Hurdles, Hurdles, and More Hurdles: Strategic Litigation in National Security Cases

ABSTRACT

Civil society organizations are adept and reactive advocates, using a range of strategies to promote their messages and respond to negative outcomes. For instance, even when unsuccessful in bringing legal arguments before the courts, such organizations can still use litigation as a platform for positive legal outcomes. In the national security context, however, things are not as straightforward. This piece analyses three unique ‘hurdles’ civil society organizations face in this context – judicial deference, lack of access to information, and secrecy – meaning their response to unsuccessful litigation becomes even harder. This piece provides an overview of current practice, while remaining optimistic for civil society’s response to the ‘hurdles’; concluding that, while a hard race to win, civil society can still prevail.

KEYWORDS:

• Civil society
• national security
• judicial review
• administrative law
• human rights

1. Introduction

While the oft-cited dichotomy between national security and human rights remains an oversimplification (Macdonald, 2008, p. 95; Macdonald, 2009, pp. 539–540; Smith, 2022), it remains true that measures taken in the name of national security frequently conflict with fundamental human rights (Bonner, 2007). And as governments continue their national security ‘mission creep’ – categorizing more and more of their policies as essential to fulfilling their nation’s interests – the range of possible human rights violations stemming from national security policies only proliferates.

In this context, independent oversight is essential in minimizing the negative consequences of national security laws, policies and strategies. However, although it is evident that civil society plays a key role in the development of the law, for instance by bringing often underrepresented voices into the decision-making process (Bakolias, 2000, pp. 528–530; Charnovitz, 2006) – and indeed there is a conscious strategy broadly within the United Nations (UN), and more specifically within the UN’s counterterrorism infrastructure, to ‘bring civil society to the table’ (Barsh & Khattak, 2002, pp. 23–26) – in practice the national security realm remains the primary, and perhaps sole, competence of the executive within the domestic sphere (Caparini, 2010; Clark, 2011; Kazlauskaitė-Markelienė & Petrauskaitė, 2010). As a result, many civil society organizations, human rights defenders and journalists have to adopt creative advocacy strategies in their attempts to reach their aims of securing the implementation of human rights norms and principles (Becker, 2014). This creativity becomes even more important when the subject-matter of the advocacy involves issues of national importance – no greater is this seen than when it comes to national security.

Non-governmental organizations (NGOs) will often aim to change the law and the behaviour of states, but will generally seek to do so through less confrontational means, such as fact-finding research projects and political advocacy (see Kovarik, 2021; Rappert et al., 2012; Rozzaqi Ginanjar & Zakky Mubarrok, 2020). However, one of the most effective methods civil society organizations use to ensure domestic laws, policies and practices effectively uphold human rights laws is the use of strategic litigation at the domestic, regional or international level. This not only publicises their cause and leads to accountability in the instant case (if the litigation is successful), but could also lead to systemic change, depending on the outcome of the judicial process (Open Society Justice Initiative, 2018). To take the regional human rights courts as a pertinent example, a number of seminal cases have been brought by civil society organizations before the European (Big Brother Watch, 2021; Câmpeanu, 2014; Fischer-Lescano, 2021, pp. 299–305; Nichols Haddad, 2018), Inter-American (Armand-Ugón, 2020; Carvalho & Baker, 2014) and African (Gathii, 2020) human rights systems, and in many other cases, such groups have instead acted as interveners or interested parties, providing both legal and factual expertise. However, regional human rights litigation goes beyond the distinct human rights systems themselves, as can be illustrated with strategic litigation taken by NGOs to the various regional courts in Africa, including before primarily economic or trade-based courts. By contrast, other regional courts offer a more restrictive environment for organizations seeking to enforce or advance human rights obligations, such as the Court of Justice of the European Union (Bechtel, 2020; Hungary, 2020; Mellifera, 2020).

