Closed judgments and national security

In this blog we examine the decisions in The Queen on the application of Privacy International v Investigatory Powers Tribunal [2022] EWHC 770 QB and Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 826 (QB), and the topic of closed judgments.  Neither judgment fully explains the reasoning behind their decisions, despite there being significant public interest in the outcome.

In a recent blog we discussed how certain information could be kept out of the public domain by way of reporting restrictions, anonymisation, hearings in private, or confidential schedules.  Closed judgments go further, and withhold the court’s reasoning, as well as various factual matters.

R (Privacy International) v Investigatory Powers Tribunal

This case concerns Privacy International, a highly successful Non-Governmental Organisation and charity concerned with privacy rights, and its battles with the security services and their use of personal data.

In 2016, in the case of Privacy International v Secretary of State for Foreign & Commonwealth Affairs & another [2016] UKIPTrib 14_85-CH (‘the 2016 Judgment’), the Investigatory Powers Tribunal (‘the Tribunal’) gave a judgment that, amongst other things, deferred certain questions to a later date.  That later date was ultimately 23 July 2018, when the Tribunal gave judgment in Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others [2018] UKIPTrib_15_110_CH (‘the 2018 Judgment’).  The 2018 Judgment concluded that the regime used by the security services MI5, MI6, and GCHQ (‘the Agencies’) to disclose Bulk Personal Datasets (‘BPDs’) to foreign intelligence agencies was lawful and complied with Article 8 of the European Convention on Human Rights (the right to respect for private and family life).

Privacy International brought judicial review proceedings (‘the JR’).  Following a lengthy stay, on 4 April 2022 the JR was determined (The Queen on the application of Privacy International v Investigatory Powers Tribunal [2022] EWHC 770 QB).  It is this judgment considered below.

The stay of the JR was to allow a separate judicial review of the 2016 Judgment to play out.  That judicial review was rejected by a Divisional Court (here) and the Court of Appeal (here) on the grounds that judicial review was not available due to the wording of the Regulation of Investigatory Powers Act 2000 (‘RIPA’), which provides at section 67, that determinations of the Tribunal shall not be “liable to be questioned in any court”.  The Court of Appeal’s judgment was appealed to the Supreme Court, whose judgment (Privacy International, R (on the application of)v Investigatory Powers Tribunal & Ors [2019] UKSC 22) held by a majority of 4-3 that judicial review was available in these circumstances.

When the judicial review of the 2018 Judgment was brought, it was accepted that under the law as it was at that time the judicial review was statute barred (by RIPA), and it was stayed pending the outcome of the decisions of the various courts in the appeal route from the 2016 Judgment.  Following the Supreme Court’s decision, the stay was lifted.  That allowed the judicial review of the 2018 Judgment to proceed, and resulted in the judgment this week.

What are BPDs?

BPDs are datasets associated with individuals containing huge amounts of information.  They are, in essence, a catalogue of everything a particular security service can find out about someone.  They were explained by MI5 to include the following:-

1. Law Enforcement Agencies/Intelligence. These datasets primarily contain operationally focussed information from law enforcement or other intelligence agencies.
2. These datasets contain information which enable the identification of individuals' travel activity.
3. These datasets allow the identification of individuals where the basis of information held is primarily related to communications data, e.g., a telephone directory.
4. These datasets allow the identification of finance related activity of individuals.
5. These datasets provide population data or other information which could be used to help identify individuals, e.g., passport details.
6. These datasets provide details of corporations/individuals involved in commercial activities.

It was agreed before the Tribunal that BPDs contain, amongst other things, large amounts of sensitive personal data, relating, in the majority of cases, to people in whom the Agencies have no interest.  It was also agreed that the information may be acquired covertly, and contain information that is subject to legal professional privilege (or other forms of privilege or confidentiality).  There was an admission by the Agencies that there had been instances of non-compliance with BPD safeguards, that there was no statutory oversight of the work done in connection with BPDs, and that prior to the publication of a report in 2015, there had been no public acknowledgment of the existence, holding, or use of BPDs.

These agreed matters make clear the issue with BPDs generally: a citizen, of no interest to the Agencies and posing no risk to national security, can have huge amounts of their personal data covertly collected, processed, and stored by the Agencies, with no knowledge about it whatsoever, and then have it disseminated to foreign security agencies.

The judicial review of the 2018 Judgment

Following the decision of the European Court of Human Rights in  Big Brother Watch v United Kingdom 58170/13, 62322/14, and 24960/15, it has been accepted by security agencies in particular that the protection of Article 8 rights requires agencies to implement safeguards against the unlawful disclosure of personal data, especially that data obtained by interception of communications.  Before the Tribunal, GCHQ had admitted various mistakes in the way those safeguards were implemented, but the Tribunal did not consider that those mistakes were sufficient to render the safeguards inadequate, and as such, the regime was compliant with Article 8.

