JUDGMENT
Home Office (Appellant) v Tariq (Respondent)
Home Office (Respondent) v Tariq (Appellant)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Clarke
Lord Dyson
JUDGMENT GIVEN ON
13 July 2011
Heard on 26 and 27 January 2011
Appellant Respondent
James Eadie QC Robin Allen QC
Catherine Callaghan Paul Troop
(Instructed by Treasury
Solicitors)
(Instructed by Russell
Jones & Walker Solicitors)
Appellant Respondent
Robin Allen QC James Eadie QC
Paul Troop Catherine Callaghan
(Instructed by Russell
Jones & Walker
Solicitors)
(Instructed by Treasury
Solicitors)
Special Advocate Interveners (JUSTICE and
Liberty)
Judith Farbey QC John Howell QC
Naina Patel
(Instructed by Special
Advocates Support Office)
(Instructed by Herbert
Smith LLP)
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LORD MANCE
Introduction
1. This appeal concerns the permissibility and in particular compatibility with
European Union law and Human Rights Convention rights, of a procedure
(conveniently described as a “closed material procedure”) whereby an applicant
and his representatives may be excluded from certain aspects of employment
tribunal proceedings on grounds of national security, and a special advocate may
represent his interests so far as possible in relation to the aspects closed to him and
his representatives.
2. In the relevant employment tribunal proceedings, the appellant, Mr Kashif
Tariq, complains that his security clearance as an immigration officer was
withdrawn in circumstances involving direct or indirect discrimination on grounds
of race and/or religion, and that this was contrary to the Race Relations Act 1976
and the Employment Equality (Religion or Belief) Regulations 2003 (SI
2003/1660). The Home Office’s case is that there was no such discrimination, that
the decisions taken in relation to Mr Tariq were taken for the purposes of
safeguarding national security, and that the order for a closed material procedure
made by the Employment Tribunal (on the Home Office’s application) on 15
February 2008 was made justifiably and for the same protective purposes.
3. Mr Tariq’s challenge to the Employment Tribunal’s order for a closed
material procedure was dismissed by the Employment Appeal Tribunal on 16
October 2009, UKEAT 168/09, [2010] ICR 223 and the Court of Appeal on 4 May
2010 [2010] EWCA Civ 462, [2010] ICR 1034, but it was declared (by the
Employment Appeal Tribunal’s order dated 24 November 2009, upheld in the
Court of Appeal) that article 6 of the European Convention on Human Rights
“requires [Mr Tariq] 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” (a requirement which can conveniently
be described as “gisting”), even if this put the Home Office “in the invidious
position of having to make difficult decisions about disclosure and whether or how
a claim is to be defended”: [2010] ICR 1034, para 50, per Maurice Kay LJ. The
Home Office appeals to the Supreme Court against the latter conclusion, while Mr
Tariq cross-appeals against the conclusion that a closed material procedure was
permissible.
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The factual background in more detail
4. Mr Tariq started employment with the Home Office as an immigration
officer on 21 April 2003, having received the necessary security clearance on 18
February 2003. On 19 August 2006 he was suspended from duty on basic pay,
while consideration was given to the withdrawal of his security clearance, and on
20 December 2006 his clearance was withdrawn. His internal appeal against this
decision was dismissed on 9 August 2007, and his further appeal to the Security
Vetting Appeals Panel (“SVAP”) was unsuccessful in January 2011.
5. The background to the Home Office’s decisions to suspend and withdraw
Mr Tariq’s security clearance consists in the arrest of his brother and cousin on 10
August 2006 during a major counter-terrorism investigation into a suspected plot
to mount a terrorist attack on transatlantic flights. Mr Tariq’s brother was
subsequently released without charge. Mr Tariq’s cousin, Tanvir Hussain, was
convicted on 8 September 2008 of conspiracy to murder, having previously also
pleaded guilty to two counts of conspiracy to cause explosions and to commit a
public nuisance. He is now serving a sentence of life imprisonment. Inquiries were
made at the time of the arrests to establish whether or not Mr Tariq was involved
in any way with the plot or could be affected by it. No information suggested that
Mr Tariq had himself been involved in any terrorism plot, but the Home Office (in
“grounds of resistance” served in the Employment Tribunal proceedings on 6
August 2007 and amplified on 20 December 2007) states that it was concerned in
August 2006 “that [Mr Tariq] could be vulnerable to an approach to determine if
terrorist suspects had been flagged to the authorities or to smuggle prohibited items
airside” and that its decision to withdraw security clearance in December 2006 was
“based on [his] close association with individuals suspected of involvement in
plans to mount terrorist attacks” and on its view that association with such
individuals might make him “vulnerable to attempts to exert undue influence on
[him] to abuse his position”.
6. Mr Tariq commenced the employment tribunal proceedings claiming direct
or indirect discrimination on grounds of race and/or religion on 15 March 2007. He
stated at the outset that he had been advised that his suspension and the withdrawal
of his security clearance were because of his perceived association with certain
relatives or associates of relatives suspected of association with terrorist activities
and the risk of their attempting to exert influence on him to abuse his position. He
denied any such association or risk. On 10 July 2007 he provided what he said
were (considering, he said, the “extremely limited information as to the grounds
for his treatment” to that date given) the best further particulars possible to give
pending disclosure by the Home Office. These particulars alleged, inter alia, that
the Home Office had relied upon stereotypical assumptions about him and/or
Muslims and/or individuals of Pakistani origin such as susceptibility to undue
influence, coercion or “brainwashing” and had indirectly discriminatory security
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policies, procedures and methods of investigation. The Home Office in its grounds
of resistance denied this and maintains, as stated, that it acted throughout to protect
national security.
The legislation
7. The Race Relations Act 1976 provides:
“1 Racial discrimination
(1) A person discriminates against another in any circumstances
relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he
treats or would treat other persons; …
(lA) A person also discriminates against another if, in any
circumstances relevant for the purposes of any provision referred to
in subsection (lB), he applies to that other a provision, criterion or
practice which he applies or would apply equally to persons not of
the same race or ethnic or national origins as that other, but-
(a) which puts or would put persons of the same race or ethnic or
national origins as that other at a particular disadvantage when
compared with other persons,
(b) which puts or would put that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a
legitimate aim.
….
42 Acts safeguarding national security
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Nothing in Parts II to IV shall render unlawful an act done for the
purpose of safeguarding national security if the doing of the act was
justified by that purpose.”
The Race Relations Act 1976 is the means by which the United Kingdom gives
effect to its obligations under Council Directive 2000/43/EC of 29 June 2000 (“the
Race Directive”) implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin.
8. On 27 November 2000 Council Directive 2000/78/EC (“the Employment
Equality Directive”) established a general framework for equal treatment in
employment and occupation. This led to the making, under section 2 of the
European Communities Act 1972, of the Employment Equality (Religion or
Belief) Regulations 2003 (“the Employment Equality Regulations”), prohibiting
discrimination on grounds of religion or belief and providing:
“3.—(1) For the purposes of these Regulations, a person (‘A’)
discriminates against another person (‘B’) if—
(a) on grounds of religion or belief, A treats B less favourably than
he treats or would treat other persons; or
(b) A applies to B a provision, criterion or practice which he applies
or would apply equally to persons not of the same religion or belief
as B, but—
(i) which puts or would put persons of the same
religion or belief as B at a particular disadvantage
when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means
of achieving a legitimate aim.
