European briefing | Diluting the rights of the defence: how far is too far

Mr Ayadi was first put on the EU "blacklist" as a person suspected of involvement with Al-Qaida, in 2002. He brought an action of annulment which was dismissed by the CFI, but finally succeeded in 2009 before the ECJ. Meanwhile, however, a fresh measure had been adopted, which aimed to cure defects identified by the ECJ with the original measure. Mr Ayadi was again named. Again, he brought an action for annulment. While that action was pending before the CFI, the UN Sanctions Committee decided to remove Mr Ayadi's name from the list, and accordingly he was removed from the relevant EU regulation in October 2011.

The commission argued that this meant that his action for annulment was moot; or, in the language of the CFI's rules of procedure, that the action had become "devoid of purpose". The CFI agreed. It thought that since the relevant regulation had been repealed and there was no proposal to reinstate it, the action should '¨be dismissed.

The ECJ allowed an appeal. It thought that the CFI had been too quick to dismiss the action. There was, it pointed out, a big difference between annulment, which has retrospective effect, and repeal, which is prospective. The measure that Mr Ayadi had been subject to had all sorts of consequences, and above all carried a stigma. Annulment might remove this in a way that repeal did not, and so the action should be allowed '¨to continue.

Meanwhile, the Grand Chamber was considering another case involving the significance of judicial review in the context of allegations of terrorism in Case C-300/11 ZZ (4 June 2013). The applicant was a dual national of France and Algeria, who was refused entry to the UK on grounds of national security. On appeal, SIAC upheld his exclusion, on grounds (as it explained) that there was evidence that satisfied it of his connections with the Armed Islamic Group and terrorist activities in the mid-1990s. But the crucial evidence was not identified; it was kept secret from the applicant and disclosed only to the special advocates who were to represent his interests, but were not permitted to tell him about the evidence.

The Court of Appeal asked the ECJ to consider whether this is compatible with EU law, and in particular with free movement rights and Directive 2004/38. The court has provided a long, but somewhat delphic answer. It is clear, of course, that a person whose rights are restricted must be told the essence of the grounds on which that restriction takes place so that he can mount a challenge. But that is not really the problem. When it comes to the detailed grounds and the evidence, the judgment was much more equivocal. It contemplated that these may be withheld where it is "strictly necessary" to do so. And it did not at least explicitly endorse the sort of "basic minimum" which the European Court of Human Rights took in A v United Kingdom (2009) 49 EHRR 29, when it effectively required such detail about the allegations to be made available as inevitably to reveal the substance of the closed evidence.

These matters are, of course, highly controversial. There are those (such as Lord Hoffmann in SSHD v F [2009] UKHL 29, [2010] 2 AC 269) who consider that it is unjustifiable to insist upon the provision of detailed information about the case against a person, even if it may compromise security. Equally there are those who consider that it is necessary to set up some definite rules setting out an irreducible minimum, in order to avoid slipping by degrees to a point where a person can be subject to action with no real opportunity to participate in any judicial assessment of it.

Although the judgment is not in all respects clear, it does appear fairly certain that the ECJ is neither opposed, in principle, to arrangements such as SIAC, nor inclined to maintain a doctrinaire insistence on any particular system or any particular "irreducible minimum". Despite its lack of transparency, the ECJ's approach seems to be accommodating to concerns about national security. Indeed, it is precisely because it sees the issues pragmatically - as a matter of drawing an appropriate but delicate balance between two important policies which sometimes clash - that the judgment sets out so few waymarks. On the other hand, sympathy for public security has limits; although it is a matter of balance, the ordinary right to know the full case and full evidence is to be restricted only if it is "strictly necessary". The balance, in other words, is to be kept heavily weighted. It will now be for the Court of Appeal to apply the ECJ's guidance as best it can.

In their different ways ZZ and Ayadi both show the need for judicial procedures to adapt to concerns about terrorism, and yet to remain fair. The cases also show that this is not simply a matter of compromising standards for the protection of the public. It may also (as in Ayadi) involve extending judicial review in recognition of the importance of the issues. And it will certainly, as in ZZ, involve careful assessment of the need for any dilution of the rights of the defence, and of the protections that should be put in place to try to compensate.