Belhadj and Security Service
MR JUSTICE BURTON
Approved Judgment
issues, which do not determine the merits of the
substantive matters or bring the proceedings to an end
for one of the reasons specified in rule 13(3). In the
circumstances there can be publication of the reasons
for legal rulings on preliminary issues, but, so far as
determinations are concerned, the Tribunal are
satisfied that section 68(4) and rule 13 are valid and
binding and that the distinction between information
given to the successful complainants and that given
unsuccessful complainants (where the NCND policy
must be preserved) is necessary and justifiable.”
It is right to say, as Mr Eadie submits, that there was then no argument before the
Tribunal by reference to the point now in issue, but nevertheless, without such
argument, we differentiated plainly between the consequences for successful and for
unsuccessful complainants.
(iii)
Mr Jaffey also drew specific attention to the decision of the ECtHR in
Kennedy v United Kingdom (2011) 52 EHRR 4, in which the Court
approved the procedures of this Tribunal, which were specifically being
challenged before the Court, and a part of the procedure, which was
addressed with approval, appears as follows:
“183. The Government argued that the procedure
before the IPT offered as fair a procedure as could be
achieved in the context of secret surveillance powers. .
. Finally, in the event that the complainant was
successful, a reasoned decision would be provided.
...
189. Concerning the provision of reasons, the Court
emphasises that the extent to which the duty to give
reasons applies may vary according to the nature of
the decision and must be determined in the light of the
circumstances of the case. In the context of the IPT's
proceedings, the Court considers that the “neither
confirm nor deny” policy of the Government could be
circumvented if an application to the IPT resulted in a
complainant being advised whether interception had
taken place. In the circumstances, it is sufficient that
an applicant be advised that no determination has
been in his favour. The Court further notes in this
regard that, in the event that a complaint is successful,
the complainant is entitled to have information
regarding the findings of fact in his case.”
(iv)
Finally Mr Jaffey referred to Hansard, on the basis that if, contrary to his
contention, the statutory scheme as construed by the Claimants in their
submissions was ambiguous, the Court could take into account the words of
the Minister on the occasion of the consideration by the House of Commons