Open justice pulls back the national security veil

The IPT's first decision in the Apple TCN case

In January, the UK Home Office imposed on Apple a technical capability notice (TCN) ordering the company to provide access to encrypted user data held on iCloud. If you need a catch-up/want to know what this is all about, read my previous post here:

The UK's iCloud backup order explained

Apple has commenced legal proceedings against the Home Office concerning its TCN. It brought its claim before the Investigatory Powers Tribunal (IPT), and the below post gives on overview of this court and its role in regulating UK state surveillance:

How to challenge state surveillance powers in the UK

In this post, I cover the IPT's first decision on the Apple TCN case. In short, the IPT held that the proceedings against the Home Office regarding Apple's TCN should not be completely held in secret.

What was this latest IPT decision about?

This latest decision by the IPT is not about the legalities of the TCN itself. It is more to do with the management of the case.

In particular, it is about "the bare details of the case". This means "the fact or details of the claim, or the identities of the parties to the claim."¹

The Home Office tried to argue that the publication of any of this information would "be damaging to national security."² Therefore, not even the bare details of the case should be published.

Accordingly, on 28 February, the Home Office "sought an order that the bare details of the case should be private, including by them not appearing on the Tribunal's website, until further order of the Tribunal."³ The Tribunal listed a hearing for this order to take place on 14 March 2025, with the only information being publicised being the case number and the name of the judges.

But the Home Office wanted this hearing to also be entirely in secret, and therefore to not list it publicly. It argued that this "was necessary to prevent damage to national security."⁴

But the Tribunal disagreed with the Home Office. It stated that not publishing any details about the hearing regarding whether the main case should be held in secret would have been "a truly extraordinary step" requiring "a correspondingly compelling justification."⁵ It further stated that whilst it was not impossible for there to be circumstances in which not publishing any details about a case may be justified on national security grounds, this case was not one of them:

It was not shown that publicly listing a hearing, without publishing the names of the parties or the nature of the case, would create any real risk of damage to the public interest or prejudice to the interests of national security.⁶

Accordingly, on 10 March, the IPT's website published the hearing to take place on 14 March, "giving the case number and the names of the judges, but not giving the names of the parties."⁷

For this hearing on the 14 March, which is what the IPT's latest decision is about, the UK government relied on a witness statement from the Head of Investigatory Powers Unit, part of the Homeland Security Group within the Home Office. In that statement, it was explained that national security would be damaged if "the fact, substance or parties to [the] proceedings be made public."⁸

What are the relevant rules for this?

In my post providing an overview of the IPT, I covered the rules that enable it to hold different kinds of hearings. This includes the ability to carry out hearings wholly or partly in private.

This ability hinges on the duty imposed on the IPT under Rule 7(1) of the Investigatory Powers Tribunal Rules 2018, which reads:

The Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security...

But in fulfilling this duty, the Tribunal has to balance national security with the principle of open justice. This "fundamental common law constitutional principle...applies to all courts and tribunals exercising the state's judicial power", including the IPT.⁹

Such a principle normally requires the names of parties to a case to be made public. And this principle can only be departed from (e.g., anonymising the names of the parties) "when, and to the extent that, it is established on clear and cogent evidence that it is strictly necessary" to do so.¹⁰

An example of this could be cases concerning national security matters:

The executive is entitled to take precautionary approach when assessing risks to national security. Courts and tribunals must accord particular weight to such assessments made by the executive. Those assessments should usually be accepted, unless they are shown to be irrational or otherwise vitiated by a public law error.¹¹

The IPT's verdict

The central question for the IPT in this case was "whether publication of the bare details of the case would be prejudicial to national security."¹² On this, the Tribunal found that this would not be the case.

