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Public Interest, Fairness, and National Security

Public Interest, Fairness, and National Security. Gordon Anthony. What is this talk about?. Two things:. The tension between the idea of “procedural fairness” and the “public interest” in national security Four cases of note. First, a word about “fairness”.

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Public Interest, Fairness, and National Security

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  1. Public Interest, Fairness, and National Security Gordon Anthony

  2. What is this talk about? Two things: • The tension between the idea of “procedural fairness” and the “public interest” in national security • Four cases of note

  3. First, a word about “fairness” • It is synonymous with the common law’s right to a hearing and the parallel right under Article 6 ECHR • The right to a fair hearing is absolute, but the different elements of it are not • The State need not therefore always disclose information in the course of proceedings – and non-disclosure does not mean that a trial/hearing will thereby be unfair • Public Interest Immunity; and “closed material” and “Special Advocates” in cases involving national security (suspected terrorism; etc) • But where Special Advocates are engaged, can the individual make meaningful representations?

  4. The demands of Article 6 ECHR - Home Secretary v AF(No 3) [2010] 2 AC 269 Prevention of Terrorism Act 2005 Control orders Closed material and special advocates The requirement of “gisting” Its implications? An on-going problem? – see AT v Home Secretary [2012] EWCA Civ 42

  5. But how far does that principle run? – Tariq v Home Office [2011] 3 WLR 322 Discrimination claim (race and religion) Legislation provided for use of “closed material” and “Special Advocates” The AF principle didn’t apply – liberty is in a very different bracket Kennedy v UK (2010) 52 EHRR 207 Lord Kerr’s dissent

  6. A common law safety net? – Al Rawi v Security Services [2011] 3 WLR 388 Claims in respect of detention in foreign locations Security Services asking court to use its inherent jurisdiction to order a parallel “closed procedure” Argument rejected – PII would suffice Open justice is a fundamental principle of the common law Only Parliament could effect the change

  7. Comments on the inconsistency? • The inconsistency is wholly consistent with the broader dynamics of the ECHR • The issues in Al Rawi were moot • But just how robust is the common law? If Parliament can introduce legislation, will that only ever lower the threshold at which rights enjoy protection? • Would the common law tolerate legislation that sought to do away with the very essence of the common law right to a hearing? (Jackson and all that …)

  8. A twist in the tale? – W (Algeria) v Home Secretary [2012] UKSC 8 Appellant before Special Immigration Appeals Commission Wished to adduce evidence from a witness who wanted anonymity – the fear of was State sponsored reprisals Supreme Court held that it was possible for SIAC to receive evidence under such circumstances Important that SIAC would perform its function to the full, even if this required a modification of procedure

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