R v. Secretary of State for the Home Department, Ex parte Hosenball

R v Secretary of State for the Home Department, ex parte Hosenball

COURT OF APPEAL, CIVIL DIVISION

[1977] 3 All ER 452, [1977] 1 WLR 766, 141 JP 626

Hearing Date: 25, 28, 29 MARCH 1977

29 MARCH 1977

Index Terms:

Alien - Deportation - Order - Validity - Natural justice Deportation in the interest of national security - Applicability of rules of natural justice - Particulars of allegations against person to be deported - Refusal of Secretary of State to give particulars - Non-statutory advisory procedure - Minister's undertaking in House of Commons outlining advisory procedure and statement of immigration rules as to procedure - Whether undertaking and statement of rules disclosure of particulars of the allegations if sources of information would not be revealed - Whether immigration rules rules of law - Immigration Act 1971, ss 3(2), 5(b), 15(3) - Statement of Immigration Rules for Control after Entry: EEC and other Non-Commonwealth Nationals (HC 82), r 42.

Held:

The applicant, a United States citizen, worked in England for a journal which made a feature of investigative journalism. He took part in the preparation of an article which was published in the journal about the monitoring of communications by the government. In July 1976 he left that journal and became a reporter for a London evening newspaper. On 15th November 1976, four weeks before the applicant's permit to stay in the United Kingdom was due to expire, he received a letter from the Home Office which stated that the Secretary of State had information that the applicant had obtained for publication information harmful to the security of the United Kingdom which included information prejudicial to the safety of servants of the Crown, and therefore had decided that it would be conducive to the public good as being in the interests of national security to make a deportation order against him, under s 3(5)(b) a of the Immigration Act 1971. The applicant immediately consulted his lawyers who requested the Home Office to give further particulars of the allegations against him. The Secretary of State himself considered that request but refused to give further particulars of the allegations because, in his view, it was not in the interests of national security to add anything to the statement contained in the letter of 15th November. Under s 15(3) b of the 1971 Act there was no right of appeal against a decision to make a deportation order in the interests of national security, but in accordance with an undertaking c given by the then Secretary of State in the House of Commons during the passage of the 1971 Act and under r 42 of the Immigration Rules d made in 1973 pursuant to s 3(2) e of the 1971 Act, the decision to make such a deportation order was subject to a non-statutory advisory procedure whereby the person it was proposed to deport could make representations and call witnesses before a panel of three advisers to the Secretary of State. The undertaking given in the House of Commons stated that the person proposed to be deported would be given such particulars of the allegations against him as would not entail disclosure of sources of evidence and r 42 stated that he would be informed, so far as possible, of the nature of the allegations against him. The applicant was given a hearing before the advisory panel. He made representations, through his solicitor, to the panel and called witnesses as to his good character. On consideration of the panel's report, which was not made available to the applicant, the Secretary of State made a deportation order against the applicant. The applicant applied to the Divisional Court for an order of certiorari to quash the deportation order. The court dismissed the application and the applicant appealed to the Court of Appeal, contending that under the rules of natural justice or by virtue of the undertaking given in the House of Commons and r 42 of the Immigration Rules, the Secretary of State was required to distinguish between particulars of the allegations which could be disclosed without revealing sources of information and those which could not properly be disclosed, and to disclose the former, and that a general statement by the Secretary of State that it was not in the interests of national security to give any particulars of the allegations was not sufficient and was not binding on the court. a Section 3(5), so far as material, provides: 'A person who is not a patrial shall be liable to deportation from the United Kingdom... (b) if the Secretary of State deems his deportation to be conducive to the public good.' b Section 15(3) is set out at p 457 j to p 458 a, post c 819 H of C Official Report (5th series) col 376 d Statement of Immigration Rules for Control after Entry: EEC and Non-Commonwealth Nationals (25th January 1973), HC 82 e Section 3(2), so far as material, is set out at p 463 c, post Held - The appeal would be dismissed for the following reasons -- (i) Where national security was involved the rules of natural justice were liable to be modified. The public interest in the security of the realm was so great that the sources and nature of the highly confidential information supplied to the Secretary of State for the purpose of reaching a decision to make a deportation order in the interests of national security ought not to be disclosed. Accordingly, the requirement of the public interest that such information should be kept confidential might outweigh the public interest in the administration of justice. The balance to be held between those two public interests was a matter for the Secretary of State since he had been entrusted by the 1971 Act with the decision to make a deportation order which was in the interests of national security. Since the Secretary of State had given his personal consideration to the request for further particulars of the allegations against the applicant and there was no reason to doubt that he had considered the request with care, he was entitled to refuse to give any further particulars of the allegations and in respect of that refusal was answerable to Parliament and not to the courts (see p 457 a c and f, p 460 f to h, p 461 d e and g, p 464 g to e, p 465 c and p 466 b and f, post); dicta of Lord Reid in Rogers v Secretary of State for the Home Department, Gaming Board for Great Britain v Rogers [1972] 2 All ER at 1061 and of Lord Denning MR in D v National Society for the Prevention of Cruelty to Children [1976] 2 All ER at 999, 1000 applied. (ii) Furthermore, the rules made by the Secretary of State under s 3(2) of the 1971 Act were not strict rules of law but merely rules of practice for the guidance of those entrusted with the administration of the 1971 Act. Accordingly, although the courts should have regard to those rules as a touchstone whether the Secretary of State had acted fairly, r 42 of the rules did not require disclosure of particulars of the allegations against the applicant and failure to comply with the terms of r 42 did not constitute unfairness. Moreover, the undertaking given in the House of Commons, which did not have any statutory effect, did not require disclosure of the allegations (see p 459 a c and h, p 462 e f and h to p 463 a and h, p 464 e and p 466 a and g, post); dictum of Roskill LJ in R v Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi [1976] 3 All ER at 848 not followed. Per Lord Denning MR and Cumming-Bruce LJ. The special advisory procedure is not to be enforce by means of a writ of mandamus or certiorari simply because there has been a departure from it. But nevertheless it is subject to the supervision of the court. If the body concerned, whether it be a Minister or advisers, has acted unfairly, then the courts can review their proceedings so as to ensure, as far as may be, that justice is done (see p 459 g, post).

