core material to which weight cannot be given unless it is made public. This is the kind of approach that the Strasbourg court appears to have had in mind in Chahal v United Kingdom (1996) 23 EHRR 413, para 131, when it referred to the Canadian example on which the setting up of SIAC was based as illustrating that there are techniques that can be employed which both accommodate legitimate security concerns and yet accord the individual a substantial measure of procedural justice.

234.  Your Lordships’ decision not to accept the Secretary of State’s request for permission to adduce closed material as background to these appeals can be seen as part of the same process. The question whether SIAC’s decisions on the issues of safety on return were decisions that no reasonable tribunal, properly directed, could have reached must be addressed by an examination of the material that SIAC, exercising its judgment, has set out in its open judgments. In my opinion this is as good an approach as can be adopted in the circumstances. There is no reason to think that the aliens’ right under article 13 to an effective remedy is not being afforded by this procedure. I do not overlook the fact that Mr Singh’s argument on the issue of procedural fairness extended to the use of closed material on the question whether it was in the interests of national security that his clients should be expelled from the United Kingdom. The basis for SIAC’s determination of this issue has not been disclosed to us. But I would hold that, taking the procedure as a whole, this has not resulted in substantial unfairness.

The article 3 assurances

235.  I turn now to the issue of safety on return. This is an issue that concerns all three aliens. They all submit that there is a substantial risk that they will be subjected to torture or inhuman or degrading treatment when they are returned, contrary to article 3. The Secretary of State sought to meet this objection by pointing to assurances that were obtained in each case at a high level from the governments of the receiving states by Her Majesty’s Government. SIAC was satisfied in all three cases that, in view of the assurances that had been received, there were no substantial grounds for believing that they would face a real risk of being subjected to treatment contrary to article 3 if they were deported. The aliens challenge these decisions. For RB and U it is submitted that the assurances offered by the Algerian authorities were inadequate because they did not expressly engage with the receiving State’s obligations under international law and because there was no provision for monitoring. For Abu Qatada it was submitted that assurances were objectionable in principle, and that in any event those that had been given in his case could not be relied upon in the absence of proper monitoring and powers of access to enable this to be done.

236.  I agree with Lord Phillips, paras 106-126, and Lord Hoffmann, paras 182-194, that the challenge to the decisions that were reached on this matter by SIAC must be rejected. The question whether the assurances provided a sufficient guarantee that the aliens would be protected against the risk of treatment contrary to article 3 is essentially a question of fact. As an appeal lies from its decisions on a question of law only, the issue as I see it is whether no reasonable tribunal, properly instructed as to the relevant law, could have come to the same conclusion on the evidence. The questions that this test gives rise to are: (1) was SIAC right to accept that assurances were not objectionable in principle; (2) did it subject the issue to a sufficient degree of scrutiny; and (3) taken overall, were the decisions that it reached in each case such that no person acting judicially and properly instructed as to the relevant law could have come to.

237.  On the first point, there are grounds for doubting whether it could ever be right to rely on assurances given by the governments of states where treatment contrary to article 3 is generally practised. The fact that it was thought necessary to obtain the assurances is itself a demonstration that, without them, there was a real risk that treatment contrary to article 3 would be resorted to. There was no question of obtaining a general undertaking that the states concerned would abandon such practices. What was sought were assurances specific to each individual. The context in which they were given was one in which it must be assumed that practices that are objectionable because they are in breach of norms that are agreed internationally are still commonplace. Can it ever be said that, in such circumstances, assurances that particular individuals will not be subjected to them may be accepted as reliable? Is realistic to expect that the risk of their being subjected to it can be met by monitoring? What sanctions, if any, can be imposed in the event of it being discovered that the assurances have been breached?

238.  In Sing v Canada (Minister of Citizenship and Immigration) 2007 FC 361, para 136, de Montigny J in the Federal Court of Canada cited with approval a passage from the report of the Special Rapporteur to the United Nations of 1 September 2004, UN Document A/59/324 which states:

“in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.”

It was suggested that this passage showed that assurances were objectionable in principle. But its very language shows, as de Montigny J accepted, that the issue will always be one of fact. As counsel for RB and U accepted, the consistent approach of the Strasbourg court has been to examine any assurances offered in the particular circumstances of the cases before it and to consider whether, in those circumstances, the assurances are sufficient to counter the risk of treatment contrary to article 3.