….
Exception for national security
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24. Nothing in Part II or III shall render unlawful an act done for the
purpose of safeguarding national security, if the doing of the act was
justified by that purpose.”
The issues regarding closed material procedure in more detail
9. Employment Tribunals are established under the Employment Tribunals
Act 1996. Section 7 entitles the Secretary of State to make “by regulations
(‘employment tribunal procedure regulations’) …. such provision as appears to
him to be necessary or expedient with respect to proceedings before employment
tribunals”. Section 10, which I set out in the annex to this judgment, specifically
authorises the making in the interests of national security of regulations providing
for a closed material procedure, either by direction of a minister or by order of the
employment tribunal or judge, and for the appointment by the Attorney General in
that context of a special advocate.
10. The Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004 (SI 2004/1861) contain in Schedules 1 and 2 provisions made
under sections 7 and 10 of the Act. Schedule 1, headed the Employment Tribunals
Rules of Procedure (“the ET Procedure Rules”), contains rule 54, set out in the
annex, providing specifically for a closed material procedure where a minister so
directs (rule 54(1)) or where the tribunal or employment judge concludes that such
a procedure is appropriate and so orders (rule 54(2)). Schedule 2, headed the
Employment Tribunals (National Security) Rules of Procedure (“the ET National
Security Rules”), contains rules 8 and 10, also set out in the annex, providing for
special advocates and reasons in national security proceedings. Regulation 16
provides that the rules in Schedule 1 apply to employment tribunal proceedings
generally, but that such rules shall be modified in accordance with Schedule 2
wherever any power conferred on the minister, the tribunal or an employment
judge by rule 54 of Schedule 1 is exercised. Regulation 2 of the 2004 Regulations
contains definitions, again set out in the annex.
Mr Tariq’s cross-appeal – (a) general
11. The power to give directions conferred on the minister by rule 54(1) has not
been exercised in this case. The Supreme Court was told that it has never been
exercised in any case. The probable reasons are not difficult to discern, bearing in
mind the scope for challenge both by judicial review and, more fundamentally,
under the Human Rights Act 1998 or, Mr Robin Allen QC also submits for Mr
Tariq, European Union law. While the conferral of the power is expressly
authorised by the 1996 Act, it is hard to see how it could be compatible with article
6 of the European Convention on Human Rights for a minister to have power to
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make such a direction to a judicial tribunal. Instead of giving any direction, the
minister made an application to the tribunal, asking it to order a closed material
procedure with a special advocate under the discretionary power conferred by rule
54(2). On 15 February 2008, the tribunal held that it was expedient in the interest
of national security to make orders under rule 54 that the whole of the proceedings
be in private, and directed that Mr Tariq and his representative should be excluded
from part of the proceedings when closed evidence and/or documents were being
considered, that the Tribunal would consider both open and closed documents and
that the Home Office would make available the appropriate closed material to any
special advocate appointed. It further stated that the terms so ordered would be
reviewed at a later case management discussion. At a case management discussion
held on 30 May 2008, in the presence of representatives of the parties and of Ms J
Farbey of counsel nominated by the Attorney General to act as special advocate,
the judge ordered that her role as special advocate should take effect and that she
should proceed in discussions with Mr Tariq.
12. Meanwhile, reasons for the tribunal’s decision on 15 February 2008 were
outstanding. The minister, to whom the tribunal was required by rule 10 of the ET
National Security Rules to submit such reasons in the first instance, directed that
one paragraph be abridged and another omitted. As a result, an edited version,
identifying the positions of the amendment and abridgement, was initially issued to
Mr Tariq and his representatives on 15 October 2008. However, on 9 December
2008 the full reasons were released. One may speculate that this resulted from
submissions made by the special advocate. The paragraphs amended and omitted
do not, on their face, seem likely to impact on national security. This course of
events offers therefore a cautionary message, but, quite possibly also, an indication
of at least one purpose which a special advocate may serve. In the upshot, there is
not now any ministerial order in effect under rule 10. Whatever objections may be
made to a rule giving the executive power to direct the judiciary with regard to
reasons do not therefore arise for consideration on this appeal. This appeal
concerns an exercise by the Tribunal of its power under rule 54(2) of the ET
Procedure Rules, read with rule 8 of the ET National Security Rules.
(b) The European Union Directives
13. On behalf of Mr Tariq, Mr Allen submits that rule 54(2) and rule 8 are
contrary to European Union law and/or the European Human Rights Convention.
These rules were made pursuant to the express statutory authority to make such
rules conferred by section 10 of the Employment Tribunals Act 1996. Mr Allen’s
first submission is that they are, none the less, in conflict with European legal
principles governing discrimination, contained in the European Treaties and in the
Race and Employment Equality Directives, to which the 1996 Act, the Race
Relations Act 1976 and the Employment Equality Regulations must all be read, at
least as far as possible, as being subject.
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14. Mr Allen notes in this connection a contrast between the two Directives.
The Employment Equality Directive makes express reference to national security,
providing in article 2(5):
“5. This Directive shall be without prejudice to measures laid down
by national law which, in a democratic society, are necessary for
public security, for the maintenance of public order and the
prevention of criminal offences, for the protection of health and for
the protection of the rights and freedoms of others.”
There is no equivalent provision in the Race Directive. Mr Allen suggests that this
may be because the Race Directive does not preclude discrimination on grounds of
nationality: article 3(2). Mr Allen further notes that neither Directive makes
express provision for closed hearings, and that the Court of Justice has on more
than one occasion made clear that the European Treaties contain no general power
for states to derogate from European law and the rights it confers on grounds of
public safety or national defence, outside specific situations identified in Treaty
articles, none of which applies here: Case 222/84 Johnston v Chief Constable of
the Royal Ulster Constabulary [1987] QB 129; Case C-337/05 Commission of the
European Communities v Italian Republic [2008] ECR I-2173.
15. None of these points is, in my view, relevant in the present context. I agree
with the reasoning and conclusions of Maurice Kay LJ in paras 12 to 22 of his
judgment in the Court of Appeal: [2010] ICR 1034. The authorities cited by Mr
Allen deal with derogation from principles of substantive law, here the rights not
to be discriminated against conferred by the Directives. The legitimacy of closed
hearings and of the use of a special advocate are matters of procedural law.
Procedure is primarily a matter for national law. It is, however, a basic principle of
European Union law that national law should provide effective legal protection, by
establishing a system of legal remedies and procedures which ensure respect for
the relevant right: Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599;
Case C-432/05 Unibet (London) Ltd v Justitie-Kanslern [2007] ECR I-2271. In
that respect, European Union law directs attention primarily to principles
established under articles 5 and 6 of the European Convention on Human Rights as
a guide to what constitutes effective legal protection.