Notes:

For the rules of natural justice, see 30 Halsbury's Laws (3rd Edn) 718, 719, paras 1368, 1369. For the Immigration Act 1971, ss 3, 5 and 15, see 41 Halsbury's Statutes (3rd Edn) 20, 24 and 36.

Cases referred to in the Judgment:

Birdi (Ram Chand) v Secretary of State for Home Affairs (1975) 119 Sol Jo 322, CA. Board of Education v Rice [1911] AC 179, [1911-13] All ER Rep 36, 80 LJKB 796, 104 LT 689, 75 JP 393, 9 LGR 652, HL, 19 Digest (Repl) 630, 206. D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589, [1977] 2 WLR 201, HL; rvsg [1976] 2 All ER 993, [1976] 3 WLR 124, CA. K(H) (an infant), Re [1967] 1 All ER 226; sub nom Re HK (an infant) [1967] 2 QB 617, [1967] 2 WLR 962, DC, Digest (Cont Vol C) 18, 157qa. Kanda v Government of Federation of Malaya [1962] AC 322, [1962] 2 WLR 1153, PC, 37 Digest (Repl) 189, * 8. Liversidge v Anderson [1941] 3 All ER 338, [1942] AC 206, 110 LJKB 724, 116 LT 1, HL, 17 Digest (Reissue) 467, 28. Pearlberg v Varty (Inspector of Taxes) [1972] 2 All ER 6, [1972] 1 WLR 534, 48 Tax Cas 14, [1972] TR 5, 51 ATC 4, HL, Digest (Cont Vol D) 504, 2000a. ex parte Salamat Bibi [1976] 3 All ER 843, [1976] 1 WLR 979, CA. R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 All ER 770, [1967] 2 QB 864, [1967] 3 WLR 348, DC, Digest (Cont Vol C) 282, 2557c. R v Governor of Brixton Prison, ex parte Soblen [1962] 3 All ER 641, [1963] 2 QB 243, [1962] 3 WLR 1154, CA, Digest (Cont Vol A) 24, 149a. R v Halliday [1917] AC 260, 86 LJKB 1119, 116 LT 417, 81 JP 237, 25 Cox CC 650, HL, 17 Digest (Reissue) 465, 20. R v Hardy (1794) 24 State Tr 199, 22 Digest (Reissue) 431, 4292. Rogers v Secretary of State for the Home Department, Gaming Board for Great Britain v Rogers [1972] 2 All ER 1057, [1973] AC 388, [1972] 3 WLR 279, 136 JP 574, HL, 22 Digest (Reissue) 461, 4600. Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149, [1969] 2 WLR 337, 133 JP 274, CA, Digest (Cont Vol C) 17, 129a. Van Duyn v Home Office (No 2) [1975] 3 All ER 190, [1975] Ch 358, [1975] 2 WLR 760, [1974] ECR 1337, [1975] 1 CMLR 1, ECJ, Digest (Cont Vol D) 317, 4.

Cases cited in the Judgment:

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, [1975] AC 591, HL. Conway v Rimmer [1968] 1 All ER 874, [1968] AC 910; subsequent proceedings [1968] 2 All ER 304, [1968] AC 996, HL. Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1972] 2 All ER 898, [1973] AC 435, HL. Liverpool Taxi Owners' Association [1972] 2 All ER 589; sub nom R v Liverpool Corpn, ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299, CA. Mackey (John Gerard), Re, In the matter of an application by John Gerard Mackey for an Order of Mandamus (1971) 16th December (unreported) QBD (NI), 23 NILQ 113, 331. R v Gaming Board for Great Britain, ex parte Benaim [1970] 2 All ER 528, [1970] 2 QB 417, CA. R v Leman Street Police Station Inspector, ex parte Venicoff, R v Secretary of State for Home Affairs, ex parte Venicoff [1920] 3 KB 72, 89 LJKB 1200, DC. Shaw v Director of Public Prosecutions [1961] 2 All ER 446, [1962] AC 220, HL.