239.  The underlying principle is that expulsion by a Contracting State may give rise to an issue under article 3 if substantial grounds have been shown for believing that the person in question, if expelled, would face a substantial risk of being subjected to treatment in the receiving State contrary to article 3: Soering v United Kingdom (1989) 11 EHRR 439, paras 90-91; Bader v Sweden (2005) 46 EHRR 1497, para 41. In Chahal v United Kingdom (1996) 23 EHRR 413, assurances that the applicant would not be ill-treated had been received from the Indian Government: para 92. The court did not doubt the good faith of the Indian Government in providing these assurances but, as violation of human rights by certain members of the security forces was a recalcitrant and enduring problem, it was not persuaded that they would provide an adequate guarantee of safety in his case. In Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494, on the other hand, an assurance was obtained from the Uzbek Government in the light of which the court said that it was unable to conclude that substantial grounds existed for believing that the applicants faced a real risk of treatment proscribed by article 3: para 77. The Grand Chamber in Saadi v Italy (Application No 37201/06) (unreported) 28 February 2008, para 129 said that where evidence capable of proving that there are substantial grounds for believing that he would be exposed to ill-treatment is adduced by the applicant, it is for the government to dispel any doubts about it. The existence of domestic laws and accession to treaties guaranteeing respect for fundamental rights were not in themselves sufficient where practices contrary to the principles of the Convention were resorted to or tolerated by the authorities. Assurances from the receiving State do not absolve the court from examining the question whether, in their practical application, they would provide a sufficient guarantee of protection. The weight to be given to them depends, in each case, on the circumstances obtaining at the material time: paras 147-148.

240.  Did SIAC subject the issue to the necessary degree of scrutiny? And were the decisions that it reached in each case such that no person acting judicially and properly instructed as to the relevant law could have come to? I take these questions together, as the exercise that they give rise to is the same. The decisions must be examined with care to see that the necessary degree of scrutiny was resorted to, and whether the findings that were arrived at were such that no reasonable tribunal could have reached them. I need not prolong this opinion by quoting passages from them. All I need say is that, having studied the decisions that were given on SIAC’s behalf in RB’s case by Mitting J on 5 December 2006, in U’s case by Mitting J on 14 May 2007 and in Abu Qatada’s case by Ouseley J in very considerable detail on 26 February 2007, I am entirely satisfied that the necessary degree of scrutiny was exercised.

241.  In RB’s case, para 22, Mitting J said that the assurances by the Algerian Government could safely be accepted. In U’s case, para 37, he said that there were no substantial grounds, in the light of its assurances, for believing that there was a real risk that the assurances would be breached. In Abu Qatada’s case, para 516 Ouseley J said that, if without the Memorandum of Understanding between the United Kingdom Government and the Government of Jordan dated 20 August 2005 there were real risks of treatment which breached article 3, the Memorandum would reduce the risk sufficiently for his removal not to breach the United Kingdom’s obligations under the Convention. I am unable to detect any grounds for thinking that these conclusions were not open to SIAC on the evidence that was before it. Of course the issues that had to be resolved were far from easy. The terms in which the assurances were given, the opportunities for monitoring and the extent to which the risks would be reduced all required careful evaluation. But these were matters for SIAC to resolve, as it did, on a careful consideration of all the evidence.

242.  It may be worth observing, by way of a footnote, that a similar problem arose in R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839. The question in that case was whether it would be unjust or oppressive for the applicant to be returned to face trial in Hong Kong after the transfer of sovereignty to the People’s Republic of China. This depended on whether the People’s Republic could be relied upon to adhere to its undertakings to observe the Basic Law in Hong Kong after the transfer. The Secretary of State said that he had considered this matter very carefully and that in his view the People’s Republic, despite its actions elsewhere and in other circumstances, could be relied upon to respect the Basic Law in the applicant’s case: p 859D. The House held that it would not be justified in holding that he had failed to address himself to the right question in reaching the conclusion that he should grant a warrant in that case. Events have shown the soundness of his assessment. In this field there can be no absolute guarantees that assurances, even at the highest level, will be adhered to. But the Strasbourg jurisprudence does not require them to achieve that standard. The words “substantial” and “real risk” show that the court’s approach is essentially a practical one that strikes a balance between the interests of the community and the protection of the individual. The aliens’ right under article 13 to an effective remedy is satisfied by entrusting this exercise, which requires independent scrutiny of the facts, to SIAC.

Abu Qatada: article 6

243.  The Secretary of State accepts that it is likely that, if he were returned to Jordan, Abu Qatada will be put on trial for the crimes of which he has been convicted in his absence. This gives rise to a further objection to removal which is specific to his case. Are there substantial grounds for thinking that in that event his right to a fair trial under article 6(1) will be violated? Two reasons are advanced for thinking that there is a real risk that this will be so. One is that his trial would take place before a military court. The other is that evidence that is led against him may have been obtained by torture. SIAC held against him on both points. In para 451 of its decision of 26 February 2007 Ouseley J said that, taking all the various factors that were likely to cause the retrial to breach article 6 in the round, it was not persuaded that there was a real risk of a total denial of the right to a fair trial. The Court of Appeal reversed its decision, on the ground that it had erred in law in treating the possible use of evidence obtained by torture pari passu with complaints about the court’s independence: Othman v Secretary of State for the Home Department [2008] 3 WLR 798, para 49.