K, A & B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs

In closed-material judicial review claims engaging national security, Article 6 requires the court to identify what disclosure is necessary for a fair hearing, but it does not impose a uniform disclosure standard. The applicable approach depends on the nature and impact of the rights engaged and all the circumstances. The stringent disclosure requirement in AF (No.3) v SSHD applies where executive action imposes restrictions at the highest level, such as deprivation of liberty or comparable measures. It does not automatically apply to claims seeking protection, relocation or compensation. In such cases the court must balance the significance of undisclosed material against the harm disclosure may cause to national security. The voluntary nature of asserted national security work and the need to preserve an NCND regime are material contextual considerations.

The claimants brought public law claims concerning alleged service as covert human intelligence sources in Afghanistan. They sought protection, relocation and compensation, asserting that the defendants had or should have had a relevant policy. The claims were being determined under the closed material procedure in the Justice and Security Act 2013.

The Divisional Court had held that Article 6 did not apply and that no further disclosure was required. The Court of Appeal allowed the claimants’ appeal, holding that determination of the public law claims involved civil rights and that Article 6 applied in principle: [2016] EWCA Civ 1149. The issue remitted to the Divisional Court was the approach to further disclosure.

1. The claim was remitted for determination of the disclosure issue, and the court held that further disclosure was not automatically required. The Court of Appeal had decided only that Article 6 applied in principle. It had not decided that some particular further disclosure must be given.
2. Under section 14 of the Justice and Security Act 2013, read with CPR 82, the court’s duty is interpretative. The statutory structure is to prevent disclosure harmful to national security. The court does not order the Secretary of State to disclose material. It decides what material cannot be withheld consistently with Article 6. The Secretary of State may refuse to disclose it, but then cannot rely on it. The court may subsequently consider revocation of the closed material procedure under section 7.
3. Article 6 disclosure is context-specific. There is a spectrum rather than a hierarchy or single irreducible standard. The AF (No.3) v SSHD approach applies where executive action imposes restrictions on liberty, finances or movement of the requisite seriousness. It did not apply to these continuing protection claims, because no such restriction had been imposed on the claimants.
4. The claims nevertheless engaged interests at the higher end of the spectrum because they concerned asserted risks to life and limb. The court therefore had to balance the significance of material withheld from the claimants against the national-security harm its disclosure might cause. Relevant circumstances included the substantial policy issues that Special Advocates could address without further instructions, the claimants’ ability to give their full accounts, the focus on reviewing the defendants’ appraisal rather than conducting primary fact-finding, and the inability of Special Advocates to advance a positive factual response without instructions.
5. The asserted voluntary involvement in national-security work was also material. A claimant relying on such a relationship must accept that the procedure cannot jeopardise the system, including NCND, on which the protection of covert sources depends. The court indicated that practical steps should be taken, initially, to maximise disclosure and minimise harm.

• Court of Appeal: The earlier Divisional Court decision was reversed on the Article 6 issue. The Court held that determination of the public law claims engaged civil rights and that Article 6 applied in principle, requiring reconsideration of further disclosure: [2016] EWCA Civ 1149.
• High Court (Administrative Court): The disclosure issue was remitted for determination. The court held that the Court of Appeal had not ordered that further disclosure must be given and set out the applicable approach.