Introduction:

Appeal. This was an appeal by Mark Jeffrey Hosenball, a citizen of the United States of America against the judgment of the Divisional Court of the Queen's Bench Division (Lord Widgery CJ, Eveleigh and Wien LJJ) given on 17th March 1977 dismissing his application for an order of certiorari to remove to that court and quash an order dated 16th February 1977 made by the Secretary of State for the Home Department, pursuant to the powers conferred by s 5(1) of the Immigration Act 1971, that the applicant should be deported from the United Kingdom. The grounds of the appeal were: (i) that the Divisional Court had been wrong in holding that the rules of natural justice did not apply to the instant case, at least, to the extent of requiring the Secretary of State to distinguish between those particulars of the allegations against Mr Hosenball which could be disclosed without revealing the sources of information and those which he thought could not properly be disclosed, and to disclose the former; (ii) that the Divisional Court had been wrong in holding that (a) a general statement by, or on behalf of, the Secretary of State that it was not 'in the interests of national security' to give any particulars was sufficient and (b) that the court was 'bound to accept what the Secretary of State said', since Mr Hosenball had adequately raised a prima facie case to show that it would not be impossible for the Secretary of State to disclose at least some of the particulars of allegations requested by Mr Hosenball's solicitors; (iii) that the Divisional Court had been wrong in holding that the Statement of Immigration Rules for Control after Entry: EEC and other Non-Commonwealth Nationals (HC 82), and the undertaking given to Parliament on 15th June 1971 by the then Secretary of State did not require the Secretary of State to disclose, so far as possible all particulars of the allegations against Mr Hosenball, or at least the nature of the allegations save for those particulars which would entail disclosure of sources of evidence and (iv) that the Divisional Court had been wrong in holding that the Secretary of State had not misdirected himself in law in making the order of deportation against the applicant. The facts are set out in the judgment of Lord Denning MR.

Counsel:

Louis Blom-Cooper QC and Jonathan Caplan for Mr Hosenball. Harry Woolf for the Secretary of State. PANEL: LORD DENNING MR, GEOFFREY LANE AND CUMMING-BRUCE LJJ

Judgment One:

LORD DENNING MR. Mark Hosenball is now only 25. He came here from the United States when he was not quite 18. He came on a scholarship awarded to him by the English Speaking Union. He went for a year to the Leighton Park School at Reading, then for three years to Trinity College, Dublin. Whilst there, he came to England for his vacations, getting work here. On finishing in Dublin, he came over to England and worked here as a journalist. At first he worked for the weekly journal Time Out. We have been told very little about that journal: only that it makes a feature of investigative journalism; that it is not a party to the D Notice system; and that the Special Branch has visited Time Out on one or two occasions. Mr Hosenball tells us that whilst he was with Time Out he did take part in an article called 'The Eavesdroppers', which was about communications monitoring by the government. It was published on 21st May 1976 and has been published elsewhere since. Mr Hosenball tells us that 'The Eavesdroppers' was the last article with which he had been concerned involving any matter which could be said to touch on national security. He left Time Out in July 1976 and was employed by the Evening Standard as a general news reporter, having nothing to do with security matters at all. During all that time, he had permission from the Home Office to be here. His latest permit was due to expire on 11th December 1976. Then four weeks ahead of it, on 15th November, he received a letter from the Home Office. It told him that he could no longer stay because the Secretary of State had decided to deport him. The reason was because it was in the interests of national security. I will read the statement which was enclosed with the letter. It said:

'... The Secretary of State has considered information that Mr. Hosenball has, while resident in the United Kingdom, in consort with others, sought to obtain and has obtained for publication, information harmful to the security of the United Kingdom and that this information has included information prejudicial to the safety of the servants of the Crown... In the light of the foregoing, the Secretary of State has decided that Mr. Hosenball's departure from the United Kingdom would be conductive to the public good as being in the interests of national security and he has accordingly decided to make a deportation order against him...'

That statement is couched in official language; but translated into plain English it means that the Secretary of State believes that Mr Hosenball is a danger to this country. So much so that his presence here is unwelcome and he can no longer be permitted to stay. This belief is founded on confidential information which has been placed before the Home Secretary. It is to the effect that Mr Hosenball is one of a group of people who are trying to obtain information of a very sensitive character about our security arrangements. Their intention is to publish it, or some of it, in a way which will imperil the lives of the men in our secret service. The crucial charge against him is that he has 'information prejudicial to the safety of the servants of the Crown' and is proposing to publish it. If that charge be true, he should certainly be deported. We cannot allow our men's lives to be endangered by foreigners. On receiving the letter and its enclosure, Mr Hosenball at once consulted his lawyers. They asked for further particulars of what was alleged against him. But they did not get any. The Secretary of State himself personally considered the request for further information, but he was of the view that it was not in the interests of national security to add anythin to what he had already said. In order to see that he was fairly treated, Mr Hosenball was given a hearing before a special panel of 'three advisers'. No doubt that panel had before them a good deal of information, and, I expect, evidence from the security service about the activities of Mr Hosenball. That information and evidence was not made available to Mr Hosenball or his lawyer; but at the hearing he was allowed to make representations. His solicitor did so on various matters which seemed to require explanation. The chairman told the solicitor: 'I should think if you concentrate on those areas, it would help us a lot and if we think there is anything else we can tell you.' They told him of nothing else. He called several witnesses of high standing in journalism, who spoke of Mr Hosenball's good character. After the hearing the panel made a report to the Home Secretary, but it was not made available to Mr Hosenball. The Home Secretary gave it all his personal consideration. Then on 16th February 1977 he made a deportation order against Mr Hosenball in these words:

'Whereas I deem it to be conductive to the public good to deport from the United Kingdom Mark Jeffrey HOSENBALL... Now therefore... I by this order require the said Mark Jeffrey HOSENBALL to leave and prohibit him from entering the United Kingdom so long as this order is in force [signed] Merlyn Rees, One of Her Majesty's Principal Secretaries of State.'

