Reprieve v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 30 June 2021 |
| Neutral Citation | [2021] EWCA Civ 972 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T3/2020/1211 |
The Queen on the application of
[2021] EWCA Civ 972
THE RT HON THE Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Stuart-Smith
and
THE RT HON Lady Justice Elisabeth Laing DBE
Case No: T3/2020/1211
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
The President of the Queen's Bench Division and Mrs Justice Farbey
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Jaffey QC, Mr Jason Pobjoy and Ms Natasha Simonsen (instructed by Birnberg Peirce) for the Appellants
Sir James Eadie QC, Mr Ben Watson QC and Mr James Stansfeld (instructed by The Government Legal Department) for the Respondent
Hearing date: 28 April 2021
Approved Judgment
Introduction
This is the judgment of the Court to which all members have contributed.
The underlying judicial review proceedings behind this appeal seek to challenge the decision of the Prime Minister, announced on 18 July 2019, not to hold a public inquiry into alleged complicity of British state agents in the unlawful rendition, detention and mistreatment of individuals by other states in the years following the attack on New York in September 2001. The Divisional Court (Dame Victoria Sharp P and Farbey J) determined two preliminary issues against the claimants. The claimants appeal against that determination. The issues are:
a) Does article 6(1) of the European Convention on Human Rights (“the Convention”) apply to the claim for judicial review? and, if it does,
b) Are the claimants entitled to disclosure in accordance with the standard set in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 (“ AF (No 3)”)?
The Divisional Court answered ‘no’ to each question.
The factual background
On 6 July 2010, the then Prime Minister, the Rt Hon David Cameron MP, announced that the Rt Hon Sir Peter Gibson would chair an independent inquiry to investigate the allegations (“the Gibson Inquiry”). The Gibson Inquiry would not be fully public because some information would need protection, but it would be able to consider all the relevant material. The Gibson Inquiry then began its preparatory work.
On 12 January 2012, the Metropolitan Police announced a criminal investigation into allegations concerning the rendition and mistreatment of two Libyan nationals (Messrs al-Saadi and Belhaj). On 18 January 2012, the Lord Chancellor and Secretary of State for Justice, the Rt Hon Kenneth Clarke QC MP, announced that the Gibson Inquiry could not start formally until the end of the police investigation. He said that the Government intended to have “an independent, judge-led inquiry” once the investigation was over, to “establish the full facts and draw a line under these issues”.
Sir Peter's report on his inquiry's preparatory work (“the Gibson Report”) was published in December 2013. The Government's response was to say that it would be wrong for an inquiry to be held into matters which the police were still investigating. It invited the Intelligence and Security Committee of Parliament (“the ISC”) to look into issues raised by the Gibson Report. After the ISC inquiry and the police investigation, the Government would be able to take a final view on whether a further judicial inquiry was necessary.
On 9 October 2018, the ISC published two reports: “Detainee Mistreatment and Rendition: 2001–2010”, and “Detainee Mistreatment and Rendition: Current Issues”. The Government published its response to those reports on 22 November 2018. On 18 July 2019, the Minister for the Cabinet Office, the Rt Hon David Lidington MP, announced that the Government had decided not to hold an inquiry because the various steps which had been taken had led to improved policies and practices.
The claim
The claim was lodged on 9 October 2019. The claimants invoke article 3 of the Convention, and the positive procedural obligation to hold an effective independent investigation into allegations of torture and ill-treatment. The claimants argue that that procedural obligation binds the Government in this case, and that the decision not to hold an inquiry breaches it. They contend also that the decision is irrational because the steps taken by the Government were not a sufficient reason for abandoning a public inquiry into the allegations.
In defence of the claim, the Prime Minister wishes to rely on material which cannot be disclosed without damaging the interests of national security. Hilliard J granted permission to apply for judicial review on 25 November 2019 and Special Advocates have since been appointed. The closed process, which has been stayed pending resolution of the preliminary issues, will be governed by the provisions of the Justice and Security Act 2013.
The decision on the preliminary issues would help to define, in due course, the scope of the disclosure which the Prime Minister will have to make to the claimants in the judicial review proceedings.
Section 1(1) of the 1998 Act defines “the Convention rights”. They are set out in Schedule 1. They include articles 3 and 6. In interpreting Convention rights, a court must “take into account” the materials listed in section 2(1). Those include judgments and decisions of the European Court of Human Rights (“the Strasbourg Court”) (section 2(1)(a)).
Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. “Public authority” includes “any person certain of whose functions are of a public nature but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament” (section 6(6)).
Section 7 is headed “Proceedings”. Section 7(1) enables a person who claims that a public authority has acted, or proposes to act, in a way which is made unlawful by section 6(1) to bring proceedings against that authority in the appropriate court or tribunal (defined in section 6(2)) or to rely on the Convention rights in any legal proceedings, but “only if he is (or would be) a victim of the unlawful act”. Section 7(3) provides that if proceedings are brought on an application for judicial review, “the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act”. By section 7(7), a person is a victim of an unlawful act “only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in [the Strasbourg Court] in respect of that act”.
Article 34 of the Convention provides:
“Individual applications
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
Article 34 can be contrasted with article 33, which permits any of the contracting parties to refer to the Strasbourg Court “any alleged breach of the provisions of the Convention and the Protocols thereto” by another contracting party.
Article 3 provides:
“Prohibition of torture
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 6(1) has a civil and a criminal limb. It provides:
“Right to a fair trial
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Both are set out in Schedule 1 to the 1998 Act.
The Judgment of the Divisional Court
The scope of article 6
The court noted that the phrase “civil rights and obligations” has an autonomous meaning under the Convention. Some rights which would be seen as public law rights in England and Wales fall within article 6(1) if “the outcome is decisive for private rights and obligations” ( Ferrazzini v Italy (2002) 34 EHRR 45, para 27). Claims made in public law proceedings do not necessarily engage article 6 (para 14). Some involve the “hard core of public-authority prerogatives” referred to in para 29 of Ferrazzini (a tax dispute did not come within article 6). The Divisional Court referred to Maaouia v France (2001) 33 EHRR 42: immigration decisions do not determine civil rights even when someone is resisting an adverse immigration decision by relying on Convention rights, as is very common (para 15). The test for deciding whether article 6 is engaged is “the nature of the proceedings and not the articles of the Convention which are alleged to be violated” ( RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2010] 2 AC 110, at para 175).
The court deduced four propositions from its review of...
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