Law Report: Public interest immunity based on state security upheld: Balfour v Foreign and Commonwealth Office - Court of Appeal (Lord Justice Russell, Lord Justice McCowan and Lord Justice Hirst), 9 December 1993

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Where the risk to national security was demonstrated by a ministerial certificate claiming public interest immunity from the disclosure of material about the organisation of the security and intelligence services, the court should not exercise its right to inspect the material before ruling on the admissibility of the material.

The Court of Appeal dismissed the appellant employee's appeal from decisions of the Employment Appeal Tribunal and an industrial tribunal refusing to order disclosure by the Foreign Office of documents which were subject to claims of public interest immunity.

Following the appellant's dismissal from the Foreign and Commonwealth Office for obtaining the transfer of pounds 5,000 from an Iranian businessman, he applied to an industrial tribunal contending that he had been requested by the UK's security services to maintain contact with the businessman and that the transfer was pursuant to a legitimate business transaction between the Iranian and the appellant's brother-in-law. The Foreign Secretary and the Home Secretary signed three certificates claiming public interest immunity on the ground of national security in relation to the production of evidence about the organisation and operation of the security and intelligence services.

Robin Allan and Anthony Bradley (John Wadham, Liberty) for the appellant; Christopher Katkowski (Treasury Solicitor) for the Foreign Office.

LORD JUSTICE RUSSELL, giving the court's judgment, said that the views in Conway v Rimmer (1968) AC 910, a landmark case of the highest authority, which when applied to this case disposed of the appeal, had been reinforced by the House of Lords in CCSE v Minister for Civil Service (1985) AC 374, where Lord Fraser said at page 402: 'The decision on whether the requirements of national security outweigh the duty of fairness . . . is for the government and not for the courts; . . . the judicial process is unsuitable for reaching decisions on national security.' It seemed contrary to principle and to good sense to take a more open approach when issues of national security were raised by the appropriate ministers.

The court had not abdicated its responsibility, but it had recognised the constraints placed on it by the terms of the certificates issued by the executive.

There must always be vigilance by the courts to ensure that public interest immunity was raised only in appropriate circumstances and with appropriate particularity, but once there was an actual or potential risk to national security demonstrated by an appropriate certificate the court should not exercise its right to inspect.

The uninhibited prosecution of the appellant's claim for unfair dismissal could not prevail. The court did not accept that in such a situation a defendant should abandon his defence just as the Crown would abandon a prosecution where there existed a risk of the innocent being convicted.

Ying Hui Tan, Barrister