A few days later, on 23rd February, Mr Hosenball by his solicitors applied to the High Court for an order of certiorari to quash the deportation order on the ground that it was wrong in law; and that there was a failure to comply with the principles of natural justice in that he was not informed of the matters on which he was to be heard; and that the Home Secretary had misdirected himself. On 17th March 1977 Lord Widgery CJ and his colleagues in the Divisional Court dismissed his application. He now appeals to this court. Now I would like to say at once that if this were a case in which the ordinary rules of natural justice were to be observed, some criticism could be directed on it. For one thing, the Home Secretary himself, and I expect the advisory panel also, had a good deal of confidential information before them of which Mr Hosenball knew nothing and ws told nothing; and which he had no opportunity of correcting or contradicting; or of testing by cross-examination. In addition, he was not given sufficient information of the charges against him so as to be able effectively to deal with them or answer them. All this could be urged as a ground for upsetting any ordinary decision of a court of law or of any tribunal, statutory or domestic: see Kanda v Government of the Federation of Malaya n1. n1 [1962] AC 322 But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed. In the first world war, in R v Halliday n1, Lord Finlay LC said: 'The danger of espionage and of damage by secret agents... had to be guarded against.' In the second world war in Liversidge v Anderson n2 Viscount Maugham said: n1 [1917] AC 260 at 270 n2 [1941] 3 All ER 338 at 344, 345, [1942] AC 206 at 219

'... there may be certain persons against whom no offence is proved nor any charge formulated, but as regards whom it may be expedient to authorise the Secretary of State to make an order for detention.'

That was said in time of war. But times of peace hold their dangers too. Spies, subverters and saboteurs may be mingling amongst us, putting on a most innocent exterior. They may be endangering the lives of the men in our secret service, as Mr Hosenball is said to do. If they are British subjects, we must deal with them here. If they are foreigners, they can be deported. The rules of natural justice have to be modified in regard to foreigners here who prove themselves unwelcome and ought to be deported. If confirmation is needed, it is to be found in the very recent ruling of the European Commission of Human Rights made in the case of Mr Agee, who is running parallel with Mr Hosenball in these matters. Mr Agee invoked art 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms n3 which provides: 'In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing... by an independent and impartial tribunal...' The European Commission held: n3 Rome, 4th November 1950; TS 71 (1953); Cmd 8969. The convention was ratified by the United Kingdom on 8th March 1951

'... that where the public authorities of a State decide to deport an alien on grounds of security, this constitutes an act of state falling within the public sphere and that it does not constitute a determination of his civil rights or obligations within the meaning of art. 6... the State is not required in such cases to grant a hearing...'

So it seems to me that when the national security is at stake even the rules of natural justice may have to be modified to meet the position. I would refer in this regard to the speech of Lord Reid in Rogers v Secretary of State for the Home Department (the Lewes Justices case) n4. n4 [1972] 2 All ER 1057 at 1061, [1973] AC 388 at 402 The ground for deportation here The most important words used by the Home Secretary were that he was deporting Mr Hosenball 'in the interests of national security'. Deportation on this ground has always been treated separately from other grounds of deportation. At one time there was a statutory right of appeal when a decision to deport was taken on security grounds. It was so recommended in 1967 by Sir Roy Wilson's Committee n5, and it was implemented to some extent by the Immigration Appeals Act 1969, s 9. But experience showed that it was unsatisfactory that there should be a statutory right of appeal in such cases. So in the Immigration Act 1971 that statutory right of appeal was abolished. Section 15(3) says: n5 Report of the Committee on Immigration Appeals (1967) Cmnd 3387, para 144

'A person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was that his deportation is conductive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature.'

During the passage of that bill there were some members in the House who wanted there to be some sort of statutory inquiry, but that too was rejected. Instead the Home Secretary in the House of Commons agreed to introduce a procedure of a non-statutory character.It was modelled on a procedure with which we were familiar in the old days, the reg 18B cases n1. It has since been applied in regard to British Crown servants who are alleged to be security risks. n1 Defence (General) Regulations 1939 (SR & O No 927), reg 18 The special procedure I will set out the procedure as described in the assurance given by the then Home Secretary, Mr Maudling n2, to the House of Commons on 15th June 1971: n2 819 H of C Official Report (5th series) col 376

