Court dismisses Home Office objection that mirrored rights groups' concerns over government's use of secret evidence
Seven Algerian nationals suspected of terrorism have resisted attempts to deport them by turning the tables on the government's support for using secret evidence in court.
In a complex judgment affecting the procedures of the special immigration appeals commission (Siac), the supreme court dismissed the home secretary's objection to material being presented that could not be tested in a hearing.
Five justices at the supreme court, including the president, Lord Phillips, unanimously allowed the appeals of the Algerians, who fear they will be tortured if returned to north Africa.
The Algerians wanted to bring in a witness, referred to as W, who would present evidence about the risk of ill-treatment in Algeria, contradicting official assurances from the country's government. However, W was only prepared to appear if his identity and evidence remained "absolutely and irrevocably confidential".
Siac, which deals with security-sensitive immigration and deportation cases, has for the past 15 years operated a system of "closed material procedures" in which a judge can be presented with evidence that may not be seen by the claimant or communicated further.
Ken Clarke, the justice secretary, is proposing to extend the use of such procedures into the civil courts in the face of strong opposition from civil liberties groups. They have warned that evidence presented to court that has not been subject to cross-examination or otherwise tested cannot be trusted to be accurate or true.
In the case of the seven Algerians, lawyers for the home secretary, Theresa May, were forced to deploy an identical argument.
The supreme court judgment noted that one of the government's points was that "so far as the conduct of the [Siac] appeals is concerned, the ability of the secretary of state to participate in them effectively may be seriously undermined by an irrevocable non-disclosure order … the secretary of state will be denied the ability to test the reasons or to obtain information and/or adduce evidence from or with the assistance of the Algerian authorities to demonstrate that the asserted reasons for the claim to confidentiality are groundless."
Home Office lawyers also argued that the secretary of state could find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet be unable to alert the foreign state to the risk. This, it was alleged, could gravely imperil future diplomatic relations.
Agreeing that Siac could make an irrevocable non-disclosure order, allowing witness W to give evidence in the deportation proceedings, Lord Dyson acknowledged that it was not an ideal solution.
"I accept that to make such an order is a striking step for any court to take and is contrary to the instincts of any common lawyer," he said. "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. Regrettably, however, the circumstances of a case sometimes call for unusual and undesirable remedies."
The court also ruled that "it must surely be a substantial defence to any diplomatic complaint" by a foreign country that ministers were obliged to comply with a "final and absolute" court order.
Whether the Algerians will ultimately be deported depends upon the immigration tribunal's future finding. In his written judgment, Lord Brown pointed out: "It must, of course, now be for Siac to consider what, if any, impact our decision has upon the outcome of these appellants' individual appeals: whether there is a need now to reopen them and what, if any, orders should now be made."
A Home Office spokeswoman said: "This judgment is based on a narrow point of legal process and does not change our intention to seek the deportation of these men as soon as possible because they remain a national security risk."
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