Open justice and closed tribunals: refugee hearings and the Rule of Law

Refugee Appeals Tribunal logo, via their websiteIn a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

(b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential.

A challenge to the unamended section 19 of the 1996 Act was dismissed as moot in Jonathan v Ireland [2002] IEHC 59 (31 May 2002). In Atanasov, Fontu and Opesyitan v Refugee Appeals Tribunal [2007] 4 IR 94, [2007] 1 ILRM 288, [2006] IESC 53 (26 July 2006), MacMenamin J in the High Court held that the section after amendment must be interpreted consistently with the constitutional entitlement to natural justice and fair procedures, and that the failure of the Chairperson of the Tribunal to make available to the applicants relevant tribunal decisions sought by them was breach of this constitutional entitlement. In the Supreme Court, Geoghegan J (Murray CJ, and Denham, McGuinness and Hardiman JJ concurring) dismissed the appeal:

As to what kind of fair procedures the Constitution may require in any given instance will always depend on the particular circumstances and in the case of tribunals as to what constitutes fair practice may greatly differ. … fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and the application of the law in cases like this of a similar category. Yet, if relevant previous decisions are not available to an appellant, he or she has no way of knowing whether there is such consistency. … Previous decisions of the Tribunal may be ones which if applied in the appellant’s case would benefit the appellant but if there is no access he has no knowledge of them and indeed he has no guarantee that the member of the Tribunal has any personal knowledge of the previous decisions made by different colleagues. It does not require an elaborate review of relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair. The unfairness is compounded if, as in this jurisdiction, the presenting officers as advocates against the appellants have full access to the previous decisions. That raises immediately an “equality of arms” issue.

The 2003 legislation is, in my view, enacted against that constitutional backdrop. It assumes rather than creates fair procedures. … [As to section 19(4A), the] first of the two points of significance is that the subsection is still tightly contained within an overall section dealing with one topic, confidentiality. Paragraph (b) of the new subsection reinforces that position. It is clearly assumed in that paragraph that some decisions will be published but there is a statutory requirement imposed that such publishing matter be redacted so as to remove the danger of identifying a particular applicant. … there is an assumption underlying that paragraph that decisions will be published in a redacted form but the Oireachtas is attempting to cut to a minimum any danger of disclosure of identity resulting therefrom. The chairperson is, therefore, being authorised not to publish decisions which, in his or her opinion, are not of legal importance. Although it might not arise directly in this case, I think I should state that it would be my opinion that “legal importance” must not be given too narrow a definition. …

The second point of significance of the new subsection is something which I have already touched upon. Both of the paragraphs in the new subsection clearly imply an assumption on the part of the Oireachtas that it would be normal practice to publish decisions. Putting it another way, it would have been assumed, in my view, that fair procedures would have required access to and reference to previous decisions in an appropriate case in the interests of consistency in the treatment and application of the law. But the jurisprudential basis for the obligation to provide such reasonable access is not the new subsection but the general constitutional requirement of fair procedures. …

What this court is concerned with is the personal rights of the particular applicants before it. Provided each of those applicants is given reasonable access in whatever form the Tribunal considers fit to previous decisions which are being reasonably required for legal relevance within the meaning which I have indicated, that aspect of the duty to provide fair procedures is complied with. [emphasis added]

This is a careful, but quite limited, judgment. It is confined to the position of the applicants and their lawyers; it focuses quite specifically upon the applicants’ interests in fair procedures; but it does not go further and look at other constituencies who might also have a legitimate interest in open justice before such Tribunals. Moreover, it seems to have been subsequently applied quite narrowly by the Tribunal. Hence, Coulter reports that Tribunal decisions are “available to lawyers acting for asylum seekers, but not to journalists or anyone else, and revealing them to others is prohibited”. Section 19(4A) confers a discretion, yet the practice described by Coulter seems like a blanket policy against publication. If so, the policy is contrary to Geoghegan J’s dicta that the section envisages that decisions would normally be published, albeit in a redacted form; and the policy is potentially open to judicial review as unreasonable and ultra vires, if not unconstitutional.