'All these proceedings start with a personal decision by the Home Secretary on national security grounds. The person concerned is notified of the decision and he will be given by the Home Office such particulars of allegations as will not entail disclosure of sources of evidence. At the same time the person will be notified that he can make representations to the three advisers and will be given time to decide whether or not to do so. The advisers will then take account of any representations made by the person concerned. They will allow him to appear before them, if he wishes. He will not be entitled to legal representation, but he may be assisted by a friend to such extent as the advisers sanction. As well as speaking for himself, he may arrange for a third party to testify on his behalf. Neither the sources of evidence nor evidence that might lead to disclosure of sources can be revealed to the person concerned, but the advisers will ensure that the person is able to make his points effectively and the procedure will give him the best possible opportunity to make the points he wishes to bring to their notice... Since the evidence against a person necessarily has to be received in his absence, the advisers in assessing the case will bear in mind that it has not been tested by cross-examination and that the person has not had the opportunity to rebut it... On receiving the advice of advisers the Secretary of State will reconsider his original decision, but the advice given to him will not be revealed.' The Home Secretary n3 went on to give the procedure his blessing:

n3 Ibid cols 377, 392

'I recommend it to the House as the best possible system we can adopt in what is inevitably a difficult case. We have to reconcile the needs of national security with the proper rights of the individual to protect himself. [If this is put into statutory form], it means importing once again into this matter a justiciable issue, whereas the whole basis of my philosophy is that these are decisions of a political and executive character which should be subject to Parliament and not subject to courts, arbitrators, and so on... Whether an individual's presence in this country is a danger to this country is not a legal decision. It is not a justiciable issue or a matter of law; it is a matter of judgment. Judgment should be exercised by the Government, subject to the House of Commons, and not by a tribunal which is not under the control of the House.' Those statements, made in the House of Commons, are reflected in the rules which the Home Secretary afterwards made. To these I will now turn. The Immigration Rules

Under s 3(2) of the Immigration Act 1971 the Secretary of State has power to make rules as to the practice to be followed in the administration of the Act. Those rules were said by Roskill LJ to be delegated legislation. He said it in R v Chief Immigration I think, goes too far. They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in s 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition, the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether the officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law. n1 [1976] 3 All ER 843 at 848, [1976] 1 WLR 979 at 985 There is one of these rules which is particularly prayed in aid here. It is r 42 n2. It says: n2 Statement of Immigration Rules for Control after Entry: EEC and Other Non-Commonwealth Nationals (HC 82, 25th January 1973)

'... Nor is there a right of appeal (except as to the country of destination...) where a deportation order is made on the ground that the Secretary of State deems the person's deportation to be conducive to the public good as being in the interests of national security... But such cases are subject to a non-statutory advisory procedure and the person proposed to be deported on that ground will be informed, so far as possible, of the nature of the allegations against him and will be given the opportunity to appear before the advisers, and to make representations to them, before they tender advice to the Secretary of State.'

That rule seems to me simply to reproduce in a shortened form the statement which the Home Secretary made to the House of Commons. It adds nothing. It subtracts nothing. At any rate, nothing of substance. The remedy in case of breach The question was much discussed before us whether the prerogative writs, such as certiorari, apply in respect of this special procedure which was introduced by the statement in the House of Commons and by the immigration rules. Counsel for Mr Hosenball referred us to R v Criminal Injuries Compensation Board, ex parte Lain n3 where it was held that that board (which deals with the amount of compensation to be paid to victims of crimes of violence) is subject to the writ of certiorari if it has gone wrong in point of law, much in the same way as a statutory tribunal. But the special procedure here is very different. It is not to be enforced by means of a writ of mandamus or certiorari simply because there has been a departure from it. But nevertheless it is subject to the supervision of the court in this way: if the body concerned, whether it be a Minister or advisers, has acted unfairly, then the courts can review their proceedings so as to ensure, as far as may be, that justice is done. But a departure from the procedure or from the rule does not constitute unfairness. An example was given by counsel for the Secretary of State of a deportation order being made against an alien who had gone to ground and disappeared. In such a case this special procedure could not be implemented, but nevertheless a deportation order would be perfectly valid. But if the man was present and the advisers said, 'We are not going to hear any representations', and thus acted unfairly, that would be a ground on which the court might interfere. I need not go into the cases on fairness.They start with Re H K (an infant) n4, approved by this court in Schmidt v Secretary of State for Home Affairs n1, and Ram Chand Birdi v Secretary of State for Home Affairs n2, which was heard on 11th February 1975. n3 [1967] 2 All ER 770, [1967] 2 QB 864 n4 [1967] 1 All ER 226, [1967] 2 QB 617 n1 [1969] 1 All ER 904, [1969] 2 Ch 149 n2 (1975) 119 Sol Jo 322 The Security Service Although the Secretary of State did not say so explicitly it would seem likely that, in coming to his decision whether Mr Hosenball's presence is a danger or not, he would have before him information that had been supplied to him by the Security Service: and that the officers of that service gave evidence before the special panel of three advisers. Counsel for Mr Hosenball guessed as much himself in the course of his observations before us. Little has been written and little is known about the work of this service. I had to consider it in the report n3 which I made in 1963 in relation to the former Secretary of State for War, Mr Profumo. As I there said n4. n3 Lord Denning's Report (1963) Cmnd 2152 n4 (1963) Cmnd 2152, paras 239(3), 240

'The function of the Security Service is to defend the Realm as a whole from dangers which threaten it as a whole, such as espionage on behalf of a foreign Power, or internal organisations subversive of the State. For this purpose it must collect information about individuals and give it to those concerned. But it must not, even at the behest of a Minister or a Government Department, take part in investigating the private lives of individuals except in a matter bearing on the Defence of the Realm as a whole. [I went on to say that] if the Director-General of the Security Service... gets information about a Minister or senior public servant [or, I would now add, a journalist] indicating that he may be a security risk -- he should consult the Home Secretary. The Home Secretary then will have to take the responsibility for further action, that is to say, whether to take steps to eliminate the security risk or to put up with it. If a mistake is made, it is the Home Secretary who will be responsible to Parliament.'