16. Mr Allen points out that the Directives both contain provisions (article 7(1)
of the Race Directive and article 9 of the Employment Equality Directive),
whereby:
“Member states shall ensure that judicial and/or administrative
procedures, including where they deem it appropriate conciliation
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procedures, for the enforcement of obligations under this Directive
are available to all persons who consider themselves wronged by
failure to apply the principle of equal treatment to them, even after
the relationship in which the discrimination is alleged to have
occurred has ended.”
Further, by articles 8 and 10 respectively of these Directives:
“Member states shall take such measures as are necessary, in
accordance with their national judicial systems, to ensure that, when
persons who consider themselves wronged because the principle of
equal treatment has not been applied to them establish, before a court
or other competent authority, facts from which it may be presumed
that there has been direct or indirect discrimination, it shall be for the
respondent to prove that there has been no breach of the principle of
equal treatment.”
Again, and as this wording contemplates, it is for each national judicial system to
ensure an effective system of legal procedures enabling a claimant to establish
facts from which it may be presumed that there has been direct or indirect
discrimination. In the present case, Mr Allen has not suggested that Mr Tariq has
not been able to do this.
17. Mr Allen also submits that Mr Tariq could lose his claim by reason of
section 42 of the Race Relations Act 1976 and/or regulation 24 of the Employment
Equality Regulations on a basis which, by reason of the closed material procedure,
would not be disclosed. Section 42 and regulation 24 are dealing with substantive
law. If they were read and applied as excusing what would otherwise be unlawful
discrimination, they might therefore be open to challenge under the principle of
European Union law identified in para 14 above. But the present case is far from
involving any such issue. First, the issue could only arise from a substantive
decision, and the Tribunal is a long way from reaching such a decision. Second, it
is far from clear that section 42 and regulation 24 are to be read as entitling a
tribunal or court to excuse what would otherwise be unjustified discrimination on
grounds of national security. The question would arise: if it would involve
unjustified discrimination, how could “the doing of the act” be justified for the
purpose of safeguarding national security? Third, the Home Office’s dominant aim
in the present proceedings is to show that there was no discrimination at all on any
prohibited ground, but a rational and proportionate decision taken in the public
interest. If the Employment Tribunal were at some future stage to find that there
was discrimination on a prohibited ground, but that the effect of section 42 and/or
regulation 24 was that such discrimination could none the less be regarded as
justified as being for the purpose of safeguarding national security, the Tribunal
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would be obliged to identify this basis of decision, however generally, in open
reasons, to enable its legitimacy under European Union law to be challenged.
There is no reason to assume that the Tribunal, assisted as it would also be by a
special advocate, would fail to do this.
(c) Effective legal protection
18. The question is therefore whether the closed material procedure authorised
by United Kingdom law provides effective legal protection, by establishing a
system of legal remedies and procedures to ensure respect for the relevant rights
conferred by the Race Relations Act and the Employment Equality Regulations in
implementation of the United Kingdom’s obligations under the two Directives. Mr
Allen relies upon the decisions of the Court of Justice in Joined Cases C-402/05 P
and C-415/05 P Kadi v Council of the European Union and the General Court in
Case T-85/09 Kadi v Commission of the European Union (Council of the
European Union intervening). These two cases concerned the validity of the
European Union’s own measures, and the two European Courts were charged not
merely with ascertaining and interpreting the relevant European legal principles
applicable under the Treaties, but also with applying these to the particular
measures and circumstances before them.
19. In the former case [2009] AC 1225, the Court of Justice addressed Council
Regulation 881/2002 which aimed to mirror within Europe a similar asset-freezing
regime to that mandated by Security Council Resolutions for all member states of
the United Nations. The Regulation, in its Annex I, simply listed as persons whose
assets were to be frozen persons whose names appeared on a list drawn up by the
Security Council’s Sanctions Committee, and no opportunity was given before or
after its passing to such persons to mount any legal challenge to such listing at
either the Security Council or the European level. The Court of Justice accepted
that:
“342 ….. with regard to a Community measure intended to give
effect to a resolution adopted by the Security Council in connection
with the fight against terrorism, overriding considerations to do with
safety or the conduct of the international relations of the Community
and of its Member States may militate against the communication of
certain matters to the persons concerned and, therefore, against their
being heard on those matters.”
It went on:
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“343 However, that does not mean, with regard to the principle of
effective judicial protection, that restrictive measures such as those
imposed by the contested regulation escape all review by the
Community judicature once it has been claimed that the act laying
them down concerns national security and terrorism.
344 In such a case, it is none the less the task of the Community
judicature to apply, in the course of the judicial review it carries out,
techniques which accommodate, on the one hand, legitimate security
concerns about the nature and sources of information taken into
account in the adoption of the act concerned and, on the other, the
need to accord the individual a sufficient measure of procedural
justice (see, to that effect, the judgment of the European Court of
Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413,
para 131).”
20. The Regulation was annulled in respect of Mr Kadi and Al Barakaat (a
Swedish foundation) because there had been no procedure for communicating any
evidence or for any hearing of persons listed, so that such persons’ rights of
defence and to an effective legal remedy were infringed. But the Court postponed
the annulment for up to three months from 3 September 2008.
21. The second Kadi case [2011] 1 CMLR 697 was a sequel. After the first
case, the Commission sought and obtained from the Sanctions Committee a
summary of its reasons for listing Mr Kadi, communicated that to him and
received his comments on it on 10 November 2008. On 28 November 2008 the
Commission by Commission Regulation (EC) No 1190/2008, made pursuant to a
power in Regulation 881/2002 to amend Annex I to that Regulation, recited this
course of events and purported on that basis to amend Annex I to reinsert Mr Kadi
and Al Barakaat. Mr Kadi again successfully challenged this. The General Court
held that his
“rights of defence had been ‘observed’ only in the most formal and
superficial sense, as the Commission in actual fact considered itself
strictly bound by the Sanctions Committee’s findings and therefore
at no time envisaged calling those findings into question in the light
of the applicant’s observations” (para 171).
The General Court went on to say that the Commission, notwithstanding recitals in
its Regulation, “failed to take due account of the applicant’s comments” (para 172)
and that
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“the procedure followed by the Commission, in response to the
applicant’s request, did not grant him even the most minimal access
to the evidence against him. In actual fact, the applicant was refused
such access despite his express request, whilst no balance was struck
between his interests, on the one hand, and the need to protect the
confidential nature of the information in question, on the other (see,
in that regard, the judgment of the Court of Justice in Kadi, paras
342 to 344)” (para 173).
The General Court noted that this conclusion was consistent with the reasoning on
the European Court of Human Rights in A v United Kingdom [2009] 49 EHRR 625
(para 176).
22. Earlier in its judgment, at paras 146-147, the General Court said this about
national security issues, with reference to its previous judgment in Case T-228/02
Organisation des Modjahedines du Peuple d’Iran v Council of the European
Union [2006] ECR II-4665 (“OMPI”):
“146 The General Court also noted in that regard, at para 156 of
OMPI, that, although the European Court of Human Rights
recognises that the use of confidential information may be necessary
when national security is at stake, that does not mean, in that court’s
view, that national authorities are free from any review by the
national courts simply because they state that the case concerns
national security and terrorism (see the judgment of the European
Court of Human Rights in Chahal v United Kingdom, para 131, and
case law cited, and its judgment in Őcalan v Turkey (2003) 37
EHRR 238, para 106 and case law cited).
