Chapter 7
Administrative decisions

Our approach to reform

7.13Our approach favours consistency but also recognises that different administrative decisions raise their own particular issues when taking account of national security information. If the information is not taken into account, the decision may not be fully informed or based on the best evidence. However, if it is taken into account, the decision is then made on the basis of information that cannot be disclosed to the affected person and cannot be challenged by the affected person in open court. The presence of relevant national security information therefore presents a dilemma.

7.14In some cases, with high stakes and limited time, it is important that the decision-maker be able to take account of relevant national security information (which may be the best available evidence) without delay and without an unduly complicated process. In other cases, there will be less time pressure, and it will be possible to use a process whereby national security information is excluded from consideration by the decision-maker on the basis that available open-source information demonstrates the same facts and the national security information does not need to be relied on.

7.15We understand that the latter approach is what currently happens for many decisions under the Immigration Act. National security information can be taken into account, but generally it is possible for those responsible for undertaking investigations and assembling evidence to rely on open-source information, which is then passed on to the decision-maker. This approach thereby avoids the need to use the specific procedures in the Immigration Act that apply when national security information is provided to decision-makers.

7.16We have considered whether reform should clarify how and when national security information should be taken into account in the initial stage of administrative decision-making. We have reached the view that this should be left open, due to the variety of ways that national security information may be relevant and the importance of enabling decisions to be made on the best available evidence in tight timeframes.

7.17Instead, we have decided that it is in keeping with our terms of reference to focus on the narrower question of how the use of national security information changes things compared with the position if the decision had been made on the basis of other information. We are concerned with how to ensure that those affected by administrative decisions in which national security information is taken into account receive substantive natural justice protections as similar as possible to those they would receive if national security information had not been used. It is not the place of this Report to comment on broader issues of natural justice in administrative law.