Abdule & Ors v The Foreign and Commonwealth Office & Ors

For a declaration under section 6 of the Justice and Security Act 2013, the Secretary of State need only have considered whether to claim public interest immunity; a claim need not have been made. At the declaration stage, the first condition is not confined to central or core allegations. One sensitive passage in one document may suffice, provided it relates to an issue and the second condition is met. The court must decide whether a closed material procedure is necessary for the fair and effective administration of justice, having regard to satisfactory alternatives. The procedure remains an exceptional departure from open and natural justice. Where the statutory conditions are fulfilled, however, refusal to make the declaration will be rare.

The claimants brought tort claims against the Foreign and Commonwealth Office, the Home Office and the Attorney General arising from the first claimant’s detention and alleged mistreatment in Somalia. The defendants denied that English law applied and were unable to plead fully in open proceedings. The Secretary of State applied under section 6 of the Justice and Security Act 2013 for a declaration permitting a closed material application. The central questions were whether the statutory pre-condition and two statutory conditions were met, whether alternative procedures such as public interest immunity, gisting or a confidentiality ring were adequate, and whether the court should exercise its discretion to make the declaration.

1. The court was satisfied that the Secretary of State had considered whether to make, or advise another person to make, a public interest immunity claim. Section 6(7) required consideration of that question, but did not require a claim to be made or the court to review whether such a claim would succeed.
2. The first statutory condition was satisfied. The defendants would be required to disclose sensitive material within section 6(4). The court rejected any additional requirement that the material concern a central or core allegation. Material relevant to one issue may suffice, although material so peripheral that an adequate alternative is plainly available may fail the second condition.
3. “Sensitive material” means material whose disclosure would be damaging to national security. The court had to assess the future consequence of disclosure, giving close attention to the views of those with relevant expertise and constitutional responsibility for national security.
4. The second condition was also satisfied. A closed material procedure is exceptional, but the statutory provisions should receive their natural meaning, subject to any reading down required by article 6 of the European Convention on Human Rights. The court considered public interest immunity, gisting and confidentiality rings, but found none satisfactory or appropriate. The seriousness of the claim reinforced the need for a procedure enabling the defendants to defend themselves fully and avoiding the possibility that no trial could take place.
5. Although section 6(1) conferred a discretion, circumstances in which the court would refuse a declaration after finding the statutory conditions fulfilled were likely to be rare. This was not such a case. The court therefore declared that the proceedings were proceedings in which a closed material application might be made. Directions for the section 8 application were left for consideration.