But this is not the full picture, and the ‘success’ of civil society advocacy often extends far beyond the courtroom. As such, Gathii (2020) – and the contributing authors within the cited book – argues that, when engaging with strategic litigation, civil society activists and NGOs in Africa do not require a positive judicial outcome in order to create substantive normative change towards greater human rights protection. Using the example of creative litigation strategies before African regional courts, Gathii and his contributors illustrate that, even when bringing cases with a low chance of success – and in fact even when they are ultimately unsuccessful before such courts – groups can still have tangible impacts on legal developments. This practice has also been recognized worldwide by the Open Society Justice Initiative (OSJI, 2018).

But national security cases are different. This paper will therefore assess how civil society can respond to unsuccessful litigation with reference to cases involving some form of national security in the UK (Donohue, 2011; Levy, 1995; Wolfers, 1952)¹ – noting, of course that Gathii’s argument does not in any case apply to domestic judicial proceedings, which have often been unavailable or inadequate in the cases referred to in that piece (see Nwauche, 2011). This paper concludes that the presence of three additional ‘hurdles’ in national security-related cases severely limits the ability of civil society organizations to either positively develop norms or obtain declarations of a public body’s illegality in the courtroom.² Each individual hurdle is unlikely to be fatal to success (however an organization defines ‘success’), but this paper will argue that combining them makes the task incredibly difficult. Such hurdles can, however, often prove fatal to more subtle advocacy strategies, rendering Gathii’s conceptualization as having limited impact in the national security context.

While the analysis included in this article is based on the author’s own experiences and observations in working with and alongside organizations engaged in strategic legal action, including on issues related to national security, the author recognizes the divergence in each organization’s strategy depending on its aims, mandate, beneficiaries, and other relevant factors. The analysis is therefore primarily an observation, but holds useful discussion points for civil society organizations, observers and government actors that want to promote effective civic space and accountable governance.

2. Civil Society Actors as Persistent and Reactive Litigators

Gathii argues that the regional African courts – not only within the human rights system, but also principally economic and trade courts like the ECOWAS Community Court of Justice – often afford inadequate protection to human rights, and in many cases defer to national courts and institutions through doctrines similar to subsidiarity and the margin of appreciation. Rather than be stifled by an inopportune judicial opportunity to seek greater human rights protection, civil society organizations have acted creatively to nonetheless ensure a degree of substantive and procedural change.

Such practice not only occurs in Africa, but worldwide. For instance, OSJI has likewise concluded that strategic litigation is a ‘process’, whereby an NGO can reach its objectives regardless of the outcome of court proceedings, based on their particular response to the judicial outcome. Similar to the process Gathii notes in the African context, OSJI has also recognized the ability of NGOs to react to court judgments, regardless of their success, in a manner that nonetheless achieves impact (OSJI, 2018, pp. 42–43, 74–91).³

The successful reaction to unsuccessful litigation generally takes two forms: (1) engaging with an unsuccessful judgment and using this as an advocacy platform for generating public pressure for reform; or (2) continuing with an extensive litigation strategy, after the initial unsuccessful litigation effort, that an organization takes until their aims are achieved. Of course, the precise strategy an organization creates will vary depending on a range of factors – including jurisdictional and political matters – but broadly we can fit civil society responses to unsuccessful litigation within these two categories.

Understanding how this analysis applies in the national security context is nuanced. For instance, the determination of what exactly constitutes ‘national security’ is far from clear, with practice since the turn of the century indicating that States are willing to adopt expansive definitions of national security (for instance, including matters such as immigration, environmental protection, and economic security). This paper will not seek to judge the merits of individual definitions of ‘national security’ as reached by States, as for present purposes all that matters is that claims of national security are raised by the executive; as a result of these circumstances, civil society actors are placed at a significant disadvantage in strategic litigation or other advocacy. In fact, diverse and broad interpretations of the concept are inherently related to the issues that this paper seeks to map in the following sections – principally the executive’s quasi-monopoly in matters of national security.

None of the cases referred to in the OSJI report appear to have implicated national security, at least within the State’s arguments, and the same can be said for the cases referred to by authors contributing to Gathii’s edited volume, at least in the context of national security preventing judicial oversight. However, it is worth noting that cases involving the propriety of elections and transitional justice – frequently given as examples in Gathii’s edited volume – could attach the ‘national security’ moniker and therefore force the domestic court to defer to the executive (Catalinac, 2016; Ighodalo, 2012; Rangelov & Teitel, 2014). Of course, it is worth remembering that the cases cited in Gathii are cases at the international level, and therefore raise different considerations when it comes to judicial deference than will be discussed below.

