XH v Secretary of State for the Home Department

Under section 6 of the Justice and Security Act 2013, a closed material declaration may be made where sensitive material would otherwise have to be disclosed and a closed procedure is necessary for the fair and effective administration of justice. The court need not first conduct the detailed disclosure exercise arising on a public interest immunity application. It must assess the nature and importance of the material, the open material, and whether PII, including gisting, is likely to provide a satisfactory alternative. The statutory conditions should receive their natural meaning, although the procedure remains exceptional.

The Secretary of State applied under section 6 of the Justice and Security Act 2013 for a declaration permitting closed material applications in the claimant’s judicial review challenge to the cancellation of his British passport on national-security grounds. The claimant relied on EU law, the ECHR and the common law. The Secretary of State relied on sensitive material which she said could not be disclosed openly. The issue was whether the statutory pre-condition and two statutory conditions were satisfied, and whether the declaration should be made before permission and the substantive claim were determined.

1. Declaration made. The section 6(7) pre-condition was satisfied because the Secretary of State had considered whether to claim public interest immunity. The first condition was also met. The reasons and evidential basis for withdrawing the passport were directly in issue, and the Secretary of State was entitled to rely on the sensitive material in defending the decision. Subject to PII, disclosure would therefore have been required.
2. The second condition requires the court to decide whether a closed procedure is necessary for the fair and effective administration of justice. A declaration should not be made where a satisfactory alternative exists. At this stage, however, the court need not undertake the detailed PII and gisting exercise that would follow in the substantive disclosure process.
3. On the material before the court, it was overwhelmingly likely that PII would protect the essence of the material on which the Secretary of State acted. Disclosure or gisting at the margins would not provide the detail necessary to resolve the legal issues fairly. PII was therefore not a satisfactory alternative.
4. The provisions of the 2013 Act should be given their natural meaning. The closed material procedure is exceptional, but the Act contains safeguards including review and revocation under section 7 and controls on withholding and summarising material under section 8.
5. Although section 6 confers a discretion to refuse a declaration, no feature of this case justified refusal. The proceedings were declared to be proceedings in which the Secretary of State could make a closed material application.