The decision for the Court was whether the Tribunal’s assessment of the errors, and the finding that they were “episodic” rather than “systemic”, was made irrationally or was otherwise flawed on public law grounds.  As with all judicial review proceedings, it was not the Court’s role to revisit the decision making process afresh and remake the decision (though that process is sometimes used to assist in finding errors of procedure or flawed logic).

The Court determined that the Tribunal’s decision did not contain any legal error, and dismissed the claim for judicial review.  All of the Court’s reasoning as to why it reached this view is contained in a closed judgment.  As a result, it is very difficult to draw any conclusions as to the basis for the decision.

Comment

The 2018 Judgment and the recent Divisional Court judgment are both restricted in their content as a result of national security issues, further to an application under Rule 82 of the Civil Procedure Rules (‘CPR’).  That results in the ‘open’ and ‘closed’ judgments, whereby the open judgment discloses the decision publicly, and the closed judgment provides almost all of the reasoning and the detail.

Evidence being withheld from the public record, parties being anonymised, and hearings being held in private are very common.  What is much less common is the use of ‘closed material’.  The rules on closed material are also contained in CPR Rule 82.  The rules permit the use of closed material under the Justice and Security Act 2013.  Specifically in respect to judgments, at r.82.16, the rules state that the Court may only withhold any or any part of its reasons if it is not possible to give those reasons without disclosing information which would be damaging to the interests of national security.

This is a high hurdle, and judgments making use of the rule are generally confined to the Tribunal’s decisions and resultant appeals, or rendition or extradition cases that involve allegations of torture.  Even this judgment does not say anywhere within it that the closed judgment has been made pursuant to Rule 82.16 (though from the language used in the open judgment, it must have been).

As such, the reason that the judicial review has failed will not even be made available to the applicant party (Privacy International), and instead may be summarised (in a Court approved way) by the Special Advocates instructed to consider the closed material and make submissions on behalf of Privacy International.  Special Advocates are independently instructed barristers whose job is to advance a case on behalf of the party unable to review the closed material that relies on that closed material.

There are clearly policy and security considerations when determining whether and to what extent closed judgments should be used.  The principles of open justice are compelling but not inviolable, and derogations happen for reasons far less significant than national security.  The question to be asked though, is can the Agencies ever be defeated in obtaining closed materials orders?  We defer questions of national security to the Agencies, and it would be a brave judge who decides that, despite the Agencies giving statements endorsed with statements of truth to the effect that material must be closed in the interest of national security, that such an order will not be made.  The Tribunal is a specialist tribunal that is well-versed in dealing with these questions, and is staffed by some of the most senior and experienced (and specialist) judges in the country, but rejecting an application that security services claims is necessary in the interests of national security would be a big and highly significant step.

Attorney General v BBC

Policy and security decisions were also discussed in the recent judgment of Mr Justice Chamberlain in Her Majesty’s Attorney General for England and Wales v British Broadcasting Corporation [2022] EWHC 826 (QB), handed down on 7 April 2022.

In that case, the judgment concerns an application by the Attorney General for an interim injunction preventing the BBC from broadcasting a program about (and naming) ‘X’, a person said to be a “covert human intelligence source” (“CHIS”) working for MI5.  X is alleged to be a “dangerous extremist and misogynist” who physically and psychologically abused two female partners, and used the fact he worked for MI5 to control a victim.  The public interest in such a broadcast is obvious: the protection of women generally from an individual known to be dangerous to women.

The Attorney General argued that naming X would put his safety and national security at risk.

Much of the detail of the argument and reasoning is contained in Chamberlain J’s closed judgment.  The national security implications that are discussed in the open judgment merely explain the nature of a CHIS, the need for them, and the reliance on them by the security services.  Chamberlain J held that the viewers may believe that the basis for the disclosure was the victim’s word alone, and so may conclude that a CHIS’s anonymity could be removed on the basis of allegations, rather than actual wrongdoing.  As a result, Chamberlain J concludes that current or prospective CHISs may be put off from continuing in or taking up such a role, causing wider national security issues.

Chamberlain J also implies (plainly based on the Attorney General’s submissions) that if broadcast occurred, X would be given a new identity for his own protection, entirely negating any protective effect the broadcast would have in any event.

The reasoning and facts behind the findings are not developed in the open judgment, presumably because they have been in the closed judgment and their publication would defeat the purpose of the application.

Following the hand down of the judgment, the BBC published a statement here stating that it was considering the judgment further and whether there was a basis to appeal.

Accessing closed judgments

Access to the closed judgment can only be achieved by way of an application to the Court for an order revoking the declaration permitting closed material applications in proceedings under section 7 of the Justice and Security Act 2013.  Such applications will be slow, as the Court must consider all of the material that has been put before it in the proceedings themselves, not only that contained in the application to review and revoke the declaration.

We are unaware of any decisions over section 7 applications.

Should one be made and succeed, copies of closed judgments are preserved by the Royal Court of Justice’s Senior Information Officer in accordance with the Practice Direction issued by the Lord Chief Justice and Senior President of Tribunals in January 2019 (here).