3. The Three ‘Hurdles’ to Effective Rights Protection After Unsuccessful Litigation

This article touches on three main barriers to effective human rights protection in the national security context, following unsuccessful litigation. Some of these strike at the pre-trial stage or during the trial, with impacts that outlast the litigation process. Each one of these may not occur within the same litigation process – and when they do not, they nonetheless impact the organization’s role and prospects of ultimate success – but when multiple co-exist they coalesce to create an almost insurmountable hurdle.

While these hurdles make systemic change difficult, it is by no means impossible. As Carvalho and Baker note, organizations which take strategic litigation on issues of human rights are often staffed by lawyers, and are also adept at navigating the difficult socio-political and legal circumstances which they face (Carvalho and Baker, 2014, pp. 449–450). Civil society organizations operating in this context can still achieve positive institutional outcomes, and this paper does not seek to dissuade groups from advocating using these methods, however this paper argues that it is important to recognize the difficulties in order to effectively navigate the legal hurdles discussed in this section.

3.1. Hurdle 1: (Lack of) Access to Information

The first ‘hurdle’ strikes at the pre-litigation planning stage, whereas the other two occur during the later stages of the strategic litigation cycle, yet all these factors can limit the impact of NGOs and civil society organizations from garnering public support for their messages.

Before instigating a legal claim in the national security realm it is likely that the civil society organization will need to make several freedom of information requests, in order to ensure a concrete evidence base for any legal arguments that it wants to raise, or to determine which legal arguments are most likely to succeed. However, as a multitude of national security or prevention of crime exceptions are likely to apply – and public bodies will not be stingy about claiming they prevent disclosure – the pre-litigation stage is significantly drawn out, even in the most urgent of cases (Goldberg, 1987). It may be argued that the disclosure of evidence as part of the litigation could suffice and that freedom of information requests are therefore unnecessary, however in practice these can be essential in order to understand whether the organization has an actionable claim – it would not make logistical or financial sense to rely on the (somewhat weak) disclosure obligation. UK-based organizations will also be aware of the possibility that a trial will be subject to secrecy (discussed further below), meaning that it will be incapable of reviewing certain evidence as part of that process. At the same time, many organizations begin strategic litigation efforts with the goal of obtaining the disclosure of otherwise secret information – in such circumstances a freedom of information request (including any appeals process) is not a pre-trial hurdle to overcome, but the primary strategic litigation effort itself (Parsons, 2022).

For instance, the Information Tribunal, which adjudicates appeals related to freedom of information requests in the UK, and other UK courts, apply such exemptions to the freedom of information broadly:

• ‘• ‘national security’ means the security of the United Kingdom and its people;

• • the interests of national security are not limited to actions by an individual which are targeted at the UK, its system of government or its people;

• • the protection of democracy and the legal and constitutional systems of the state are part of national security as well as military defence;

• • Action Against a Foreign State may be Capable Indirectly of Affecting the Security of the UK; and

• • reciprocal co-operation between the UK and other states in combating international terrorism is capable of promoting the United Kingdom’s national security’ (Baker, 2007; Information Commissioner’s Office, 2015. See also Rehman, 2001).

This broad definition of ‘national security’ will not be fatal to the role of NGOs in norm development and overseeing government action as such, but will significantly delay the onset of proceedings and, when smaller organizations with limited budgets are considering their strategy (Carvalho & Baker, 2014),⁴ could lead to NGOs and other civil society organizations opting for different and less adversarial advocacy approaches. Although in the UK, the Freedom of Information Act 2000 requires the relevant public body to reply to initial requests ‘promptly’ and otherwise within twenty working days from the date of receipt (s10; see also Information Commissioner’s Office, 2015; Rumbul and Parsons, 2021, pp. 11–14), there are a range of exceptions – most pertinently those relating to security or defence (s24; s26) – which can delay the litigation process, drastically alter its scope, or curtail it completely.