Confidential information The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of the information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information. So the sources must not be disclosed. Not even to the House of Commons. Nor to any tribunal or court of inquiry or body of advisers, statutory or non-statutory, save to the extent that the Home Secretary thinks safe. Great as is the public interest in the freedom of the individual and the doing of justice to him, nevertheless in the last resort it must take second place to the security of the country itself. So much so that arrests have not been made, nor proceedings instituted, for fear that it may give away information which must be kept secret. This is in keeping with all our recent cases about confidential information. When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice. I gave the instances in D v National Society for the Prevention of Cruelty to Children n5. n5 [1976] 2 All ER 993 at 999, 1000, [1976] 2 WLR 124 at 133, 134 The present case Much of what I have said was not disputed by counsel for Mr Hosenball. In his most helpful submission, he recognised that national security must take first place. But he suggested that the Home Secretary had pressed it too far when he refused to give the further particulars of the allegations against Mr Hosenball. In a letter from Mr Hosenball's solicitor of 14th December 1976, he made these requests for further particulars:

'(a) State what information the Secretary of State has considered and the source of such information. (b) State the persons with whom my client is alleged to have been in consort and the occasions on which it is alleged he made such contacts. (c) State the dates and the places where such contacts occurred. (d) State what information harmful to the security of the United Kingdom my client has sought to obtain and has obtained for publication. (e) State which of the information has been published and when and where it has been published. (f) State which of the information is alleged to be prejudicial to the safety of servants of the Crown.'

The Secretary of State, as I have said, declined to give those particulars. He declined to add anything to the short statement enclosed in the first letter. It seems to me, if you go through those requests one by one, even including (e) on which counsel for Mr Hosenball so much relies, it is apparent that if the Secretary of State complied with that request it would be quite possible for a clever person, who was in the know, to track down the source from which the Home Secretary got the information.That might put the source of the information himself in peril. Even if not in peril, that source of information might dry up. Rather than risk anything of the kind, the Home Secretary was quite entitled to say: 'I am sorry but I cannot give you any further information.' Conclusion There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large. They have set up advisory committees to help them, usually with a chairman who has done everything he can to ensure that justice is done. They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state. In this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter. He is answerable to Parliament as to the way in which he did it and not to the courts here. I would dismiss the appeal.

Judgment Two:

GEOFFREY LANE LJ. There are occasions, though they are rare, when what are more generally the rights of an individual must be subordinated to the protection of the realm. When an alien visitor to this country is believed to have used the hospitality extended to him so as to present a danger to security, the Secretary of State has the right and, in many cases, has the duty of ensuring that the alien no longer remains here to threaten our security. It may be that the alien has been in the country for many years. It may be that he has built a career here in this country, and that consequently a deportation order made against him may result in great hardship to him. It may be that he protests that he has done nothing wrong so far as this country's security is concerned. It may be that he protests that he cannot understand why any action of this sort is being taken against him. In ordinary circumstances common fairness, you can call it natural justice if you wish, would demand that he be given particulars of the charges made against him; that he be given the names of the witnesses who are prepared to testify against him and, indeed, probably the nature of the evidence which those witnesses are prepared to give should also be delivered to him. But there are counter-balancing factors. Detection, whether in the realms of ordinary crime or in the realms of national security, is seldom carried out by cold analysis or brilliant deduction. Much more frequently it is done by means of information received. Courts of criminal jurisdiction have for very many years indeed, if not for centuries, given protection from disclosure to sources of information. One can see that in R v Hardy n1 which was cited by Lord Simon of Glaisdale in Rogers v Secretary of State for the Home Department n2. n1 (1794) 24 State Tr 199 n2 [1972] 2 All ER 1057 at 1067, [1973] AC 388 at 407, 408 The reasons for this protection are plain. Once a source of information is disclosed, it will cease thereafter to be a source of information. Once a potential informant thinks that his identity is going to be disclosed if he provides information, he will cease to be an informant. The life of a known informant may be made, to say the least, very unpleasant by those who, for reasons of their own, wish to remain in obscurity. Thus, take away the protection, and you remove the means of detection; and when the security of the country is involved, there may be added difficulties. It may well be that if an alien is told with particularity what it is said he has done, it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available. That, in this case, is the Secretary of State himself. If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information on which to prepare or direct his defence to the various charges which are made against him, and the only way that that could be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses. Counsel for Mr Hosenball lays at least two separate forms of foundation for his argument. First of all the undertaking given by the then Secretary of State, Mr Maudling n3, on 15th June 1971 to the House on the passage of the Immigration Bill, to which Lord Denning MR has already made reference. A pronouncement such as that does not, of course, have any statutory effect. It does not bind the person who made it, the Secretary of State at that time, nor does it bind his successor, but of course no one would expect that the then Secretary of State or his successor would lightly disregard such a pronouncement. The second possible foundation are the rules made by virtue of the Immigration Act 1971 itself, and particularly r 42 of the Immigration Rules n4 which, insofar as it is material, reads in its last sentence as follows: n4 Statement of Immigration Rules for Control after Entry: EEC and Other Non-Commonwealth Nationals (HC 82, 25th January 1973)

'But such cases are subject to a non-statutory advisory procedure and the person proposed to be deported on that ground will be informed, so far as possible, of the nature of the allegations against him and will be given the opportunity to appear before the advisers, and to make representations to them, before they tender advice to the Secretary of State.'