147 The General Court added, at para 158 of OMPI, that it was not
necessary for it to rule, in the action before it, on the separate
question as to whether the applicant and/or its lawyers could be
provided with the evidence and information alleged to be
confidential, or whether they had to be provided only to the Court, in
accordance with a procedure which remained to be defined so as to
safeguard the public interests at issue whilst affording the party
concerned a sufficient degree of judicial protection”.
23. The question identified by the General Court in para 147 did not arise for
decision in either of the two Kadi cases. It is, however, clear from both Kadi cases
that the Court of Justice will look for guidance in the jurisprudence of the
European Court of Human Rights when deciding whether effective legal protection
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exists, and how any balance should be struck when a question arises whether civil
procedures should be varied to reflect concerns relating to national security. A
national court, faced with an issue of effective legal protection or, putting the same
point in different terms, access to effective procedural justice, can be confident that
both European courts, Luxembourg and Strasbourg, will have the same values and
will expect and accept similar procedures. Article 6(2) of the Treaty on the
European Union (“The Union shall respect fundamental rights, as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950 and as they result from the
constitutional traditions common to the Member States, as general principles of
Community law”) and the Charter of Fundamental Rights already point strongly in
this direction. Assuming that the European Union will in due course formally
subscribe to the European Convention on Human Rights, as contemplated by the
Treaty amendments introduced under the Treaty of Lisbon, the expectation will
receive still further reinforcement.
24. In the present case, the Home Office applied for and obtained the Tribunal’s
order for a closed material procedure in order to be able to defend itself against Mr
Tariq’s claim that the removal of his security clearance involved unlawful
discrimination on grounds of race or religion. The case concerns a different
subject-matter from that of both Kadi cases, where freezing orders were in issue.
The effect of freezing orders (made under United Kingdom legislation directly
implementing the Security Council’s Resolutions) was examined by the Supreme
Court in A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2
AC 534. Persons subject to such orders became effectively prisoners of the
state and there was a devastating effect on them and their families: para 60. A
v United Kingdom, to which the General Court in Kadi referred, also involved a
different subject-matter to the present, concerning, as it did, the detention of
foreign nationals suspected of terrorist involvement.
25. In A v United Kingdom 49 EHRR 695 the European Court of Human
Rights said that:
“216 The Court takes as its starting point that, as the national courts
found and it has accepted, during the period of the applicants’
detention the activities and aims of the Al’Qaeda network had given
rise to a ‘public emergency threatening the life of the nation’. It must
therefore be borne in mind that at the relevant time there was
considered to be an urgent need to protect the population of the
United Kingdom from terrorist attack and, although the United
Kingdom did not derogate from article 5(4), a strong public interest
in obtaining information about Al’Qaeda and its associates and in
maintaining the secrecy of the sources of such information (see also,
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in this connection, Fox, Campbell and Hartley (1991) 13 EHRR 157,
para 39).
217 Balanced against these important public interests, however, was
the applicants’ right under article 5(4) to procedural
fairness. Although the Court has found that, with the exception of the
second and fourth applicants, the applicants’ detention did not fall
within any of the categories listed in sub-paragraphs (a) to (f) of
article 5(1), it considers that the case law relating to judicial control
over detention on remand is relevant, since in such cases also the
reasonableness of the suspicion against the detained person is a sine
qua non (see para 197 above). Moreover, in the circumstances of the
present case, and in view of the dramatic impact of the lengthy – and
what appeared at that time to be indefinite – deprivation of liberty on
the applicants’ fundamental rights, article 5(4) must import
substantially the same fair trial guarantees as article 6(1) in its
criminal aspect (Garcia Alva v Germany (2003) 37 EHRR 335, para
39, and see also see Chahal, cited above, paras 130-131).
218 Against this background, it was essential that as much
information about the allegations and evidence against each
applicant was disclosed as was possible without compromising
national security or the safety of others. Where full disclosure was
not possible, article 5(4) required that the difficulties this caused
were counterbalanced in such a way that each applicant still had the
possibility effectively to challenge the allegations against him.
219 The Court considers that SIAC, which was a fully independent
court (see para 84 above) and which could examine all the relevant
evidence, both closed and open, was best placed to ensure that no
material was unnecessarily withheld from the detainee. In this
connection, the special advocate could provide an important,
additional safeguard through questioning the state’s witnesses on the
need for secrecy and through making submissions to the judge
regarding the case for additional disclosure. On the material before
it, the Court has no basis to find that excessive and unjustified
secrecy was employed in respect of any of the applicants’ appeals or
that there were not compelling reasons for the lack of disclosure in
each case.
220 The Court further considers that the special advocate could
perform an important role in counterbalancing the lack of full
disclosure and the lack of a full, open, adversarial hearing by testing
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the evidence and putting arguments on behalf of the detainee during
the closed hearings. However, the special advocate could not
perform this function in any useful way unless the detainee was
provided with sufficient information about the allegations against
him to enable him to give effective instructions to the special
advocate. While this question must be decided on a case-by-case
basis, the Court observes generally that, where the evidence was to a
large extent disclosed and the open material played the predominant
role in the determination, it could not be said that the applicant was
denied an opportunity effectively to challenge the reasonableness of
the Secretary of State’s belief and suspicions about him. In other
cases, even where all or most of the underlying evidence remained
undisclosed, if the allegations contained in the open material were
sufficiently specific, it should have been possible for the applicant to
provide his representatives and the special advocate with information
with which to refute them, if such information existed, without his
having to know the detail or sources of the evidence which formed
the basis of the allegations. An example would be the allegation
made against several of the applicants that they had attended a
terrorist training camp at a stated location between stated dates;
given the precise nature of the allegation, it would have been
possible for the applicant to provide the special advocate with
exonerating evidence, for example of an alibi or of an alternative
explanation for his presence there, sufficient to permit the advocate
effectively to challenge the allegation. Where, however, the open
material consisted purely of general assertions and SIAC’s decision
to uphold the certification and maintain the detention was based
solely or to a decisive degree on closed material, the procedural
requirements of article 5(4) would not be satisfied.”
26. In Secretary of State for the Home Department v AF (No 3) [2009] UKHL
28; [2010] 2 AC 269, the House of Lords applied the reasoning in para 220 of A v
United Kingdom when concluding that a closed material procedure involving a
special advocate could be legitimate in the context of the imposition of a control
order on a suspected terrorist, so long as the case was not based solely or to a
decisive extent on closed material.
27. Mr Allen submits that the fundamental nature of equality rights makes it
just as critical that Mr Tariq should receive the fullest procedural rights in this case
as it was for Mr Kadi or A or AF to have such rights. However, the reasoning in
para 217 of the European Court of Human Rights’ judgment in A v United
Kingdom emphasises the context of that decision, the liberty of the individual.