This is a facet of an understandable caution we see when civil society engages decision-makers on issues of national security (de Montbrial, 1988; Kiyomi Serrano & Minami, 2003; McNamara, 2009); in this context, the result is a reluctance to release information with only a peripheral or tangential link to national security, whereas in other circumstances greater flexibility may arise. The broad approach to national security-related limitations to disclosure of information has also been followed by the courts. In Secretary of State for the Home Department v. Rehman, Lord Slynn in the House of Lords argued:

To require the matters in question to be capable of resulting ‘directly’ in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse effect on the United Kingdom for what is done by the individual under inquiry but I do not accept that it has to be direct or immediate. (Rehman, 2001: para. 16)

As noted above, the approach to national security exemptions to freedom of information requests remains broad, and the Information Tribunal and other courts are at pains to recognize that these exemptions apply in a broad range of circumstances. However, the courts will still assess whether the exemptions are valid based on the facts of the given case, meaning that – in the UK at least – the exemptions do not lead to a form of blanket secrecy. Regardless, the protracted nature of appealing a freedom of information request, when authorities do claim these exemptions broadly, means that the time, personnel and legal costs of appealing may act as a barrier for organizations at the pre-litigation stage.

The process the requesting organization will follow after receiving the public body’s response to their freedom of information request will naturally depend on whether the freedom of information request has been accepted or rejected; in the former instance, the litigation may proceed as planned, but in the latter either the planned litigation will be dropped, and other advocacy efforts pursued, or the organization will seek to appeal the refusal to grant the request.⁵ This adds another degree of complexity and length to the process, which simply may not be viable due to resource and other constraints.

If an organization succeeds with its freedom of information request, its litigation may still attract the deference and secrecy, and the associated post-litigation hurdles discussed elsewhere in this paper.

But, if the request is refused, the lack of access to information causes problems for an organization post-litigation, regardless of the way they approach the initial rejection of their freedom of information request. The organization could pursue the following options, each of which may cause it to encounter unique challenges in the national security context:

• Decide against appealing the refusal and proceed with litigation otherwise: A lack of evidence may create difficulties for the organization in establishing their case based on publicly available, or based on the limited nature of disclosed material; the NGO will also encounter many of the procedural bars, such as closed material proceedings, noted below;

• Decide against appealing the refusal and engage in other forms of advocacy: Simply put, there will be a lack of evidence to support the advocacy; although a resistance to disclosure can itself be an advocacy tool (Sabbagh, 2021b), scope for impact is limited;

• Appeal the authority’s refusal and fail: As above, this means that there is no information by which to engage with other advocacy or to support the planned litigation; additionally, there is the issue of delay that these proceedings create, which may cause the organization to flout ‘promptness’ requirements and other limitation periods (Senior Courts Act 1981: s31(6); Civil Procedure Rules: Rules 54.5–54.8; Singh, 2013: paras. 2, 6, 28–36; Knight, 2009; Carney, 2006); or

• Appeal the authority’s refusal and succeed: The primary issue here is the delay that the appeal proceedings cause; the organization will nonetheless likely encounter some of the trial-based barriers discussed below.

Even if the request succeeds, there are additional pre-trial, in-trial and post-trial hurdles which the organization will have to navigate if it wants to achieve its objective. These will be discussed under the broad heading of ‘secret proceedings’ below.

3.2. Hurdle 2: Secret Proceedings

The second ‘hurdle’ follows on from the general lack of access to information discussed in hurdle one, and instead assesses the impact of secrecy at the trial stage, and involves the additional procedural applications that are available in national security cases – including the privacy of trials, strict time limits, closed material proceedings, and others (Singh, 2021). This further infringes the ability of unsuccessful strategic litigation to, in the first instance, illuminate the factual circumstances surrounding human rights abuses (Carvalho and Baker, 2014, pp. 451–452), and to ultimately lead to normative change. Despite the shift towards increased accountability or ‘judicial activism’ that we discuss below, remaining secrecy in the national security context stems from the traditional place governments hold this context as an exception to accountability principles (Woods et al, 2021, pp. 553–554).

