Rules allowing closed procedure in employment cases do not breach fair trial
13 July 2011
In these appeals the question was whether a claimant in employment tribunal proceedings may be excluded from certain aspects of those proceedings on grounds of national security, without breaching the right to fair trail under Article 6 of the Convention. Mr Tariq had been suspended from his job as immigration officer following the arrest of his brother and cousin for involvement in the suspected transatlantic airline terrorist plot. There was no suggestion that Mr Tariq himself had been involved.
When Mr Tariq commenced proceedings in the Employment Tribunal for unfair dismissal, the Home Office invoked legislation to enable the tribunal to adopt a “closed material procedure” in the interests of national security. The appellant was consequently excluded and was represented by a special advocate appointed under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
When the Court of Appeal heard Mr Tariq’s appeal against this exclusion it declared that Article 6 required him “to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively”. This requirement is known as “gisting”. The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross-appealed against the conclusion that a closed material procedure was permissible.
The Court by a majority of 8-1 allowed the Home Office’s appeal and set aside the declaration made by the Court of Appeal requiring the provision of a “gist”.
Both EU and ECHR law prohibits discrimination on grounds of race and religion. However, in interpreting EU law in this context, courts look to the principles guiding the equivalent prohibition in the ECHR and it is established law that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined. This system was a necessary response and the use of special advocates meant that this measure was proportionate.
The use of the closed material procedure in this case was therefore lawful and not in breach of Article 6.
As for the provision of detailed allegations to the claimant – the “gist”- the Court concluded that whilst Strasbourg has held in the past that this was an absolute requirement under Article 6 where the liberty of the subject is involved, in cases such as the present only the appellant’s livelihood, not the liberty, was involved. His claim would be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to would as far as possible be minimised. Home Office appeal therefore allowed.
A full analysis of this case and a discussion of Lord Kerr’s interesting dissent will follow shortly.