Detention, control orders and freezing orders impinge directly on personal freedom
and liberty in a way to which Mr Tariq cannot be said to be exposed. In R(AHK) v
Page 16
Secretary of State for the Home Department (Practice Note) [2009] EWCA Civ
287; [2009] 1 WLR 2049, a claim for judicial review of the refusal of an
application for British citizenship, the Court of Appeal distinguished A v United
Kingdom on the ground that it was focusing on detention. In my opinion, it was
justified in making this distinction. An applicant for British citizenship has, of
course, an important interest in the appropriate outcome of his or her application.
Mr Tariq also has an important interest in not being discriminated against which is
entitled to appropriate protection; and this is so although success in establishing
discrimination would be measured in damages, rather than by way of restoration of
his security clearance (now definitively withdrawn) or of his position as an
immigration officer. But the balancing exercise called for in para 217 of the
European Court’s judgment in A v United Kingdom depends on the nature and
weight of the circumstances on each side, and cases where the state is seeking to
impose on the individual actual or virtual imprisonment are in a different category
to the present, where an individual is seeking to pursue a civil claim for
discrimination against the state which is seeking to defend itself.
28. That the outcome of the balancing exercise may differ with the
circumstances is confirmed by three decisions of the European Commission and
Court of Human Rights: Leander v Sweden (1987) 9 EHRR 433, Esbester v United
Kingdom (1993) 18 EHRR CD72 and Kennedy v United Kingdom (Application No
26839/05) (unreported) 18 May 2010. In Leander, the applicant had been refused
permanent employment as museum technician with the Naval Museum, which was
adjacent to the Karlskrona Naval Base in which the Museum had storage rooms
and other objects to which he would need access. The refusal was on account of
secret information, contained in an annex compiled by the police, which was
alleged to make him a security risk and to which he was refused access. He
claimed that there had been breaches of, inter alia, articles 8 and 13 of the
Convention. The Court did not accept this.
29. Article 8 provides that everyone has the right to respect for his private life,
and that “there shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety” or other
specified interests. As to article 8, the Court held that, although there was adverse
interference with Mr Leander’s private life through the consequences for his
access to certain sensitive posts (para 59) and although he was refused any
possibility of challenging the correctness of the information concerning him (para
61), the system for collecting and using the secret information contained a number
of internal safeguards (para 62) and it could not be concluded that the interference
involved in the non-communication of the information to Mr Leander was “not
‘necessary in a democratic society in the interests of national security’, as it is the
very absence of such communication which, at least partly, ensures the efficacy of
the personnel control procedure” (para 66).
Page 17
30. Article 13 provides that “everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national
authority”. As to article 13, the Court in Leander held by a majority (4 to 3) that
“an effective remedy under article 13 must mean a remedy that is as effective as
can be, having regard to the restricted scope for recourse inherent in any system of
secret surveillance for the protection of national security” (para 84), and that, even
if the procedure of complaint to the Government (which Mr Leander had followed
and which had led to the Cabinet rejecting his complaint) were not considered
sufficient, the aggregate of that and the other remedies of complaint to the Swedish
Parliamentary Ombudsman and Chancellor of Justice (which he could also have
pursued, although their views would only have been advisory) satisfied the
conditions of article 13 (para 84).
31. In Esbester 18 EHRR CD72 the Commission was again concerned with a
refusal to employ, in this case as an administrative officer with the Central Office
of Information (“COI”). The COI having offered to employ Mr Esbester “subject
to the satisfactory completion of our inquiries ….”, gave as its reasons for refusal
simply that “having completed our inquiries …. we are unable to offer you an
appointment”. Mr Esbester claimed infringement of articles 8 and 13, maintaining
that it was likely that the intelligence services had in the course of negative vetting
procedures obtained and relied upon information about his private life, which he
had had no opportunity to refute. He also alleged that there was inadequate legal
regulation regarding the gathering of such information, and that the Security
Service Tribunal responsible for investigating complaints gave inadequate
protection and was prevented from giving reasons for its decisions. The
Commission accepted, following Leander, that security vetting based on
information about a person’s private life constitutes interference within article 8,
and it accepted, following Klass v Federal Republic of Germany (1978) 2 EHRR
214 and Malone v United Kingdom (1985) 7 EHRR 14 that the existence in the
United Kingdom of a system for secret surveillance for vetting and the
circumstances giving rise to the refusal to employ Mr Esbester gave rise to an
inference that such interference had taken place. But it rejected Mr Esbester’s
complaints as manifestly unfounded.
32. In finding the United Kingdom’s system to be “in accordance with the law”,
the Commission noted that the Court had held in Leander that “the requirement of
foreseeability in the special context of employment ‘vetting’ in sectors affecting
national security cannot be the same as in many other fields”. In finding that the
system was “necessary in a democratic society”, the Commission said, again with
reference to Leander, that regard “must also be had in this context to the margin of
appreciation of the respondent state which in the area of assessing the requirements
of and means of pursuing interests of national security has been held by the Court
to be wide”. In considering whether there existed adequate and effective
guarantees against abuse, as required by the Court’s decision in Klass, the
Page 18
Commission noted that the term “national security” was not amenable to
exhaustive definition, and that, as regards the lack of reasons for the decisions of
the Tribunal, the Court in Klass, when considering a similar problem, had “found
that the state could legitimately fear that the efficacy of surveillance systems might
be jeopardised if information is divulged to the person concerned”. The
Commission concluded its discussion of article 8 by saying that
“In the absence of any evidence or indication that the system is not
functioning as required by domestic law, the Commission finds that
the framework of safeguards achieves a compromise between the
requirements of defending democratic society and the rights of the
individual which is compatible with the provisions of the
Convention. Consequently it concludes that the interference in the
present case was necessary in a democratic society in the interests of
national security.”
As to article 13, the Commission held that the complaint of lack of an effective
remedy failed in the absence of any arguable claim for breach of article 8.
33. In Kennedy v United Kingdom decided by its Fourth Section on 18 May
2010, the Court was concerned with a claim that there had been breaches of
articles 6 (the right to a fair trial in the determination of civil rights and
obligations), 8 and 13 in circumstances where the claimant’s requests to MI5 and
GCHQ under the Data Protection Act 1998 to discover whether information about
him was being processed had been refused on the grounds of national security.
Complaints about such refusals to the Investigatory Powers Tribunal (“IPT”)
chaired by Lord Justice Mummery were examined in private. They concluded with
the IPT simply notifying Mr Kennedy that no determination had been made in his
favour in respect of his complaints. This “meant either that there had been no
interception or that any interception which took place was lawful” (para 20). As to
article 8, the Court held that the domestic law, practice and safeguards relating to
surveillance satisfied the conditions of that article. It referred to, inter alia, Leander
v Sweden as establishing that the requirement that the consequences of the
domestic law must be foreseeable, before any interference could be said to be “in
accordance with the law” under article 8(2), “cannot be the same in the context of
interception of communications as in many other fields” (paras 151-152).