Coulter also points out that the controversial Immigration, Residence and Protection Bill, versions of which were published in 2007, 2008, and 2010, continued to maintain the greatest degree of secrecy possible. In the 2010 version, which lapsed with the dissolution of the Dáil in 2011, but which has since been restored to the Order Paper, section 68 excludes the applications under the Bill from the scope of the Freedom of Information Acts 1997 (also here) and 2003 (also here), and section 87 provides

  1. The Minister and the Tribunal and their respective officers shall take all practicable steps to ensure that the identity of protection applicants is kept confidential
  2. A person shall not, without the consent of that protection applicant, publish in a written publication available to the public or broadcast, or cause to be so published or broadcast, information likely to lead members of the public to identify a person as a protection applicant. …

Moreover, section 107 goes further:

  1. The chairperson shall ensure that a protection applicant or his or her legal representative is provided with reasonable access to any previous decision of the Tribunal under section 96(2).
  2. The access provided under subsection (1) may be—
    (a) in such form, and
    (b) subject to such conditions relating to confidentiality and use, as the chairperson considers reasonable.
  3. The chairperson may at his or her discretion, where he or she considers that a decision of the Tribunal is of legal importance, publish the decision in such manner as he or she considers reasonable.
  4. Nothing in subsections (1) to (3) shall be construed as preventing the chairperson from allowing access, subject to such conditions as the chairperson considers reasonable, by persons, for the purposes of bona fide legal research, to previous decisions of the Tribunal under section 96(2).
  5. This section is without prejudice to section 87.

It covers the same ground as section 19(4A), but it does so in a much more constraining way. Subsection (1) acknowledges the right of applicants to have access to previous decisions, but subsection (2) constrains it, and subsection (3) limits any further publication to a considerably greater extent than does section 19(4A): where the discretion in the 1996 Act as inserted by the 2003 Act is not to publish matters which are not of legal importance, the discretion in the Bill is only to publish matters which are of legal importance. Moreover, any further access may only be for the purposes of “bona fide legal research”. As a legal researcher, I see that as very much a mixed blessing: I’m pleased that such access is afforded; but I’m dismayed that it is limited only to legal research, and does not go further, to other forms of access in the public interest. Finally, subsection (5) refers back to section 87, which imposes the obligation of confidentiality in respect of applicants’ identities.

These provisions are safe from a challenge on the grounds which were successful in Atanasov, as that case concerned applicants’ general constitutional entitlements to fair procedures, and applicants’ rights of access to decisions are recognised in subsection (1). Moreover, even if applicants’ entitlements to fair procedures include a commitment to open justice more generally, this would only be at the suit of applicants and not of members of other constituencies who might also have a legitimate interest in open justice before such Tribunals. Furthermore, Geoghegan J’s view that section 19(4A) of the Act clearly implies an assumption on the part of the Oireachtas that it would be normal practice to publish decisions is displaced by the antithetical approach in section 107 of the Bill, which plainly excludes constituencies other than applicants and their lawyers who might also have an legitimate interest in open justice before such Tribunals. For example, Edobar v Refugee Appeals Tribunal [2005] IESC 15 (16 March 2005) raised concerns about delays in the appeals system, and Nyembo v Refugee Appeals Tribunal [2008] 1 ILRM 289, [2007] IESC 25 (19 June 2007) raised concerns about bias in the appeals system. These are important issues generally, and it is precisely to be able to explore (and either substantiate or refute) such concerns that the principle of open justice is such a necessary element of the rule of law.

If the media wish to have access to refugee Tribunals or at least Tribunal decisions, for the purposes of exploring issues such as delay or bias, and they are precluded from doing so by the practice adopted pursuant to section 19(4A) of the Refugee Act, 1996 (as inserted by section 7 of the Immigration Act, 2003) and section 107 of the Immigration, Residence and Protection Bill, 2010, the question then arises as to whether these statutory provisions are consistent with the general principles of open justice. The common law principles at issue in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), might have an impact against the practice at present adopted pursuant to section 19(4A) of the Act, but they would be of little avail against section 107 of the Bill, as the common law principles find their limit in clear statutory language, and section 107 is very clear.

