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
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
- 1 Nathan Collier: Montana man inspired by same-sex marriage ruling requests right to wed two wives
- 2 Amber Roof: Sister of Charleston shooting suspect Dylann Roof launches fund-raising appeal for wedding and honeymoon
- 3 'Help me I'm trapped in a factory' messages keep being found on bottles of vitamin water
- 4 Right to die: Belgian doctors rule depressed 24-year-old woman has right to end her life
- 5 BP hit with record $18.7 billion fine over Deepwater Horizon Gulf oil spill
Nathan Collier: Montana man inspired by same-sex marriage ruling requests right to wed two wives
Amber Roof: Sister of Charleston shooting suspect Dylann Roof launches fund-raising appeal for wedding and honeymoon
Russell Brand condemns moment of silence for Tunisia attack victims as a 'minute of bulls**t'
Right to die: Belgian doctors rule depressed 24-year-old woman has right to end her life
Worker killed by robot at Volkswagen car factory
Greece crisis: IMF was pushed around by Angela Merkel and Nicholas Sarkozy – and now it is being humiliated
Forget little green men – aliens will look like humans, says Cambridge University evolution expert
'I wish the BBC would stop calling it Islamic State' – David Cameron unleashes frustration at broadcaster
Greece crisis: The wider lesson is that it’s time to abandon this failed experiment in currencies
Girl, 7, stares down hate preacher at Ohio festival with pro-LGBT rainbow flag gesture
They are neither a 'state' nor 'Islamic': Why we shouldn't call them Isis, Isil or IS
£45000 - £55000 per annum: Recruitment Genius: An opportunity is available to ...
£16000 - £17000 per annum: Recruitment Genius: This world leading specialist i...
Negotiable: Recruitment Genius: This role's responsibility also include operat...
£27000 - £28000 per annum: Recruitment Genius: Their revenue and profit have g...