would not have achieved the aim of preserving the secrecy of whether any interception had
taken place. It is also relevant that where the IPT finds in the applicant’s favour, it can
exercise its discretion to disclose such documents and information under r.6(4).”
23. It follows from the decisions of this Tribunal and the Court in Kennedy that rule 6
(2) pursues a legitimate aim, not only in directly protecting national security in
particular cases but also in indirectly protecting national security through the
“Neither Confirm nor Deny” policy, a policy accepted by the Court as compatible
with Article 6. In particular rule 6 (2) (a) avoids the risk of tipping-off a complainant
that he may have been a target of intelligence measures, whether through
surveillance or interception of communications. The reason for the rule, made
consistently with section 69 (6) (b), is to avoid the risk that the interests of national
security, or the prevention or detection of serious crime, or the proper functioning of
the intelligence services, might be compromised if a complainant were notified of the
need for a closed hearing, and thus was able to infer that he had been, or was
currently, the target of intelligence measures.
24. In their skeleton argument the Claimants submitted that for future hearings, the
Tribunal should adopt the approach to closed hearings set out by Lord Neuberger in
Bank Mellat v HM Treasury (No. 1) at [2013] UKSC 38 at [67-74]. It was submitted
that the Tribunal should hold open hearings whenever possible, the fact of all closed
hearings should be notified to Claimants, unless to do so would cause significant
harm to national security, and the Tribunal should minimise the extent of a closed
hearing. In the interests of fairness the Tribunal should seek to gist any closed
material and should consider the appointment of Counsel to the Tribunal or a Special
Advocate to represent the interests of the Claimants in any closed hearing.
25. At the hearing Miss Rose did not challenge the legitimate aim of Rule 6 (2) (a), nor
the “neither confirm nor deny” policy. The argument as developed was to the effect
that the Tribunal has a discretionary power under Rule 9 (4) to hold closed hearings
and that discretion should be exercised, consistently with the principles set out by
Lord Neuberger in Bank Mellat v. HM Treasury, so as to control the circumstances
in which closed hearings are permitted. Otherwise it was submitted the blanket
nature of the prohibition on disclosure of information, in Rule 6 (2) (a), would
conflict with Article 6. Alternatively it was submitted that Rule 6 (2) (a) would need