Similarly, the duty imposed by section 2 of the European Convention on Human Rights Act, 2003 (also here) to interpret statutory provision in a manner compatible with the State’s obligations under the provisions of the European Convention of Human Rights, is simply a principle of interpretation, which cannot prevail against the clear words of the provision being interpreted. Again, this might have an impact against the practice adopted pursuant to section 19(4A) of the Act, but it would be of little avail against section 107 of the Bill. In the latter case, if there are Convention concerns, the only route open to an Irish court is to make a declaration of incompatibility (but the legislature has steadfastly ignored such declarations so far).

For these reasons, by far the strongest arguments against the limitations of the principle of public justice in section 19(4A) of the Act and section 107 of the Bill derive from the Constitution. Article 34.1 provides that justice shall be administered in public. The first question, of course, is whether this obligation applies to Tribunals. If they stand for nothing else, the Edobar, Atanasov and Nyembo cases stand for the proposition that the refuguee Tribunals are subject to the provisions of the constitution; Toulson LJ in Guardian v Westminster Magistrates held that “the requirements of open justice apply to all tribunals exercising the judicial power of the state” ([70]); and it is clear that the refugee Tribunals do indeed administer justice (in the sense that they fulfill the four criteria in McDonald v Bord na gCon [1965] IR 217, Goodman International v Hamilton [1992] 2 IR 542, and Murphy v Flood [2010] IESC 21 (21 April 2010)). In the US, the Courts have held that the principle of open justice applies to immigration hearings, but have divided on whether it is infringed by closed hearings in terrorism cases. But even if a refugee Tribunal does not administer justice in the sense required by Article 34.1, so that it is like a Tribunal established pursuant to the Tribunals of Enquiry (Evidence) Act, 1921, even in that case, as Hamilton CJ in Murphy v Flood (No 2) [2002] 2 IR 298 [2000] IESC 45 (26 January 2000) and Denham J in Bailey v Flood [2000] IESC 11 (14 April 2000) both observed, it of the essence of such Inquiries that they be held in public.

If the principles of open justice can apply to a refugee Tribunal, the next question is whether the concerns of such principles are property engaged. In Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf), the Supreme Court held that the blanket exclusion of the press from a criminal trial infringed Article 34.1. For example, Hamilton CJ held ([35]):

Justice is best served in an open court where the judicial process can be scrutinised. In a democratic society, justice must only be done but be seen to be done. Only in this way, can respect for the rule of law and public confidence in the administration of justice, so essential to the workings of a democratic state, be maintained.

Similarly, Keane J held ([162]):

Justice must be administered in public, not in order to satisfy the merely purient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. … The most benign climate for the growth of corruption and abuse of powers … is one of secrecy.

In Independent Newspapers v Anderson [2006] 3 IR 341, [2006] IEHC 62 (15 February 2006), applying Murphy, Clarke J quashed an order made by the District Justice precluding the publication of the name of the accused. Courts might request discretion in the reporting of a case, but – without statutory authority – they cannot require it (MD v Clinical Director of St Brendan’s Hospital [2008] 1 IR 632, [2007] IESC 37 (27 July 2007) (Hardiman J), blogged here).

The public has an interest in ensuring that justice is not only done but also is seen to be done. Justice may be blind, but the public are not, and they should not lightly have blindness thrust upon them. Moreover, the great principle of open justice is at the heart of the rule of law, it is one of the foundations of modern media speech rights, and scrutiny of the administration of justice is central to the justification of the watchdog role of the media. If constituencies other than applicants and their lawyers who might also have an legitimate interest in open justice before refugee Tribunals do not have any right of access to court decisions, let alone any right to attend such hearings, then the concerns in Article 34.1 are plainly engaged.