34. As to article 6, the Court in Kennedy found it unnecessary to decide whether
this article applies to proceedings concerning a decision to put someone under
surveillance, because it concluded that, assuming it does, the IPT’s rules of
procedure complied with the requirements of article 6(1) (para 179). The parties’
respective cases appear from the following paragraphs of the Court’s judgment:
Page 19
“181. The applicant submitted that even where national security was
at stake, a domestic court could not infringe the fair hearing principle
in a blanket and uncritical manner. He argued that less restrictive
measures were available to achieve the aim pursued, including
arrangements to protect witnesses’ identities, disclosure of
documents with redactions approved by the IPT, provision of a
summary of particularly sensitive material under the supervision of
the IPT and appointment of special advocates to whom disclosure of
sensitive material could be made. He referred to a recent report on
secret evidence published in June 2009 by the non-governmental
organisation, JUSTICE, which called for the strengthening of
disclosure procedures and increased transparency in court
proceedings.
182. The Government emphasised that even where article 6(1)
applied to a field falling within the traditional sphere of public law,
this did not in itself determine how the various guarantees of article 6
should be applied to such disputes (citing Vilho Eskelinen v Finland
(2007) 45 EHRR 993, para 64). The obligation to read the
Convention as a whole meant that the scope of the article 6
guarantees in such a case should be in harmony with the Court’s
approach to judicial control under article 8. The Government argued
that the overarching consideration was that an individual could not
be notified of interception measures while interception was ongoing
or where notification would jeopardise the capabilities or operations
of intercepting agencies. They therefore disputed that the less
restrictive measures proposed by the applicant were appropriate.
They noted that protection of witnesses’ identities would not assist in
keeping secret whether interception had occurred. Nor would
disclosure of redacted documents or summaries of sensitive material.
Further, unless they were appointed in every case, the appointment
of special advocates would also allow a complainant to draw
inferences about whether his communications had been intercepted.
183. The Government argued that the procedure before the IPT
offered as fair a procedure as could be achieved in the context of
secret surveillance powers. In particular, a complainant did not have
to overcome any evidential burden to apply to the IPT and any legal
issues could be determined in a public judgment after an inter partes
hearing. Further, the IPT had full powers to obtain any material it
considered necessary from relevant bodies and could call upon the
assistance of the Commissioner. It could appoint an advocate to
assist it at closed hearings. Finally, in the event that the complainant
was successful, a reasoned decision would be provided.”
Page 20
35. The Court, in holding that there had been no violation of article 6 or 13 in
Kennedy, substantially aligned itself with the United Kingdom Government’s
position – particularly in so far as it endorsed in relation to the concept of a fair
trial under article 6 the relevance of similar considerations to those taken into
account, previously and in Kennedy itself, when applying articles 8 and 13. It held:
“184. The Court reiterates that according to the principle of equality
of arms, as one of the features of the wider concept of a fair trial,
each party must be afforded a reasonable opportunity to present his
case under conditions that do not place him at a substantial
disadvantage vis-a-vis his opponent ….. The Court has held none the
less that, even in proceedings under article 6 for the determination of
guilt on criminal charges, there may be restrictions on the right to a
fully adversarial procedure where strictly necessary in the light of a
strong countervailing public interest, such as national security, the
need to keep secret certain police methods of investigation or the
protection of the fundamental rights of another person. There will
not be a fair trial, however, unless any difficulties caused to the
defendant by a limitation on his rights are sufficiently
counterbalanced by the procedures followed by the judicial
authorities (see, for example, Doorson v The Netherlands (1996) 22
EHRR 330, para 70; Jasper v United Kingdom (2000) 30 EHRR 441,
paras 51 to 53; and A v United Kingdom (2009) 49 EHRR 625, para
205). A similar approach applies in the context of civil proceedings.
185. The Court notes that the IPT, in its preliminary ruling of 23
January 2003, considered the applicant’s complaints regarding the
compliance of the Rules with article 6(1). It found that, with the
exception of rule 9(6) which required all oral hearings to be held in
private, the Rules challenged by the applicant were proportionate and
necessary, with special regard to the need to preserve the
Government’s ‘neither confirm nor deny policy’ ……
186. At the outset, the Court emphasises that the proceedings related
to secret surveillance measures and that there was therefore a need to
keep secret sensitive and confidential information. In the Court’s
view, this consideration justifies restrictions in the IPT proceedings.
The question is whether the restrictions, taken as a whole, were
disproportionate or impaired the very essence of the applicant’s right
to a fair trial.
187. In respect of the rules limiting disclosure, the Court recalls that
the entitlement to disclosure of relevant evidence is not an absolute
Page 21
right. The interests of national security or the need to keep secret
methods of investigation of crime must be weighed against the
general right to adversarial proceedings (see, mutatis mutandis,
Edwards and Lewis v United Kingdom (2005) 40 EHRR 593, para
46). The Court notes that the prohibition on disclosure set out in rule
6(2) admits of exceptions, set out in rules 6(3) and (4). Accordingly,
the prohibition is not an absolute one. The Court further observes
that documents submitted to the IPT in respect of a specific
complaint, as well as details of any witnesses who have provided
evidence, are likely to be highly sensitive, particularly when viewed
in light of the Government’s ‘neither confirm nor deny’ policy. The
Court agrees with the Government that, in the circumstances, it was
not possible to disclose redacted documents or to appoint special
advocates as these measures would not have achieved the aim of
preserving the secrecy of whether any interception had taken place.
It is also relevant that where the IPT finds in the applicant’s favour, it
can exercise its discretion to disclose such documents and
information under rule 6(4) ……
188. As regards limitations on oral and public hearings, the Court
recalls, first, that the obligation to hold a hearing is not absolute.
There may be proceedings in which an oral hearing is not required
and where the courts may fairly and reasonably decide the case on
the basis of the parties’ submissions and other written materials. The
character of the circumstances that may justify dispensing with an
oral hearing essentially comes down to the nature of the issues to be
decided by the competent national court (see Jussila v Finland
(2006) 45 EHRR 900, paras 41 to 42). The Court notes that rule 9(2)
provides that oral hearings are within the IPT’s discretion and it is
clear that there is nothing to prevent the IPT from holding an oral
hearing where it considers that such a hearing would assist its
examination of the case. …..
189. Concerning the provision of reasons, the Court emphasises that
the extent to which the duty to give reasons applies may vary
according to the nature of the decision and must be determined in the
light of the circumstances of the case (see Ruiz Torija v Spain (1994)
19 EHRR 553, para 29). In the context of the IPT’s proceedings, the
Court considers that the “neither confirm nor deny” policy of the
Government could be circumvented if an application to the IPT
resulted in a complainant being advised whether interception had
taken place. In the circumstances, it is sufficient that an applicant be
advised that no determination has been in his favour. The Court
further notes in this regard that, in the event that a complaint is
Page 22
successful, the complainant is entitled to have information regarding
the findings of fact in his case …..
190. In light of the above considerations, the Court considers that the
restrictions on the procedure before the IPT did not violate the
applicant’s right to a fair trial. In reaching this conclusion, the Court
emphasises the breadth of access to the IPT enjoyed by those
complaining about interception within the United Kingdom and the
absence of any evidential burden to be overcome in order to lodge an
application with the IPT. In order to ensure the efficacy of the secret
surveillance regime, and bearing in mind the importance of such
measures to the fight against terrorism and serious crime, the Court
considers that the restrictions on the applicant’s rights in the context
of the proceedings before the IPT were both necessary and
proportionate and did not impair the very essence of the applicant’s
article 6 rights.”
