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Supreme Court sanctions 'clear breach' of natural justice

7 March 2012

The Supreme Court has admitted that it is sanctioning a “clear breach of the principles of natural justice” by allowing the Special Immigration Appeals Commission to impose an irrevocable non-disclosure order on the home secretary.

The case involves three Algerian nationals, all suspected terrorists, who the home secretary, Theresa May, is proposing to deport to Algeria on national security grounds.

The men appealed to SIAC against the decision, made under section 3(5) of the Immigration Act 1971, but SIAC held that their deportation was lawful and compatible with the ECHR. The Court of Appeal agreed.

Lord Dyson said the issue was whether the men would suffer ill-treatment contrary to article 3 of the convention (prohibition on torture) if they were returned.

He said one of the men wanted to put forward material from a source in Algeria relevant to their safety, but the source was willing to tell his story only if he obtained an “absolute and irrevocable assurance that there would no onward disclosure” to the Algerian government.

The home secretary argued that it was never appropriate to make such an order on the basis of a hearing from which she was excluded.

Delivering judgment in W and BB v Home Secretary [2012] UKSC 8, Lord Dyson said an order would deny the home secretary the ability to test the source’s reasons and evidence with the help of the Algerian government.

Lord Dyson said he accepted that the making of an irrevocable non-disclosure order was a “striking step for any court to take and is contrary to the instincts of any common lawyer”.

He went on: “It is inimical to the fundamental principles which we rightly cherish of open justice and, above all, procedural fairness.

“To make an order without giving the secretary of state an opportunity to be heard is a clear breach of the principles of natural justice. Any such order requires compelling justification.”

Lord Dyson said the circumstances of a case sometimes called for “unusual and undesirable” remedies and ultimately the court had to decide what was in the interests of justice.

Lord Brown, who gave the leading judgment, said: “It is lesser evils which the court is searching for here, not positive solutions.”

He added that he was “far from enthusiastic” about irrevocable non-disclosure orders, which should be used “most sparingly”.

Lord Brown and Lord Dyson ruled that the men’s appeals on the disclosure order should be allowed and it was for SIAC to consider whether to reopen the cases and make any order. Lords Phillips, Kerr and Wilson agreed.

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