Many of the authorities involve restrictions upon open justice which did not have statutory or constitutional justification. This was the case in Murphy, and it was also the case in the subsequent De Gortari v Smithwick [1999] 4 IR 223, [2000] 1 ILRM 463, [1999] IESC 51 (25 June 1999). Here, the Supreme Court applied Murphy and held that proceedings before the District Court for the taking of evidence in this country for use in criminal proceedings in another country (pursuant to section 51 of the Criminal Justice Act, 1994 (also here)) should be held in public, notwithstanding that the equivalent proceedings in the other country would be held in camera, as none of the “special and limited cases … prescribed by law” envisaged by Article 34.1 in which justice could be administered otherwise than in public applied, and no conflicting constitutional requirement to which Article 34.1 had to yield arose on the facts. Similarly, in the absence of statutory authority or constitutional requirement, the Courts cannot permit a party to conduct litigation anonymously (Roe v The Blood Transfusion Service Board [1996] 3 IR 67 (Laffoy J); Re Ansbacher (Cayman) Limited [2002] 2 IR 517, [2002] IEHC 27 (24 April 2002); Doe v The Revenue Commissioners [2008] 3 IR 328, [2008] 2 ILRM 114, [2008] IEHC 5 (18 January 2008); McKeogh v Doe (High Court, unreported, 22 January 2012, Peart J)).

The situation here is different, as the restrictions upon open justice arise on foot of statutory provisions (section 19(4A) of the Act and section 107 of the Bill). In In re R [1989] IR 126, [1989] ILRM 757 (doc| (pdf), the restriction was imposed on foot of section 205(7) of the Companies Act, 1963 (also here). The Supreme Court unanimously held that the mere fact that there was a statutory basis for the restriction was not enough to justify the restriction, it was also necessary to go further and demonstrate that a public hearing would obstruct impede the doing of justice as between the parties. Walsh J (Griffin and Hederman J J concurring) required it to be shown that a public hearing would fall short of the doing of justice, and he emphasised that the administration of justice in public, pursuant to Article 34.1, reflects a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public:

The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members ofthe general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in thecases or that they should have had any business in the courts. Justice is administered in public on behalf of all the inhabitants of the State.

Similarly, Finlay CJ (Hamilton P concurring) held that one of the requirements essential to the administration of justice was that it be in public unless that requirement, by itself, operated to deny justice in the particular case. Hence, the mere fact that there was a statutory basis for the restriction was not enough to justify the restriction. It was also necessary to go further and demonstrate that a public hearing would, by itself, so impede the doing of justice as between the parties, that it was necessary and property for the the trial judge, in the exercise of the discretion in s205(7), to order that the proceedings be heard in camera.

However, the Court divided on the application of the principle to the facts. Walsh J for the majority directed that the proceedings should be heard in public, whereas Finlay CJ for the minority was prepared to accept certain restrictions in the circumstances of the case. The principles in In re R were applied in Irish Press v Ingersoll, [1994] 1 IR 176, [1993] ILRM 747, where Finlay CJ for a unanimous Supreme Court held that the parties had not discharged the “admittedly heavy” onus of proof to displace the principle of open justice. By analogy with the judgments in In re R, in the case of section 19(4A) of the Act and section 107 of the Bill, where there is no discretion but effectively an all-but blanket restriction, it would seem to be necessary to demonstrate that all publicity would impede the doing of justice as between the parties before refugee Tribunals, and that the blanket restriction is therefore necessary and proper.

On the basis of the of analysis which has emerged since Heaney v Ireland [1994] 3 IR 593 and Murphy v Independent Radio and Television Commission [1999] 1 IR 26, [1998] 2 ILRM 360, a statutory restriction upon a constitutional right must pursue a legitimate governmental aim, and be proportionate to that aim, and the usual test of such proportionality is whether the restriction is necessary for the relevant legitimate aim. To put the the judgments in In re R in those terms, the references by Walsh J and Finlay CJ to the doing of justice as between the parties establishes the legitimate governmental aim, and Finlay CJ’s requirement that the ban be necessary and proper to meet that aim establishes the requirement that the ban be proportionate. Moreover, this is entirely consistent with the text of Article 34.1 itself, which envisages that such statutory restrictions are permissible only in “special and limited cases”.