As regards article 13, the Court held that the IPT offered to the applicant an
effective remedy insofar as his complaint was directed towards the alleged
interception of his communications and, in respect of the applicant’s general
complaint under article 8, it reiterated “its case law to the effect that article 13 does
not require the law to provide an effective remedy where the alleged violation
arises from primary legislation”, citing in this respect also Leander v United
Kingdom 9 EHRR 433.
36. These three cases – Leander, Esbester and Kennedy – establish that the
demands of national security may necessitate and under European Convention law
justify a system for handling and determining complaints under which an applicant
is, for reasons of national security, unable to know the secret material by reference
to which his or her complaint is determined. The critical questions under the
Convention are whether the system is necessary and whether it contains sufficient
safeguards. But, subject to satisfactory answers on these questions, national
security considerations may justify a closed material procedure, closed evidence
(even without use of a special advocate) and, furthermore, (as in Kennedy itself) a
blanket decision leaving the precise basis of determination unclear.
37. There is however a further decision, even more recent than Kennedy, on
which Mr Allen relies in an opposite sense. That is Užukauskas v Lithuania
(Application No 16965/04) decided by the Second Section of the Court on 6 July
2010. The applicant had a licence to keep a pistol and hunting rifle. His request for
a licence for another kind of firearm was refused and his existing licence was
withdrawn, after his listing by the police in an operational records file maintained
by the police to hold data for law enforcement bodies obtained during operational
Page 23
activities. He instituted proceedings challenging his listing, and the court, after
examining classified material submitted by the police without disclosure to the
applicant, upheld the listing. He complained to the European Court of Human
Rights on the basis that there had been a breach of article 6(1). The Court said
(para 48):
“The Court is not insensitive to the goals which the Lithuanian law
enforcement authorities pursued through their operational activities.
Likewise, the Court shares the Government’s view that documents
which constitute state secrets may only be disclosed to persons who
possess the appropriate authorisation. And yet the Court notes that
Lithuanian law and judicial practice provide that such information
may not be used as evidence in court against a person unless it has
been declassified, and that it may not be the only evidence on which
a court bases its decision (see paras 20-22 above).”
It went on to indicate that the file was the only evidence of the applicant’s alleged
danger to society, that he had repeatedly asked for its disclosure to him, even in
part, and that, without it, he had no possibility of being apprised of the evidence
against him or of being able to respond to it (paras 50-51). The Court concluded
(para 51):
“In conclusion, therefore, the Court finds that the decision-making
procedure did not comply with the requirements of adversarial
proceedings or equality of arms, and did not incorporate adequate
safeguards to protect the interests of the applicant. It follows that
there has been a violation of article 6(1) in the present case.”
The case has the special feature that the procedure adopted was contrary to
Lithuanian law. Quite probably for this reason, no reference was made to any of
the decisions considered in paras 28 to 36 of this judgment. There was evidently
also no procedure under Lithuanian law for the use of a special advocate to
consider closed material: the choice lay between declassification and no use of the
material at all. The decision is therefore very far from the present, and does not
offer assistance on the issues which arise on this appeal.
(d) Necessity for a closed material procedure in this case
38. In the present case, Mr Allen submits that no necessity is shown for a
closed material procedure. He submits that “the rule of law and the maintenance of
the modern democratic state [will] not [be] imperilled if the Home Office loses this
Page 24
case for want of advancing a secret case”. In other words, the worst that may
happen is that the Home Office has to pay an unmeritorious claim. On this basis,
Mr Allen distinguishes control order cases such as AF (No 3), in which it could be
said that national security would be directly imperilled if secret evidence could not
be used to justify imposing a control order. This distinction would positively
encourage unmeritorious claims; and it would on any view mean that the
government could only operate a security vetting system on pain of having to
accept or pay all claims for discrimination which appeared sufficiently arguable to
avoid being dismissed as abusive.
39. The only other possibility is that a court might, following the Court of
Appeal decision in Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786,
determine that, if the national security material could not be deployed in defence,
the claim might not be fairly justiciable at all. Laws LJ said of this situation in
Carnduff (para 36) that “…. a case which can only be justly tried if one side holds
up its hands cannot, in truth, be justly tried at all”. Under that possibility, it would
be Mr Tariq’s case which would fail in limine.
40. Neither of these possibilities is one which the law should readily
contemplate. In the penal context, an accused is presumed innocent until proved
guilty; there is a public interest in the trial of suspects before a court, but it is better
that the state should forego prosecution than that there should be any risk of an
innocent person being found guilty through inability to respond to the full case
against them. These imperatives do not operate in quite the same way in a civil
context like the present, where the state may not be directly involved as a party at
all. The rule of law must, so far as possible, stand for the objective resolution of
civil disputes on their merits by a tribunal or court which has before it material
enabling it to do this. In considering how this may be achieved, if a defendant can
only defend itself by relying on material the disclosure of which would damage
national security, a balance may have to be struck between the interests of claimant
and defendant in a civil context.
41. Mr Allen’s submission also involves anomalies. The Leander, Esbester and
Kennedy cases demonstrate that, had Mr Tariq been claiming that the decision to
suspend or remove security clearance was unjustified on its merits, he could not
have complained about the use of a closed material procedure. Yet, on Mr Allen’s
submission, all such a claimant would (presumably) have to do would be to claim
damages, rather than any other relief. The Home Office could still only defend the
claim by disclosing material contrary to the national interest; but, on Mr Allen’s
case, no problem arises: the Home Office would not have to damage the national
interest by making disclosure; instead, it could simply admit liability or defend
fruitlessly and lose for want of being able to deploy the material. I cannot think
that that is the law, in Strasbourg or domestically.
Page 25
(e) The acceptability of a special advocate procedure
42. I do not therefore consider that a closed material procedure is in principle
inconsistent with the right to an effective remedy in respect of alleged
discrimination or with the Human Rights Convention. But there are further strings
to Mr Allen’s case, which call for closer examination of the actual procedure, in
particular the use of a special advocate. A special advocate procedure has been
accepted as potentially useful in both United Kingdom and Strasbourg case law.
Thus, in A v United Kingdom, addressing the issue of detention of terrorist
suspects without trial, the Court of Human Rights said (para 220):
“The Court further considers that the special advocate could perform
an important role in counterbalancing the lack of full disclosure and
the lack of a full, open, adversarial hearing by testing the evidence
and putting arguments on behalf of the detainee during the closed
hearings. However, the special advocate could not perform this
function in any useful way unless the detainee was provided with
sufficient information about the allegations against him to enable
him to give effective instructions to the special advocate.”
The Court went on:
“While this question must be decided on a case-by-case basis, the
Court observes generally that, where the evidence was to a large
extent disclosed and the open material played the predominant role
in the determination, it could not be said that the applicant was
denied an opportunity effectively to challenge the reasonableness of
the Secretary of State’s belief and suspicions about him. In other
cases, even where all or most of the underlying evidence remained
undisclosed, if the allegations contained in the open material were
sufficiently specific, it should have been possible for the applicant to
provide his representatives and the special advocate with information
with which to refute them, if such information existed, without his
having to know the detail or sources of the evidence which formed
the basis of the allegations.”
