MR JUSTICE BURTON
Approved Judgment
assistance of the Commissioner, the position as to what can and cannot
safely be disclosed without prejudicing national security will be kept under
review. That is a welcome approach. It does not mean that there are any
more details which can at present be disclosed without such risk.
133.
134.
At the second open hearing on 31 October, the fact of the disclosure of documents
in the Belhadj case was the subject of discussion and submission, but the Claimants
had not had the opportunity of studying them in full. The Tribunal agreed that they
could put in short further submissions in writing after doing so, in respect of any
matters which arose out of the Belhadj documents once they had fully perused
them. The primary purpose of doing so was in case there were found to be anything
in those documents which appeared to be inconsistent with the content of the
Disclosures. We have addressed that in paragraphs 130-131 above. However
Liberty in particular put in lengthy further written submissions which were not
limited to that point:
(i)
Mr Ryder made an argument that the Belhadj documents should not have
been produced (in part) by way of gisting, but by way of service of the full
document redacted, showing the deletions. Quite apart from the fact that
the Tribunal could not see how this arose for consideration in the present
case, the Tribunal (differently constituted) has given a reasoned judgment
on this very point in Belhadj on 18 November 2014 ([2014] UKIPTrib
13_132-9H_2), to which reference can be made, and which this Tribunal
sees no purpose in reconsidering.
(ii)
A request for disclosure, at this very late stage, of further documents from
the Respondents is now made, by reference to the fact that the Respondents
disclosed (in redacted or gisted form) some extracts of the GCHQ
compliance procedures in the Belhadj case, relating specifically to legal
professional privilege (“LPP”), and it is suggested that similar documents
could now be disclosed by the Respondents in this case (although of course,
as set out in paragraph 130 above, on a basis far wider than a scope which is
limited to LPP). In this case there has been disclosure to the Tribunal by
the Respondents pursuant to s.68(6) of RIPA, as referred to in paragraph
46(iv) above, and there has been a closed hearing at which the documents in
respect of which the Respondents claim protection on national security
grounds have been considered by the Tribunal. The Tribunal in this case is
tasked to judge the adequacy of the arrangements, both above and below
the waterline, and to judge accessibility, by reference to the extent to which
the scope of the discretion of the Respondents is revealed or the nature of
the arrangements is adequately signposted. Particularly at this late stage of
the proceedings, after the close of the hearings, further disclosure to the
Claimants is unnecessary. If there is inadequate signposting above the
waterline of the arrangements below the waterline, then the Respondents
will fail. This is not a case which depends, particularly at this late stage,
upon the need for any further disclosure to the Claimants.
Mr Ryder also sought to introduce in those written submissions a much wider
argument. He submitted that in the light of the late stage in the proceedings (not
until the date of the Respondents’ skeleton on 3 July 2014) at which the
Respondents admitted that the ambit of Article 10 could apply to the investigatory