In the UK, courts can hold secret proceedings – that is, proceedings in which one party is unaware of the opposing party’s evidence – in several circumstances. The government’s rationale in introducing secret proceedings was that, in some instances, requiring it to disclose its evidence to the other party could prejudice national security. In such circumstances, one party (often the government) will apply for the court to hear certain evidence in secret, meaning that only the adducing party and the judge will be able to review the evidence, leaving the other party in the dark (Justice and Security Act 2013 (JSA), s6). Under the Act, the individual (or organization) and their legal team will be prohibited from viewing or reviewing the government’s evidence and the government’s case as it relates to the secret evidence. As a result, the disadvantaged party is also unable to challenge the government’s evidence or its case on the secret evidence.

These proceedings, termed ‘closed material procedures’, were initially intended solely for tribunals which adjudicate on national security-related matters, including the Investigatory Powers Tribunal and the Special Immigration Appeals Commission. This would preclude non-security-oriented courts and tribunals from using them: in sum, the use of closed material procedures was seen as exceptional. While their use still caused human rights advocates to become concerned about their effect on open justice, their use was limited to circumstances in which the general public perceived them to be necessary in the interests of national security (in essence, the use of investigatory powers by the security services, as well as certain specific immigration decisions which created security-related issues). Yet in 2013, the government decided to extend the circumstances in which it could apply for closed material procedures, so that they could be used in all civil proceedings (Justice and Security Act 2013 (JSA); Belhaj and Boudchar, 2018).⁶ In essence, ‘a court can now in theory order a closed material procedure in any civil case, and in any review or appeal stemming from such a case’ (Graham, 2018).

The UK government has also introduced some safeguards in an attempt to ensure that the legal framework complies with the UK’s international human rights obligations, such as the use of ‘special advocates’ – specialist lawyers that have access to secret evidence and can make representations on behalf of the client, however, are unable to take instructions from the client on this evidence – and requirements for the Secretary of State to report annually on the use of closed material procedures.⁷ Despite this, many commentators hold serious doubts about the legality of the UK’s present regime, including how it has expanded in scope (Allen, 2018; Bank Mellat, 2014; Chamberlain, 2020; Haralambous, 2018). Closed material procedures inherently place one party at a disadvantage, and can place fundamental fair trial and open justice rights at risk. When they are used, closed material procedures contribute to an inequality of arms to the benefit of the government (Ministry of Justice, 2022) and to the detriment of the other party, which could be a civil society organization. Moreover, rather than being used solely to prevent the leaking of national security-related evidence through the courts, in many cases commentators have criticized the government for using closed material procedures as a shield against negative publicity (Tyrie, 2017) – something that a civil society organization may otherwise seek to generate in its post-litigation advocacy.

This is also without considering that, in many cases when a court makes a judgment following closed material procedures, parts of its judgment will also be secret, when they are inextricably linked to the secret evidence. This means that a party may know what the court’s decision is – whether they have won the case or not – but they will not know the reasons why. As a former Conservative Party Member of Parliament stated, ‘[t]his does not sound much like British justice’ (Tyrie, 2017).

The use of closed material proceedings creates an environment of secrecy when it comes to national security proceedings, imposing an additional hurdle for civil society organizations wishing to respond to litigation, whether successful or unsuccessful. Similarly to the hurdles civil society organizations face due to pre-trial secrecy discussed above, without access to information, the organization will be unable to effectively portray its primary message, instead being forced to highlight the government’s secrecy as having negative implications for public accountability and the rule of law – narratives which are generally less persuasive for the general public.

Alongside the aforementioned negative impacts for access to justice, the general secrecy of national security-related proceedings also has practical post-litigation consequences. In cases in which closed material procedures are used and a judgment (or part of a judgment) is secret, even if the case is successful before the courts, the organization will have limited information to support its public messaging. This will limit its ability to engage in effective advocacy following its litigation effort. As a result, the executive will be able to control the political narrative surrounding the case: with a monopoly over relevant evidence and access to the media, civil society organizations are at a clear disadvantage when trying to push their message in this context.⁸ While not an absolute bar to gaining public support for their cause, particularly among sympathetic media outlets, the secrecy of national security proceedings puts the executive at an even greater advantage when it comes to controlling the narrative, without considering the likely greater resources and contacts the government can utilize to its advantage in influencing public thought.

