MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
33. Those concerns have come into ever sharper focus as a
result of this large-scale, direct and deliberate attempt to find
out what information is held by the intelligence agencies.
34. The Tribunal has recognised that circumstances may arise
in which it is appropriate to put considerations of public safety
and security before rights of individuals to specific
determinations on their complaints. In Belhadj the Tribunal
left open the possibility that exceptional circumstances might
arise where, either by reference to discretionary Administrative
Court principles (pursuant to s. 67(2) of RIPA 2000) or
otherwise, it may be appropriate to preserve NCND when
approaching the Tribunal’s remedial discretion (see §18 of the
judgment dated 29 April 2015). The Tribunal did so even in
relation to individual cases in which a breach of the ECHR had
been found.
That discretionary Administrative Court
principles, which this Tribunal is obliged to apply pursuant to
section 67(2) of RIPA, can lead to a pragmatic approach, is
well recognised in the case law – see for example R (Tu) v
Secretary of State for the Home Department [2003] Imm AR
288 at §24. In addition it is well established that strong public
policy reasons can lead to denial of a remedy, even where
unlawfulness has been shown – see, for example, R v Attorney
General ex parte Imperial Chemical Industries [1987] 1
CMLR 72 at §112, R v General Medical Council ex parte Toth
[2000] 1 WLR 2209 at §6 and R (C) v Secretary of State for
Justice [2009] QB 657 at §41.
35. It is accordingly and unsurprisingly proper and
appropriate for public security considerations to impact on the
exercise of the Tribunal’s remedial discretion.
Such
considerations are squarely and obviously in play in
circumstances in which there is an orchestrated campaign the
central purpose of which appears to be to enable individuals to
discover whether information about them might be held by the
Agencies.”
34.
Mr Jaffey takes exception to, and joins issues with this, not least as set out in
paragraph 30 above, and in paragraphs 31-34 of his Reply:“31. The Respondents suggest that the generic foreseeability
declaration is appropriate even if the Tribunal finds that a
particular claimant has been a victim of unlawful conduct.
They argue that, where the Tribunal concludes that a public
body had acted unlawfully, it would be able to withhold not
only the details or reasons for its decision, but the very fact a
positive determination had been made. This cannot be correct.
32. First, the Tribunal has already determined this exact issue
in Belhadj. It rightly held that claimants had to be told when a