Procedure for refusing naturalisation while failing to disclose information on ‘national security considerations’ was flawed

Clarke J (nem diss): Refusal of naturalisation - citizenship - application for order that Minister disclose information on which decision was based - 'national security considerations' - whether grant of citizenship was within the unfettered discretion of the Minister - whether national security considerations should be disclosed to applicant - review of procedures - European Union Charter of Fundamental Rights and Freedoms - Iranian national - refugee status granted in 1991 - use of 'intelligence information' - information shared by other states on the basis that it remain confidential.

"The real issue which lies at the heart of these proceedings is as to the extent to which the undoubted difficulties which the State would face in obtaining potentially vital intelligence, either from its own agencies or, perhaps even more importantly in the Irish context, from agencies of friendly foreign powers, can provide a legitimate legal and constitutional justification for the approach taken by the Minister in this case.
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On that basis, I have come to the view that it has not been established that the Minister has impaired the entitlement which Mr. P. would otherwise enjoy to more detailed reasons only to the minimum extent necessary to secure legitimate State interests. It is at least possible to put in place an enhanced process whereby, for example, an independent assessment could be made as to whether any version of the information, or part of it, could be provided in a way which would not affect State interests to the extent that disclosure should not be required."

O'Donnell J (concurring): Claim of privilege - broad discretion on Minister to refuse citizenship -

"Reference to a special advocate procedure invokes by analogy the procedures adopted in other common law countries, most notably the United Kingdom, Canada, and New Zealand, which are now the subject of detailed procedures providing for the appointment of a special advocate, and what are described as closed material hearings. These procedures mean that decision-makers, and sometimes courts, will, in private hearing, consider material and hear evidence which is not provided to the individual or the advocate of his or her choice, but where the individual is represented by a special advocate with security clearance who cannot, however, communicate the substance of the information disclosed to the individual or seek instructions upon it."

"I agree with Hogan J. in the Court of Appeal, and with the Chief Justice in this court, that it does not appear possible for the court to devise a complete procedure, cut from whole cloth, which is capable of being applicable in all of the many different and difficult situations where the issue of disclosure of information arises, and where it is resisted on the grounds of public interest. I do not rule out the possibility that in certain circumstances, ad hoc solutions might be sought. This, after all, is what has occurred in the field of discovery and disclosure, and the somewhat different techniques adopted to permit disclosure of some information while maintaining confidentiality, which are discussed in the judgment of the Chief Justice. Indeed, to some extent, that approach is what is urged in this case."