There have been dicta to the effect that these rules have the force of statute.In particular the judgment of Roskill LJ in R v Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi n5 where he said: n5 [1976] 3 All ER 843 at 848, [1976] 1 WLR 979 at 985

'These rules are just as much delegated legislation as any other form of rule-making activity or delegated legislation which is empowered by Act of Parliament.'

I entertain a respectful doubt whether that is the case. These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for the immigration officers at the various ports and airports of the country, who have the everyday task of trying to administer the Immigration Act 1971. Indeed they are, as to large parts, if one reads them, little more than explanatory notes of the Act itself. Some clue is to be found in s 3(2) of the 1971 Act, in the last part thereof, which deals with what is to happen to these regulations after the Secretary of State has laid them before Parliament. Section 3(2) reads as follows:

'If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying... then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in these circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution...'

That means, as I read it, that if Parliament disapproves of the rules they are not thereby abrogated: it merely becomes necessary for the Secretary of State to devise such fresh rules as appear to him to be required in the circumstances. Then, on the other hand, s 19(1)(a)(i) of the 1971 Act reads as follows:

'Subject to sections 13(4) and 16(4) above, and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act... shall allow the appeal if he considers... that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.'

So, so far as an adjudicator is concerned at least, the rules have the force of law. Then, when one turns to s 19(2), it seems that the rules may be departed from with the consent of the applicant himself. We have also been referred by counsel for Mr Hosenball to Van Duyn v Home Office (No 2) n1. That was a reference by Pennycuick V-C to the European Court of Justice for a preliminary ruling; and, in the statement of facts on the matter, which no doubt will be prepared or approved by the court in this country, the following passage occurs n2: n1 [1975] 3 All ER 190, [1975] Ch 358 n2 [1975] 3 All ER 190 at 193, [1975] Ch 358 at 369

'Leave to enter was refused by the immigration officer acting in accordance with the policy of the Government and with r 65 of the relevant immigration rules for control of entry which rules had legislative force.'

One thing can be said with certainty with regard to the rules, and that is that they certainly can be used as a touchstone in order to aid the discovery as to whether the Secretary of State has in all the circumstances acted fairly. Whether the argument in this case is based on Mr Maudling's pronouncement n3, or on r 42 of the Statement of Immigration Rules for Control after Entry n4, or on the ground of fair play, the answer remains the same. As Lord Reid said in Rogers v Secretary of State for the Home Department n5: n4 HC 82, 25th January 1973

'Natural justice requires that the board should act in good faith and that they should so far as possible tell him the gist of any grounds on which they propose to refuse his application so that he may show such grounds to be unfounded in fact. But the board must be trusted to do that; we have been referred to their practice in this matter and I see nothing wrong in it.'

Different principles and strict principles apply where matters of the safety of the realm are at stake. What is fair cannot be decided in a vacuum: it has to be determined against the whole background of any particular case. The advisory panel system is an effort to ensure fairness as far as possible in these difficult circumstances, but in the end it is the Secretary of State who must in those circumstances be trusted to speak the last word. Counsel for Mr Hosenball contends that there is in these circumstances an obligation on the Secretary of State to say specifically, 'The reason why I cannot give you any further particulars is because I must not disclose my sources; and, if I do give further particulars, I am certain to make such disclosure'. That is a narrow ground on which to base his argument, but base it he did on that. In my judgment, the Secretary of State, by his letter of 16th December, although he did not say it in terms, has in fact just said that and no less. That is far from saying that the actions of the Secretary of State can never be examined by the court. One has only to look at R v Governor of Brixton Prison, ex parte Soblen n1 to see that the court is entitled, for example, to enquire whether the Secretary of State is not in reality extraditing an alien under the guise of a deportation. No such question arises here. n1 [1962] 3 All ER 641, [1963] 2 QB 243 I would dismiss the appeal.

Judgment Three:

CUMMING-BRUCE LJ. I agree with all that has fallen from Lord Denning MR and Geoffrey Lane LJ. The first ground of appeal to this court was that the Divisional Court was wrong in holding that the rules of natural justice did not apply so as to require the Secretary of State to distinguish between those particulars of the allegations which could be disclosed without revealing the sources of information and those which he thought could not for that reason be disclosed, and require him to disclose the former. The second ground relied on was also a ground founded on a failure to conform with the rules of natural justice. I listened with mounting admiration to the pyramid of natural justice built by counsel for Mr Hosenball with a brick taken here from a case dealing with the right of a taxi driver to have a licence, here with the right of a person injured by a criminal to have the appropriate amount of money allocated by the Criminal Injuries Compensation Board, and here to a case in which the courts were scrutinising the operations of the Gaming Board who are charged with the responsibility of preventing gaming houses in England from falling under the control of the Mafia, and so on. And I recalled the classic case, Board of Education v Rice n2 (I speak from recollection), where the courts have in many different contexts of domestic circumstances insisted that certain simple rules of fairness are to be complied with by statutory bodies charged with a responsibility which may infringe on the rights of the subject. But at the end of the day I was reminded of the words of Lord Hailsham LC in Pearlberg v Varty (Inspector of Taxes) n3 where he said: n2 [1911] AC 179, [1911-13] All ER Rep 36 n3 [1972] 2 All ER 6 at 11, [1972] 1 WLR 534 at 540

'Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the court on particular statutes should be based in the first instance on a careful, even meticulous, construction of what that statute actually means in the context in which it was passed. It is true, of course, that the courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than the statute affords him.Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and your Lordships' House in particular, have, I think rightly, advanced its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what it requires in individual cases.'