3.3. Hurdle 3: Judicial Deference

The third ‘hurdle’ seen in the realm of national security is the deference towards the executive that courts often engage in when hearing such cases. While this hurdle applies primarily during the court’s assessment of the case on its merits, it can also permeate aspects of procedural decision-making, such as the court’s approach to evidence gathering. As Gathii’s thesis applies regardless of whether strategic litigation is successful, it could be argued that such deference is of minimum impact to an NGO’s normative development work, if it can otherwise utilize its litigation as a catalyst for forcing broader systemic change. However, this paper argues that, if placed in its broader context, judicial deference is an indicator of the difficulties that civil society organizations face both in and outside the courtroom when litigating or advocating on issues of national security. In this section, we analyse UK jurisprudence to indicate the increased difficulties for NGOs working in this context. While the analysis below is limited to UK legal practice, the analysis could equally be applied in other contexts, if considered alongside other jurisdictional and political factors, and particularly the relationship between the courts and the executive.

We must consider two interlinked points here: firstly, the idea of ‘judicial activism’ by which courts have become more willing to adjudicate on issues that would traditionally come solely within the executive’s prerogative; and, secondly – and contrarily – the strong concept of ‘judicial deference’ invoked in national security proceedings which means that, in many circumstances, increased ‘judicial activism’ has little to no effect.

Woods et al describe ‘judicial activism’ as part of a concerted effort to ‘bring national security closer to the normal constitutional control mechanisms of parliament and the courts’ (Woods et al, 2021, pp. 553–557). While this practice appears to have increased over the last few decades, with judges becoming more bold in protecting human rights (for contrasting views, see Dickson, 2015; Wyatt, 2021),⁹ this does not always mean that the courts will generally intrude into all areas of executive decision-making. In fact, in the national security context, such cases usually still generate a form of ‘light touch’ review or a substantial degree of deference.

While less judicial deference in the UK initially correlated with an increase in judicial activism towards the end of the last century, in turn creating a number of notable rights-respecting judgments which promote executive accountability (A, 2004), over the past half-decade legal and political commentators have noticed a regression in this practice. Instead, and particularly following high-profile critique of judges in the media and political debate, these commentators argue that judges have begun to adapt their behaviour and engage in more active deference towards the executive on politically sensitive issues (Rozenberg, 2020). Such an approach appears to correlate with international practice, whereby the judiciary responds to the current political environment in determining how to apply legal rules, and indeed whether it believes it is competent to even hear a case (Alter, 2020; Trapp and Smith, forthcoming).

Perhaps surprisingly given the importance the executive attaches to national security issues, such cases have similarly followed the arc of judicial deference outlined above, and have not always been outside the realm of judicial scrutiny (Davis and de Londras, 2014). This is part of a recognition that the concept of ‘national security’ can be abused to justify a range of oppressive acts and fundamental rights violations, and therefore judicial oversight of executive acts remains a fundamental tenet of the rule of law (Bingham, 2011, pp. 133–159). However, recent practice demonstrates the judiciary’s increasing unwillingness to review executive acts that could be described as within the ‘national security’ realm, instead engaging in a ‘light touch’ review of government action.

