Robert Fryers & Anor v The Secretary of State for Northern Ireland

A statutory appeal against a national security certificate is not an appeal on the merits. The Tribunal’s task is confined to deciding, by applying judicial review principles, whether the Minister had reasonable grounds for issuing the certificate.

In assessing national security, the decision-maker is entitled to a wide margin of appreciation and may adopt a precautionary approach. Previous disclosure of information, the passage of time, and disclosure of comparable material to other individuals are relevant considerations, but none is necessarily decisive. The Tribunal must examine the factual basis for the assessment and the lawfulness and rationality of the decision, while giving due weight to executive judgment on national security.

The appellants sought personal information concerning their detention and internment in Northern Ireland during the 1970s. The Public Records Office supplied files with substantial redactions. The Secretary of State for Northern Ireland issued national security certificates on 8 October 2018 under Data Protection Act 1998 section 28.

The appeals were transferred from the First-tier Tribunal to the Upper Tribunal and heard together. The appellants argued that the certificates involved a mistake of fact, failed to take account of previous disclosure, were irrational because disclosure had occurred decades earlier, and were irrationally inconsistent with the release of largely unredacted files to two other former internees.

The central issue was whether, applying judicial review principles under section 28(5), the Secretary of State lacked reasonable grounds for issuing the certificates.

1. Jurisdiction and approach. The appeals were statutory appeals under Data Protection Act 1998 section 28(5), not appeals on the merits. The Tribunal could quash the certificates only if, applying judicial review principles, the Secretary of State did not have reasonable grounds for issuing them (paras [48], [66]).
2. National security assessment. Applying [2001] UKHL 47, and confirming the approach in [2014] 3 WLR 1404 and [2021] 2 WLR 556, the Tribunal was required to give due weight to the Secretary of State’s assessment. Whether disclosure was necessary for safeguarding national security was principally a matter of judgment and policy, rather than a question of law. The Secretary of State was therefore entitled to a wide margin of appreciation (paras [67]-[70]).
3. Mistake of fact. The appellants’ mistake-of-fact argument depended on wording in the withdrawn 2014 and 2015 certificates. That wording did not appear in the certificates under appeal, issued on 8 October 2018. The ground therefore failed (paras [58]-[64]).
4. Previous disclosure and passage of time. The appellants had probably heard some of the evidence at their detention hearings, but there was no evidence that they retained all the information or documents nearly 50 years later. The Secretary of State rationally focused on whether the information was presently held by the appellants, rather than merely disclosed in the past. She was entitled to consider reasonably anticipated risks without proof of actual harm and was not bound by disclosure decisions made in the 1970s (paras [74]-[87]).
5. Comparable disclosures. The release of files to Clarke and McDonnell did not undermine the certificates. Those files had been released by a different decision-maker, without PSNI consultation, whereas the certificates followed a different review process and advice. The asserted inconsistency therefore did not establish irrationality (paras [88]-[95]).
6. Disposition. The Tribunal could not find that the Secretary of State lacked reasonable grounds. Both appeals were dismissed (paras [96]-[97]).

• First-tier Tribunal (General Regulatory Chamber): The appeals against the certificates were transferred to the Upper Tribunal under rule 19 of the First-tier Tribunal (General Regulatory Chamber) Rules 2009.
• Upper Tribunal (Administrative Appeals Chamber): The appeals were directed to be heard together and were dismissed. The Tribunal applied Data Protection Act 1998 section 28(5) and judicial review principles.