Hence, section 19(4A) of the Act and section 107 of the Bill, which are restrictions upon the constitutional right to open justice in Article 34.1, must pursue a legitimate governmental aim, and be necessary to achieve that aim. Beyond the necessity either to do justice as between the parties identified in In re R or to yield to a conflicting constitutional requirement identified in Murphy and De Gortari, there are many other such potential legitimate aims in refugee Tribunal cases, such as the confidentiality of the parties (if that is not an aspect of the necessity to do justice as between the parties), or occasionally national security (if that is not a conflicting constitutional requirement), so it would not be difficult for the state to establish a legitimate aim. It would, however, be much more to difficult to establish that an all-but blanket bans in sections 19(4A) of the Act and section 107 of the Bill – as opposed to the discretion envisaged in section 205(7) of the Companies Act, 1963 at issue in In re R, or the similar discretion in section 45 of the Courts (Supplemental Provisions) Act, 1961 (also here) – are proportionate, in the sense of being necessary to achieve the relevant legitimate aim. There are many ways to meet such aims, not least by the kind of case-sensitive discretion envisaged by section 45 of the 1961 Act or 205(7) of the 1963 Act, which would allow the aim to be met in cases where it is necessary to do so, but otherwise allow the principle of open justice to be respected and upheld. This was an important aspect of Walsh J’s judgment on the latter section in In re R. Even then, Walsh J held that the exercise of the section 205(7) discretion went too far, and it may be that the particularly wide discretion afforded by section 45 will one day be tested against the open justice principle. The same may also be true of the blanket policy adopted pursuant to section 19(4A) of the Act. It is very difficult to see how such a policy or the blanket statutory exclusion in section 107 of the Bill amount to the “special and limited” exceptions to open justice permitted by Article 34.1.

Of course, before striking down section 19(4A) of the Act and section 107 of the Bill for these kinds of reasons, the Courts would seek to give them a constitutional interpretation. As Walsh J held in McDonald v Bord na gCon (No 2) [1965] IR 217 and East Donegal Co-operative v Attorney General [1970] IR 317, it must be presumed that the Oireachtas intended a constitutional interpretation of an impugned statutory provision. Hence, if a statutory provision is capable of a constitutional interpretation, it must be given that interpretation. It is only when there is no interpretation reasonably open which is not repugnant to the Constitution that the provision should be struck down as unconstitutional. But this is a principle of interpretation; a statutory provision which is clear and unambiguous cannot be given an opposite meaning; nor can matters be pressed to the point where the interpetation would result in the substitution of the legislative provision by another provision with a different context. Hence, deft interpretation might just save aspects either of section 19(4A) of the Act, by reading it as Geoghegan J did in Atanasov to provide for a case-sensitive discretion, but that would have the effect of striking down the present blanket policy. However, it is very hard to see how any deft interpretation could save section 107 of the Bill.

In any event, the analysis here suggests that the secretive operation of the refugee Tribunal system raises real constitutional concerns from the perspective of open justice and the rule of law. Since the Immigration, Residence and Protection Bill, 2010 has been restored to the Order Paper, the Oireachtas will have the chance to re-consider section 107. If it does not, the section could be referred to the Supreme Court by the President. If he does not, a challenge by the media to the section [a cross between Irish Times, Atanasov and Guardian] is not unlikely in an appropriately high profile case or issue. If so, the success of the challenge cannot be ruled out. As Bentham put it,

Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.

It is an open and shut case. We should demand nothing less of the refugee Tribunals.

Update: The restored Immigration, Residence and Protection Bill 2010 lapsed with the dissolution of the Dáil and Seanad in 2016. By then, it had been overtaken by the International Protection Act 2015. Section 87 of the 2010 Bill survives as section 26 of the 2015 Act; but there is no equivalent of section 107 of the 2010 Bill in the 2015 Act.