One such example of the judiciary’s deference to the executive, by engaging in a form of ‘light touch’ review, can be seen in the Campaign Against the Arms Trade judgment (Campaign Against the Arms Trade, 2019). This case was brought by an NGO (the Campaign Against the Arms Trade) dedicated to ending the international arms trade, which sought to stop the UK government-authorized sale of arms to Saudi Arabia. These arms were, allegedly, then used against Yemeni civilians, in violation of international humanitarian law (Associated Press, 2020; Sabbagh, 2021a; Stone, 2022). The UK Court of Appeal were at pains to stress the deferential stance that it should hold towards the decision taken to authorize arms exports licences, as ‘analogous to national security assessments’ and therefore ‘the approach to assessment [of the evidence and competing interests] is for the Executive … ’ (para. 94). But this deferential approach did not alter the outcome for CAAT, as the Court ultimately concluded that the process for authorizing arms sales was irrational for failure to consider factors such as Saudi Arabia’s compliance with international humanitarian law. In a frustrating twist of fate, following the successful litigation, the Secretary of State for International Trade altered their initial decision-making process, and decided once again to authorize arms export licences to sell arms to Saudi Arabia, which in CAAT’s view demonstrated the Secretary of State’s continued unwillingness to implement rights-respecting decision-making when it comes to arms sales (Campaign Against the Arms Trade, 2021).¹⁰ While the Secretary of State’s ability to continue arms sales to Saudi Arabia despite CAAT’s successful litigation is due to judicial review’s focus on the procedure by which a decision is adopted rather than its substance, the degree of judicial deference on issues of national security remains a cause for concern for civil society actors seeking to generate systemic change through the courts.

But successful litigation in instances of ‘light touch’ review are hard to come by. A pertinent (and somewhat recent) example can be seen in the case of Shamima Begum – the teenager who travelled to an area of Syria controlled by the Islamic State in 2015 – whose appeal to return to the UK to challenge the deprivation of her citizenship reached the Supreme Court (Begum, 2021). In this case the Court deferred to the executive’s analysis of the security threat posed by Begum if she was allowed to return. This is particularly worrying as it seems to suggest that the Home Office can remove an individual’s procedural protections based on its determination of what is a ‘national security’ issue, with extremely limited judicial oversight (St Vincent, 2021). Although the Begum case was not taken directly by an NGO, the approach the Supreme Court took was nonetheless illustrative of the approach taken in national security cases and how this restricts the efficacy of rights-based arguments in practice.

Such a situation is likely to influence decision-making when civil society groups are considering initiating strategic litigation. Although not the sole factor considered as part of this internal analysis, encountering a systemically deferential judiciary could encourage the pursuit of other methodologies. This may not be the case for some of the larger, international human rights organizations with the resources and capacity to follow such processes, but there are many that operate on an already limited budget that cannot afford lengthy and costly litigation.

Indeed, as mentioned by Gathii (2020), the outcome before the courts has proved irrelevant for some NGOs in practice. However, as explained throughout this piece, the high degree of judicial deference we observe in courts adjudicating on issues of national security should not be seen in a vacuum. Instead, this factor interacts with several procedural bars that mesh to prevent broader public awareness and opinion from proliferating, thereby limiting the advocacy impact: ‘hurdles’ one and two.

This additionally has the effect that courts will be reluctant to develop the law themselves (in the case of common law or customary international law) or to pronounce on a progressive interpretation of existing legislation, and will also be less willing to intrude into executive or legislative decision-making on issues of national importance. The multiple implications of judicial deference – regardless of whether this or something more akin to ‘judicial activism’ is the constitutionally correct approach (Bolick, 2019; Dickson, 2015; Kmiec, 2004; Sherry, 2013) – have a tangible impact on both progressive development of the law and on the in-court efficacy of strategic litigation in categorizing an executive act as unlawful.

The impact of judicial deference post-judgment is straightforward. Without a successful judgment to build upon – and with often a lack of information and other supporting evidence for advocacy – the organization will have little room for impact. Although, as Gathii and OSJI indicate, unsuccessful litigation is not always fatal to an organization’s impact, this paper has outlined the additional hurdles in the national security context which coalesce to create a situation where possibility for impact is minimized.