While the IPT is not permitted to substitute its view of what is or is not damaging to national security with that of the government's, courts a still "entitled to intervene on rationality grounds if a decision involves a serious logical or methodological error."¹³

Accordingly, the IPT did not believe that "the revelation of the bare details of the case would be damaging to the public interest or prejudicial to national security."¹⁴ The reasoning for this is set out in its private judgment, which of course is not public.¹⁵ The Home Office's attempt to keep proceedings on Apple's TCN secret were therefore rejected.¹⁶

Pulling back the veil of national security

This decision by the IPT is an example of UK court's pulling back what I call the veil of national security:

There are two key elements to the veil of national security:

1. Secrecy

2. Exclusivity

The first key element is about national security matters being protected from public eyes and therefore barred from public discussion. Such secrecy applies to information about national security threats, the methods used to combat them, and anything else that is relevant to these operations.

Secrecy is maintained by the 'neither confirm nor deny' (NCND) policy. This is a principle that the government will not confirm nor deny the accuracy of information related to national security matters if doing so would damage national security.

When invoked, the government will not respond to questions, claims or allegations about its national security work. This policy has been used in Parliamentary debate and in court proceedings.

The second key element is about matters of national security being solely reserved for the government and its agencies. This means that it is not for the courts or the legislature to decide which threats to prioritise and how they should be addressed.

Exclusivity is maintained by the separation of powers. This is a long-standing public law principle that the institutions of the state (the executive, the legislature and the judiciary) should be functionally independent.

This means that none of these institutions should be able to exercise the powers of the other. Only the executive can execute national security policy, only the legislature can pass national security laws, and only the judiciary can provide legal judgments on national security law and policy.

The rationale for secrecy and exclusivity is the operational efficacy of national security. Both elements contribute to this efficacy in different ways.

Secrecy prevents adversaries from learning about the measures used against them by the state and adapting their behaviour accordingly. Exclusivity ensures that national security decisions are made by agencies with the relevant information, resources and expertise.

These ideas were explored in the Zamora Case in 1916. This case concerned whether an order could be made by the government to requisition a neutral ship carrying contraband (copper) during wartime.

It was determined that such an order was illegal. But even in making this judgement, the House of Lords made reference the veil of national security.

On secrecy, it was asserted that matters of national security should not be “made the subject of evidence in a Court of law or otherwise discussed in public.” On exclusivity, it was asserted that “those responsible for the national security must be the sole judges of what the national security requires.”

Justifications have therefore been made for the veil of national security. It ultimately provides agencies like GCHQ and MI5 the opportunity to do their job effectively.

But another consequence of the veil is that it makes it more difficult to determine what national security actually is. It can distort what constitutes a national security threat and how they should be addressed.

This in turn complicates the scrutiny and accountability of government agencies responsible for executing national security operations. It is hard to critique the work of these agencies when their internal workings are largely inaccessible.

This is clearly demonstrated in the GCHQ Case in 1985. This case looked at the decision by the government, made without consultation, prohibiting GCHQ employees from being members of trade unions.

While motivated by the disruptive industrial action that had already taken place at the agency, the House of Lords found the government’s decision would normally be illegal. However, it was ultimately concluded that the decision should be permitted.

The reason for this had to do with national security. Not only was it for the government to balance national security with fairness, but that sometimes government power “must take precedence over those of the individual.”

The government was given the benefit of the doubt that it was in a better position to determine whether trade union membership was a genuine threat to national security. Therefore, if the government says it is such a threat, then it is not for a court to conclude otherwise.

Such a situation can put human rights in jeopardy. How can we know if the infringement of our rights is necessary and proportionate if we lack the opportunity to assess the potentially infringing decision by the state?

Such a position is clearly not tenable. This is therefore why, over time, the veil has had to be pulled back gradually.

What even is national security?

In this IPT decision, the IPT appeared willing to question the logic of the government's assertion that national security would be damaged by publishing details about the case. The exclusivity and secrecy of the national security veil did not protect the government on this occasion. But we await to see what role the veil might play when the IPT considers Apple's TCN itself.

1. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 1.

2. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 1.

3. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 7.

4. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 10.

5. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 10.

6. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 10.

7. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 11.

8. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 21.

9. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 24.

10. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 25.

11. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 28.

12. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 29.

13. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 30.

14. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 32.

15. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 6.

16. Apple v Secretary of State for the Home Department [2025] UKIPTrib 1, para. 43.