KENNEDY v. THE UNITED KINGDOM JUDGMENT
27
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167. ... the very fact that this rule is of an absolute blanket nature is, in the judgment
of the Tribunal in the circumstances, fatal to its validity ... the Tribunal have
concluded that the very width of the rule preventing any hearing of the proceedings in
public goes beyond what is authorised by section 69 of RIPA.
...
171. There is no conceivable ground for requiring legal arguments on pure points of
procedural law, arising on the interpretation and validity of the Rules, to be held in
private ...
172. Indeed, purely legal arguments, conducted for the sole purpose of ascertaining
what is the law and not involving the risk of disclosure of any sensitive information,
should be heard in public. The public, as well as the parties, has a right to know that
there is a dispute about the interpretation and validity of the relevant law and what the
rival legal contentions are.
173. The result is that rule 9(6) is ultra vires section 69. It does not bind the
Tribunal. The Secretary of State may exercise his discretion under section 69(1) to
make fresh rules on the point, but, unless and until he does, the Tribunal may exercise
their discretion under section 68(1) to hear the legal arguments in public under rule
9(3), subject to their general and specific duties, such as rule 6(1) in the Rules and in
RIPA. It is appropriate to exercise that discretion to direct that the hearing of the
preliminary issues shall be treated as if it had taken place under rule 9(3) in public,
because such a preliminary hearing of purely legal arguments solely on procedural
issues does not pose any risk to the duty of the Tribunal under rule 6(1) or to the
maintenance of the [neither confirm nor deny] policy. The transcripts of the hearing
should be made available for public consumption.”
94. Regarding other departures from the normal rules of adversarial
procedure as regards the taking of evidence and disclosure in Rule 6, the
IPT concluded:
“181. ... that these departures from the adversarial model are within the power
conferred on the Secretary of State by section 69(1), as limited by section 69(6). A
reasonable rule-making body, having regard to the mandatory factors in section 69(6),
could properly conclude that these departures were necessary and proportionate for
the purposes stated in section 69(6)(b). In the context of the factors set out in that
provision and, in particular, the need to maintain the [neither confirm nor deny]
policy, the procedures laid down in the Rules provide a 'fair trial' within Article 6 for
the determination of the civil rights and obligations arising in claims and complaints
under section 65 of RIPA.
182. They are also compatible with Convention rights in Articles 8 and 10, taking
account of the exceptions for the public interest and national security in Articles 8(2)
and 10(2), in particular the effective operation of the legitimate policy of [neither
confirm nor deny] in relation to the use of investigatory powers. The disclosure of
information is not an absolute right where there are competing interests, such as
national security considerations, and it may be necessary to withhold information for
that reason, provided that, as in the kind of cases coming before this Tribunal, it is