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

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

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Clinical Lead / RGN

£40000 - £42000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: IT Sales Consultant

£35000 - £40000 per annum: Recruitment Genius: This IT support company has a n...

Recruitment Genius: Works Engineer

Negotiable: Recruitment Genius: A works engineer is required in a progressive ...

Recruitment Genius: Trainee Hire Manager - Tool Hire

£21000 - £25000 per annum: Recruitment Genius: Our client is seeking someone w...

Day In a Page

Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
Theme parks continue to draw in thrill-seekers despite the risks - so why are we so addicted?

Why are we addicted to theme parks?

Now that Banksy has unveiled his own dystopian version, Christopher Beanland considers the ups and downs of our endless quest for amusement
Tourism in Iran: The country will soon be opening up again after years of isolation

Iran is opening up again to tourists

After years of isolation, Iran is reopening its embassies abroad. Soon, there'll be the chance for the adventurous to holiday there
10 best PS4 games

10 best PS4 games

Can’t wait for the new round of blockbusters due out this autumn? We played through last year’s offering
Transfer window: Ten things we learnt

Ten things we learnt from the transfer window

Record-breaking spending shows FFP restraint no longer applies
Migrant crisis: UN official Philippe Douste-Blazy reveals the harrowing sights he encountered among refugees arriving on Lampedusa

‘Can we really just turn away?’

Dead bodies, men drowning, women miscarrying – a senior UN figure on the horrors he has witnessed among migrants arriving on Lampedusa, and urges politicians not to underestimate our caring nature
Nine of Syria and Iraq's 10 world heritage sites are in danger as Isis ravages centuries of history

Nine of Syria and Iraq's 10 world heritage sites are in danger...

... and not just because of Isis vandalism
Girl on a Plane: An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack

Girl on a Plane

An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack
Why Frederick Forsyth's spying days could spell disaster for today's journalists

Why Frederick Forsyth's spying days could spell disaster for today's journalists

The author of 'The Day of the Jackal' has revealed he spied for MI6 while a foreign correspondent
Markus Persson: If being that rich is so bad, why not just give it all away?

That's a bit rich

The billionaire inventor of computer game Minecraft says he is bored, lonely and isolated by his vast wealth. If it’s that bad, says Simon Kelner, why not just give it all away?
Euro 2016: Chris Coleman on course to end half a century of hurt for Wales

Coleman on course to end half a century of hurt for Wales

Wales last qualified for major tournament in 1958 but after several near misses the current crop can book place at Euro 2016 and end all the indifference