The case of R v Secretary of State of the Home Department, ex parte the Kingdom of Belgium is perhaps the final UK round of the Pinochet saga before the senator returns to Chile, too unwell to stand trial in Spain, Belgium, Switzerland, France, or the UK, in response to allegations of responsibility for torture and enforced disappearances.
The Kingdom of Belgium was seeking the assistance of the UK courts to compel the Home Secretary to disclose Pinochet's medical reports he commissioned. It was perhaps inevitable that there would be concern expressed by a requesting state that an invitation to make representations in the case was meaningless unless it could see the medical report which formed the only basis for the Home Secretary's intended decision.
The case called for the presentation of arguments ranging across international law and principles of comity, and domestic law principles of fairness.
It is in this area where further significance can be found. When states disagree, a resolution is usually achieved at a diplomatic level.
But in this case, the Home Secretary accepted that a duty of fairness was owed by the UK government to the Kingdom of Belgium, and that the content of that duty could be determined by national rather than international courts. The recognition of the existence of such a domestic duty could have profound consequences for the resolution of later disputes, and not just in the area of extradition.
The case has further relevance in that there was a ringing endorsement by the Divisional Courts of two central principles of administrative law. Firstly, what is or is not a fair procedure is a matter of decision for the courts and not a matter of discretion for the decision-maker.
Secondly, considerable caution should be exercised when a decision-maker withholds a document on the basis that a consultee's views would not make any difference.
The fact that the conclusions of the medical report were almost instantly made public should not detract from the significance of the decision and the importance of the principles of fairness and transparency in the decision-making process.
