The Queen (on the application of Eric Kind) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lord Justice Bean |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] EWHC 710 (Admin) |
| Date | 26 March 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/0935/2019 |
[2021] EWHC 710 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Mr Justice Jay
CO/0935/2019
and
Ben Jaffey QC and Jude Bunting (instructed by Liberty) for the Claimant
Robin Tam QC and Richard O'Brien (instructed by Government Legal Department) for the Defendant
Tim Buley QC (instructed by the Special Advocates Support Office) as Special Advocate
Hearing date (for the OPEN proceedings): 16 th February 2021
Approved OPEN Judgment
Introduction
On 30 th November 2017 the Investigatory Powers Commissioner's Office (“IPCO”) offered Mr Eric Kind (“the Claimant”) the position of Head of Investigations. The purpose of his new role was to lead the investigatory work of IPCO into the security and intelligence services and other relevant bodies. The offer was made subject to “developed vetting” (“DV”) security clearance, and the Claimant accepted it on that footing.
On 28 th November 2018 the Secretary of State for the Home Department (“the Defendant”) refused the Claimant DV security clearance and he was therefore unable to take up his post.
In this application for judicial review the Claimant challenges the rationality of the Defendant's decision, the procedural fairness of the decision-making process, and its conformity with Article 8 of the Convention.
Sir Wyn Williams granted permission on the irrationality and Article 8 grounds. The Claimant has subsequently applied for permission to amend his grounds to include the procedural fairness challenge. It is clearly arguable and we therefore granted that application at the outset of the OPEN hearing.
These proceedings have involved both an OPEN and CLOSED procedure. A CLOSED judgment is being handed down on the same occasion as this OPEN judgment. Most of the salient points in this case can be addressed in OPEN.
There is also a confidential bundle which contains sensitive personal and financial information as well as the names of all the Claimant's referees. The Court has already directed that:
(1) pursuant to CPR r.39.2(3)(c), any reference to the confidential bundle be in private;
(2) pursuant to CPR r.31.22, documents in the confidential bundle not be open to inspection or provided to any non-party;
(3) any application to vary or set aside (1) and/or (2) above be made on notice to the parties.
The Facts
IPCO is the oversight body created by the Investigatory Powers Act 2016 following the publication of A Question of Trust, the report authored by Lord Anderson of Ipswich KBE, QC whose recommendations were largely accepted by Parliament. Lord Anderson recommended that “firm rules and strong oversight” were necessary, and that IPCO should aim to attract specialist staff from the domains of intelligence, computer science, technology, academia, law and the NGO sector. It is obvious that the net was being cast wide in order to attract a broad range of individuals from various backgrounds who would be expected to be both expert and independent.
IPCO's oversight functions of the three agencies (the Security Service, the Secret Intelligence Service and GCHQ) and other relevant bodies include keeping under review the exercise by them of their core functions and, being particularly relevant for present purposes, carrying out such investigations, inspections and audits as a Commissioner considers appropriate for the purposes of the Commissioner's functions: see s. 235 of the 2016 Act. By s. 238(5), subject to exceptions in s. 238(6), a Judicial Commissioner may delegate the exercise of the above functions to a member of staff.
The Claimant is, in his own words, “an independent expert and legal academic specialising in human rights standards and public policy relating to intelligence and surveillance activities”. He has spent his career in the academic and NGO sectors. In particular, he was Deputy Director at Privacy International for five years, during which time that organisation initiated litigation challenging various aspects of the legal framework governing the use of investigatory powers. He is a Visiting Lecturer in Surveillance Law at Queen Mary's College, London. He characterises his work in these terms:
“I have spent my whole career working in the public interest; researching and advocating, through proper channels, for accountability and transparency around the use of surveillance technologies and investigatory powers.”
In March 2017 the Claimant met Sir Adrian Fulford (The Rt. Hon. Lord Justice Fulford, currently Vice-President of the Court of Appeal, Criminal Division), the then newly-appointed Investigatory Powers Commissioner. They discussed the possibility of the Claimant taking up a position at IPCO. He was invited to apply and was offered the position of Head of Investigations. This was, the Claimant maintains, the culmination of efforts made by members of the intelligence community that he join IPCO in order to contribute to diversity of thought within the organisation and build trust between the security and intelligence agencies and law enforcement communities on the one hand and the NGO and activist sectors on the other.
The Claimant's intended role would give him access to a high volume of the most sensitive material from each of the three security and intelligence agencies. As the Defendant points out, the purpose of national security vetting is “to provide a level of assurance as to the trustworthiness, integrity and reliability of individuals working in sensitive or critical posts.” DV is the highest of the three security levels. The level of assurance needed “is proportionate to the individual's access to sensitive assets”.
In the present case, the decision on DV security clearance was to be taken by Cluster 2, a division of the Defendant. Cluster 2 was required to follow the Cabinet Office's Guidance, “HMG Personnel Security Controls”. As this Guidance makes clear, “all the relevant information is taken into account to reach a reasoned decision on an individual's suitability to hold a security clearance”. An application may be refused or withdrawn where “there are security concerns related to an individual's involvement or connection with activities, organisations or individuals associated with the threats described in this Statement …”. Central to the process is the vetting interview. Plainly, the evaluation being undertaken will focus on risk, not probability.
Para 40 of this Guidance is relevant:
“Where a clearance is refused or withdrawn, individuals will be informed, and provided with reasons, where possible. They will also be provided with information about the mechanisms for internal and external appeal …”
I should add that the Claimant as an applicant rather than an existing employee or office holder had no right of appeal under the Guidance or otherwise.
The vetting decision in the Claimant's case was also governed by the Cabinet Office's Vetting Decision Framework – Policy, Version 2.0 – April 2017 (“the VDF”). Paras 23 and 24 are particularly germane:
“23. [WORDS REDACTED] Vetting Officers, Assessors and Decision Makers must ensure that comments made reflect an impartial, balanced judgment of both the positive and negative aspects of the individual.
24. It is also important that Vetting Officers, Assessors and Decision Makers present specific evidence and examples [WORDS REDACTED]. This should be accompanied by an assessment of the level of risk. This will allow decisions to be fairly and transparently documented, which is particularly important if decisions are reviewed at a later date.”
Although the decision-maker was Cluster 2, UK Security Vetting (“UKSV”), then an agency of the Ministry of Defence, gathered the material evidence on which the decision would be based. This would come from a variety of sources, including the Security Service.
On 12 th February 2018 the Claimant completed a vetting form. It set out a range of information including his usage of social media and the internet, and his personal associations. The Claimant nominated four referees including Lord Anderson.
In the “Security Risks” section of the Vetting Form the Claimant stated as follows:
“I have spent time with a number of members of WikiLeaks including Julian Assange. I am not sure whether WikiLeaks actions are intended to overthrow or undermine Parliamentary democracy by political, industrial or violent means. But I can understand why someone might take that view of them. Certainly at the time that was not the purpose of spending time with them.
This was mostly in ~ 2011 to 2013. I don't recall exact dates and nor do I have old diaries and calendars to check. I worked with them on the release of the SpyFiles, which focused on companies unlawfully selling surveillance technologies to repressive countries. I shared a platform with Julian Assange launching the documents and subsequently visited him in the Ecuadorian Embassy on a handful of occasions.
I cut ties with Julian and WikiLeaks due to their extreme views and failure to confront the criminal charges before Julian. I have haven't [sic] spoken to him or them for a number of years.”
Under “Other Information” he stated:
“Due to my career working with activists and charities in a number of countries on a number of issues, there will no doubt be individuals I have met in the court [this should say, “course”] of...
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