We report recently that Lord Pannick QC asked Her Majesty’s Government a question in Parliament, namely whether the Government “will be publishing a response to proposals from the European Court of Justice for new rules of procedure that would permit the General Court to take into account, in actions for annulment, confidential information that has not been shown to some of the parties to the proceedings”. The draft rules are here.
Baroness Warsi, the senior Minister for Foreign and Commonwealth Affairs, has now given the following written answer: “The Government issued an Explanatory Memorandum on the 25 May in which it highlighted these proposals as a matter of particular interest. This is a complex and sensitive issue which Governments across the EU are very carefully considering. We are aware of parliamentary interest in this issue and will continue to update on developments. Under the Treaty on European Union national security remains the sole responsibility of each Member State”.
The Explanatory Memorandum states that at present the European court will only take into account material disclosed to the Court and to the other parties (Kadi 2 and ZZ), and that Articles 103 – 105 of the draft rules are intended to “allow Member States to rely on such information if they are not willing (for security or international relations reasons) to disclose it to the other party”. The Memorandum states that “the Government is examining this issue – which will require a careful balancing of competing priorities – in detail” and that it it is “engaging closely with other Member States, the Commission, and the Court on this proposal, and will update the Committees in due course”.
Importantly, the Memorandum also records that Article 105 of the draft rules “may have implications on the right to a fair trial (Article 6 of the ECHR). It is the Government’s view that such procedures (which have already been adopted in the UK) are capable of being consistent with fundamental human rights.”
It is difficult to see how Article 105 is “capable of being consistent” with Article 6. It permits a party (such as the Council of the EU) to submit that the communication of certain evidence would “harm the security of the European Union or its Member States or the conduct of their international relations”, and for the Court to take the material into account (having “weighed up” a number of factors) without it being disclosed to the other party. In assessing that material, the Court will “take account of the fact that a main party has not been able to make his views on it known” and “has not been fully able to exercise his rights of defence”.
Article 6 of the ECHR (the right to a fair hearing) as interpreted by the European Court of Human Rights and House of Lords, requires an “irreducible minimum” level of disclosure; individuals must be given sufficient information to enable them to give effective instructions in order to refute allegations against them (even if the supporting evidence can not be disclosed), even where it would be damaging to national security to disclose that “irreducible minimum”. The ECJ’s Kadi 2 and ZZ judgments both required disclosure of the “essence of the grounds” (i.e. an irreducible minimum). The new draft rules do not require this irreducible minimum.
It is also unclear what the FCO means when it says that these procedures have “already been adopted in the UK”. If the FCO is referring to the Justice & Security Act, those procedures are very different in a number of respects, including strict preconditions for a closed material procedure, and the presence of special advocates to represent the interests of listed parties. As far as we are aware, there is no procedure asking to Article 105 of the draft rules in the UK.