In my view, the field of judicial scrutiny, by reference to the enforcement of the rules of common fairness, is an extremely restricted field in the sphere of the operations necessary to protect the security of the state. There is a certain range of such operations which depend for their efficacy entirely on secrecy, and they are nonetheless important for that reason. I can see no authority pointing to the correctness of the submission made by counsel for Mr Hosenball that the principles of ordinary fairness which have been insisted on by the courts in the field of domestic institutions have any significant bearing on the field of security with which this case is concerned. There are two other grounds relied on by Mr Hosenball. One is founded on a statement made by the Secretary of State for Home Affairs n1 on the floor of the House of Commons to which we have been referred.It was suggested, as I understand it, that such rights as Mr Hosenball might have, having regard to the scrutiny of the 1971 Act, might be enlarged by the statement of the Secretary of State in the House of Commons. I cannot accept as a matter of constitutional law and principle that where the rights of the subject or of a resident have been dealt with in an Act of Parliament, a statement made by a minister in Parliament can have the effect of enlarging those statutory rights. The danger of assenting to such a doctrine is obvious.If a Minister can enlarge the rights of a subject as laid down in an Act of Parliament by a statement on the floor of the House, it is but a short step to say that it is constitutional for a Minister to restrict the rights of a subject by making a statement on the floor of the House. By our constitution, it is Acts of Parliament and not the acts of Ministers, save when authorised by Act of Parliament or under the prerogative, that define the rights of subjects or of residents. n1 819 H of C Official Report (5th Series) col 376 Then counsel for Mr Hosenball submitted, fortified by an observation of Roskill LJ in R v Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi n2, that the rules n3 made under the title 'Statement of Immigration Rules for Control after Entry' were delegated legislation and operated with legislative force. n2 [1976] 3 All ER 843 at 848, [1976] 1 WLR 979 at 985 n3 HC 82, 25th January 1973 The statement of rules came into being pursuant to the obligation of the Secretary of State laid down in the Immigration Act 1971, s 3(2), which imposed on the Secretary of State the statutory duty from time to time to lay before Parliament statements of the rules or of any changes in the rules laid down by him as to the practice to be followed in the administration of that Act regulating entry and stay in the United Kingdom. In the last paragraph of that section it is enacted:

'If a statement laid before either House of Parliament... is disapproved by a resolution of that House... then the Secretary of State [is under a duty to make] such changes or further changes in the rules as appear to him to be required in the circumstances...'

Therefore, although they are entitled 'A Statement of Immigration Rules', they are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; and, for my part, having scrutinised them, and observed that curious amalgam of information and description of executive procedures, they are not in my view in any sense of themselves of legislative force. It is true that, by s 19(2) of the Immigration Act 1971, the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal, which does not arise of course in connection with Mr Hosenball's case. But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before both Houses of Parliament, but because by s 19(2) the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter. So much for the principles of the law that affect the appeal. On the facts I need only say this, that I agree with all that Lord Denning MR and Geoffrey Lane LJ have already stated. The narrow ground on which Mr Hosenball moves this Court of Appeal comes down on analysis to the fact that in the affidavit of Mr Woodfield, an Under-Secretary of State in the Home Office, sworn on behalf of the Secretary of State, it was stated that the Secretary of State personally considered the request for further information to be supplied in the case against Mr Hosenball, but he was of the view that it was not in the interests of national security to add anything to the matters set out in the statement attached to his letter of 15th November 1976 to Mr Hosenball. It was conceded, as I understand it, that if Mr Woodfield, speaking on behalf of the Secretary of State, had used the words that he was of the view that it was not in the interests of national security to add anything to the matters set out lest the information should disclose the sources of the Secretary of State's information, then Mr Hosenball's anxieties, or at any rate his objections to the lawfulness of the Secretary of State's proceedings, would have been set at rest. But in the context of the facts, starting from the statement that the Secretary of State appended to his original deportation order, I am satisfied that the distinction drawn by counsel for Mr Hosenball, though it has an attractive logical foundation, is really a distinction without a difference. The Secretary of State who, under our constitution, is responsible for seeking information about those who visit and stay in our shores and who is responsible for the decision to exclude those who are in his view a danger to the security of the state, has sufficiently explained the reasons for refusing to give further information, and the fact that he has not used exactly the language which appears in r 42 of the rules n1 to which I have referred does not, in my view, found a ground for any legal objection in the way in which he has carried out his duties. n1 Statement of Immigration Rules for Control after Entry: EEC and Other Non-Commonwealth Nationals (HC 82, 25th January 1973) For those reasons I agree that the appeal should be dismissed.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:

Simons, Muirhead & Allan (for the applicant); Treasury Solicitor.