4. Concluding Remarks: A Hard Race to Win

Institutional accountability on issues of national security, particularly relating to counter-terrorism in the UK, remains opaque. As Woods et al describe the landscape:

Overall we see a picture of national security oversight where traditional prerogative exceptionalism has been replaced by a model of statutory exceptionalism that uses indirect or even private approaches to accountability with its reliance on a trusted intermediary (whether in the form of a commissioner’s report or that of the ISC). It entrenches executive control over information flows. Parliamentary reporting requirements are weakened so substantially that their ability to achieve the accountability and oversight for which they were designed must be called into question, particularly in times of crisis. The models have become embedded, and largely taken for granted. (Woods et al, 2021, p. 565)

As a result, NGOs are often obliged to use the courts to reach their strategic objectives, or even to access the information they need to plead their case. This paper did not set out to comprehensively outline the legal and political landscape as it relates to civil society organizations litigating on issues of national security, but instead seeks to engage in some preliminary mapping. This can then be used to stimulate broader discussion among interested actors with the aim of expanding this aspect of civic space. As mechanisms and procedures that are created initially for the national security context often later become ‘normalized’ and utilized in other contexts, the debates this paper raises may also be of use outside its target audience (Nanopoulos, 2015; Woods et al, 2021).

Firstly, this article has demonstrated three legal and practical ‘hurdles’ to civil society organizations and human rights organizations seeking to engage in strategic litigation in the national security context: lack of access to information, secret proceedings, and judicial deference. Each of these individually create significant barriers for civil society groups seeking to hold the executive accountable for violations of human rights laws.

However, greater difficulties arise when these three ‘hurdles’ interact; in doing so to create a situation which can be incredibly difficult for civil society to subvert. The limited availability of evidence and the secret nature of national security practices and eventual court proceedings on the same give the executive almost total rhetorical control over national security issues (Michaelsen, 2006). With the increased normalization of national security measures in other contexts, this is a trend which appears only likely to continue.

Despite these circumstances, civil society organizations operating in this area can and do succeed, even when they are the direct or indirect target of national security measures (Derfoufi & Rights & Security International, 2022; Rutzen, 2015). While this paper merely provides an overview of the means by which civil society responses to unsuccessful litigation can be stymied in the national security space, it hopes to provoke further debate about how to ensure an open an responsive civic space. In the meantime, and to avoid the further reduction of democratic and human rights ideals, pressure needs to be applied in order to ensure that procedural measures taken in the name of national security are not operationalized in other contexts.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘National security’ as a term of legal and political impact can be highly subjective, and States have utilised this to include a broad range of interests (such as environmental and economic protection) under this heading, with definitions varying from State to State.

2 Although the UK example is given, it is argued that the findings may translate to other jurisdictions, mutatis mutandis.

3 The Open Society Justice Initiative notes that: ‘the binary, win-or-lose understanding of a case’s outcomes is both limited and limiting. Strategic human rights litigation is instead multi-dimensional, multi-disciplinary, multi-stakeholder, iterative, and longitudinally segmented’ (at p. 42).

4 Carvalho and Baker refer to the need to balance between short – and long-term advocacy objectives within such organisations. In circumstances where significant delay impacts the judicial process, this may outweigh the benefits of taking strategic litigation in instances where judicial deference is high, and prospects of success are low.

5 Under s17 of the Freedom of Information Act 2000, an authority which refuses its request based on one of the exemptions must provide their reasoning to the applicant. This can form the basis of an appeal. An appeal can be made first to the Information Commissioner’s Office (2015) and then subsequently to the First-Tier Tribunal.

6 Closed material procedures cannot be used in ‘proceedings in a criminal cause or matter’: see section 6(11).

7 At time of writing, the most recent report covers the period from June 2020 to June 2021, and lists six instances in which a government representative applied for closed material proceedings. This includes the subsequent case brought by the Campaign Against the Arms Trade, the organisation whose litigation into the UK’s arms sales is discussed below (Ministry of Justice, 2022).

8 In recent years the UK government has been accused of strategically leaking policy and other documentation to the press to pre-empt scrutiny on major issues, making it difficult for detractors to formulate reasoned disagreements at short notice. This frustration has surfaced principally in parliamentary debates.

9 Dickson outlines four key aspects of judicial activism (with the possibility of overlap): departing from precedent, interpreting legislation in unanticipated ways, defying the government’s social, economic or foreign policies, and developing the common law. Some commentators put this down to the change from the House of Lords to the Supreme Court in 2009, although there is a debate as to whether this is the case.

10 At time of writing, the litigation remains ongoing, following the instigation of a fresh judicial review application by CAAT.