Court of Appeal launches offensive against secret justice with three linked judgments

5 May 2010 by Adam Wagner

… but not too blind

Home Office v Tariq [2010] EWCA Civ 462  – Read judgment, Bank Mellat v HM Treasury [2010] EWCA Civ 483 – Read judgment

[Updated 7/5/10]

The Court of Appeal has told the Government three times in 24 hours that it cannot keep evidence secret in civil proceedings. Similar reasoning was applied in three different contexts; the employment tribunal, a case relating to Iranian nuclear proliferation and a claim for damages for foreign torture.

An identically constituted court as in the Al-Rawi and others judgment had already held on the same day that evidence in a high-profile torture compensation claim should not be kept entirely secret.

In two further decisions, the same judges held that the Treasury must give sufficient disclosure to allow a bank accused of involvement in Iranian nuclear proliferation to not just deny but refute the allegations (Bank Mellat v HM Treasury), and that the Home Office must provide the “gist” of material it had wanted to keep secret from an employment tribunal (Home Office v Tariq). The court did not, however, go as far as saying that evidence can never be kept secret in cases involving national security.

All three cases revolve around the controversial “closed material procedure“, which allows certain evidence to be kept from the public and sometimes a defendant, and the use of “special advocates” (SA). As the Court of Appeal said in para 1 of the judgment, these procedures, developed as part of the fight against terrorism, represent “exceptions to the fundamental principle of open justice.” We have posted about the issues surrounding the special advocate system in relation to control orders (read post).

The cases higlight the strong line the courts have taken towards open justice since the AF case in 2009, a criminal matter in which the House of Lords (now the Supreme Court) held that it was a breach of the right to a fair trial under Article 6 to hold someone under a control order without sufficient information about the allegations against him even where disclosure would compromise the country’s national security (read our case comment).

Tariq – secret evidence in employment tribunals

Mr Tariq was a home office immigration officer who was suspended in 2006 due to national security concerns. He is suing the Home Office in the Employment Tribunal.

The questions before the court in this case were, first, whether an Employment Tribunal has the power to order a closed material procedure. This has already been denied to the Government in a claim for civil damages in Al-Rawi. If the answer was yes, then the second issue was whether Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28 applies in this context so as to require the Home Office to provide a gist of the closed material upon which it seeks to rely to the employee and his legal representatives.

In answer to the first question, the court ruled that the EAT could order a closed material procedure, as whilst it is “anomalous” , the system “permits [special advocates] to do their work effectively and independently and subjects them to proper scrutiny“. Lord Justice Maurice Kay continued that the special advocates system did not in and of itself breach the claimant’s Article 6 ECHR rights, and that “if such problems were evident they would be expected to provoke adverse judicial comment but, in my experience, the system, although inherently imperfect, enjoys a high degree of confidence among the judges who deal with cases of this kind on a regular basis” (para 32).

The second question was whether the Home Office had to disclose the “gist” of the case to the claimant.

The Home Office argued that AF was different to the present case, as that had involved control orders and the deprivation of liberty, whereas this involved a claimant seeking to enforce his private right not to be subjected to discrimination. It was argued that as  the context was not one in which the State is seeking to interfere with Mr Tariq’s liberty or anything comparable, and as the authorities do not insist on disclosure in all circumstances, AF simply did not apply.

The court rejected this reasoning, stating at para 50:

“… the present case is not put in a different category by the fact that the Secretary of State is not seeking to subject Mr Tariq to a control order but is simply defending a discrimination claim. Nor is it to the point that the ultimate issue is discrimination rather than the accuracy of the closed material. The fact is that the Home Office is seeking to rely on closed material in its defence. Whilst the Rules permit that, it seems to me that the principle illustrated by AF(No.3) must apply to ensure that fairness to which Mr Tariq is entitled by Article 6 and at common law…. For present purposes, I am satisfied that the judgment of the EAT was correct on this point and that the appeal of the Home Office should be dismissed.

More to come

It is unlikely that the secret evidence sage will end here, as the path is open for the cases to be appealed to the Supreme Court. This seems likely, given reports that the quest for increased openness is giving security services the jitters.

Read more:

• Update 7/5/10 – The Panopticon Information Law Blog comments on the three decisions: “What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security.”
• Update 5/5/10 – The Times commentary on the Binyam Mohamed decision