30. The Tribunal has made clear at paragraph 58 of its judgment in Kennedy that its
procedures must comply with the Convention requirements and that requires
consideration of whether the Rules are strictly necessary and proportionate in
achieving a reasonable relationship between interference with Convention rights and
the objectives of the “neither confirm nor deny” policy. The same considerations
must apply when the Tribunal exercises its powers under the Rules.
31. The Tribunal has a discretion under Rule 9 (4) as to the circumstances in which it will
hold a closed hearing and in general would expect the Respondents to give good
reasons for requesting the Tribunal to take that course. Those reasons may be
advanced on a closed basis and, if they are, the Tribunal has no power to disclose
them to the Claimants, absent the consent of the Respondents under Rule 6 (3). In
deciding whether to accede to an application for a closed hearing the Tribunal will
take into account both Article 6, and its duty to respect the “neither confirm nor
deny” policy which is essential for the protection of national security and the proper
functioning of the intelligence agencies.
32. In principle a closed hearing should only be necessary to protect sensitive
information or to comply with the “neither confirm nor deny” policy.
33. It is not necessary or appropriate at this stage to go any further in considering the
issues which have been raised by the Claimants as to the procedures which should
apply to any future closed hearings. This is an interlocutory hearing and the Tribunal
is only required at this stage to give such directions as are necessary to enable these
proceedings to continue.