It concluded by saying that where the open material consisted of general assertions
and the decision to maintain the detention was based “solely or to a decisive
degree” on closed material, the procedural requirements of article 5(4) would not
be satisfied. Domestically, the House of Lords in both Secretary of State for the
Home Department v MB [2007] UKHL 46; [2008] AC 440 and Secretary of State
for the Home Department v AF (No 3) [2010] 2 AC 269 accepted a special
Page 26
advocate procedure, while endorsing in AF (No 3) the applicability, in the context
of control orders, of the approach taken in A v United Kingdom.
43. Mr Allen draws attention to a report of the Joint Committee on Human
Rights of the Houses of Lords and Commons on Counter-Terrorism Policy and
Human Rights (Session 2006-2007) (HL Paper 157, HC 394), published 30 July
2007, which precedes the cases mentioned in the previous paragraph. The
Committee was addressing the use of special advocates in, in particular, control
order proceedings, but it also heard evidence from four special advocates
(including Ms Farbey who acts in this case), which ranged more widely. It
identified a number of concerns. These included, first, the overriding duty to which
it saw both SIAC and a court as being subject, to ensure that material was not
disclosed contrary to the public interest, in other words its inability to balance the
interests of justice to the individual against the public interest in non-disclosure
(paras 196 and 199). It was also concerned by, secondly, the difficulties presented
if closed material was not “gisted” (paras 195 and 199) and, thirdly, the
inflexibility of the prohibition on communication between special advocates and
the person concerned or his or her legal representatives, once the special advocate
had seen the closed material (paras 203 and 205).
44. The first of these concerns is covered and resolved by case law subsequent
to the Joint Committee’s Report. Under rule 54(2) the employment tribunal or
judge has a discretion. This is subject to rule 54(4), according to which a tribunal
or judge, when exercising its or his functions, “shall ensure that information is not
disclosed contrary to the interests of national security”. But the tribunal or judge is
subject to the overriding objective to deal with cases justly under regulation 3 of
the Employment Procedure Regulations, and, most importantly also, obliged under
section 3 of the Human Rights Act 1996 to interpret primary and secondary
legislation in a way which is compatible with Convention rights. In Secretary of
State for the Home Department v MB [2008] AC 440 (decided 31 October 2007),
the House of Lords held that paragraph 4(3)(d) of the Prevention of Terrorism Act
2005 (the terms of which parallel those of rule 54(2)) “should be read and given
effect ‘except where to do so would be incompatible with the right …. to a fair
trial’ ” (para 72, per Lady Hale; and see paras 84 and 92 per Lord Carswell and
Lord Brown). The result was that, when and if the court did not consider that
material could safely remain closed, the Secretary of State had a choice: either to
disclose to the person concerned, or to withdraw reliance on the material. The
House followed and applied this reasoning in Secretary of State for the Home
Department v AF (No 3) [2010] 2 AC 269, when deciding that persons subject to
control orders must be told the gist of the case against them. Applying it in the
context of the present secondary legislation in rule 54(2), it means that, even if
disclosure of material to the person concerned might involve some potential
damage to national security, an employment tribunal or court might, weighing the
interests of justice, conclude that either the state should make such disclosure, not
Page 27
merely to the special advocate but also to the person concerned, or it should
withdraw any reliance on the material. Likewise, in relation to the third concern, it
is a matter of discretion how far such contact is permitted, and the tribunal or judge
can and should exercise such discretion flexibly and after balancing the competing
interests. The second concern involves consideration of the case law and issue
discussed in paras 28 to 37 above and 63 to 68 below.
45. Mr Allen submits, first, that, despite the general endorsement of its potential
appropriateness in these cases, the special advocate procedure involves flaws
undermining its acceptability; and, secondly, that, even if the special advocate
procedure is otherwise acceptable, this can only be on the basis of disclosure of the
substance of the Home Office’s case (“gisting”) in respect of Mr Tariq. Since the
Court of Appeal accepted this second submission, it arises for consideration as a
result of the Home Office’s cross-appeal.
46. The flaws which Mr Allen identifies relate to the special advocate’s role
and powers and the lack of guidance as to their exercise or supervision. These are
matters of detail which he submits have gone largely and unjustifiably without
scrutiny in previous cases. As to role, Mr Allen takes issue at the outset with the
appointment of special advocates “by the Attorney General who is the
government’s principal legal adviser”. This is a point which was addressed and is
the subject of previous authority in the form of the House of Lords’ decision in R v
H [2004] UKHL 3; [2004] 2 AC 134, where the suitability of the Attorney General
to act in this respect had been questioned in the courts below. Lord Bingham
giving the unanimous opinion of the House said (para 46):
“In our opinion such doubt is misplaced. It is very well-established
that when exercising a range of functions the Attorney General acts
not as a minister of the Crown (although he is of course such) and
not as the public officer with overall responsibility for the conduct of
prosecutions, but as an independent, unpartisan guardian of the
public interest in the administration of justice: see Halsbury’s Laws
of England, 4th ed, vol 44(1) (1995), para 1344; Edwards, The Law
Officers of the Crown (1964), pp ix, 286, 301-302. It is in that
capacity alone that he approves the list of counsel judged suitable to
act as special advocates or, now, special counsel, as when, at the
invitation of a court, he appoints an amicus curiae. Counsel roundly
acknowledged the complete integrity shown by successive holders of
the office in exercising this role, and no plausible alternative
procedure was suggested. It would perhaps allay any conceivable
ground of doubt, however ill-founded, if the Attorney General were
to seek external approval of his list of eligible advocates by an
appropriate professional body or bodies, but such approval is not in
Page 28
current circumstances essential to the acceptability of the
procedure.”
47. Special advocates are appointed from the independent bar or solicitoradvocates on the basis of open competition, and are selected for inclusion on the
panel on the basis of their abilities. Mr Tariq was able to make representations as
to the choice of his special advocate, in accordance with para 98 of the Treasury
Solicitor’s Special Advocates Guide, Special Advocates – A Guide to the Role of
Special Advocates and the Special Advocates Support Office (“SASO”). His
suggested choice was appointed. Para 88 of the Special Advocates’ Guide further
makes clear that:
“The role of the Attorney General (or Solicitor General, acting in his
place by virtue of section 1 Law Officers Act 1997) in appointing a
special advocate is purely formal. No ‘instructions’ (other than in the
purely formal sense) will come from the Law Officers to special
advocates indicating any particular way that the case in which the
special advocate is instructed is to be argued. That is a matter for
special advocates and the appellant, to the extent that the appellant
engages with the special advocates.”
Mr Allen’s first point on role is therefore one I reject.
48. Mr Allen next submits that special advocates are subject to a conflict of
interest which would be prohibited in private litigation. This is said to arise from
the fact that they are supported by a unit (SASO) which is located within the
Treasury Solicitor’s Department. It is not disputed (or disputable) that legal and
administrative support is necessary for a special advocate procedure to work; and it
is unclear as to where else such support might or should be located. The
submission is simply that there is an impermissible conflict of interest. Reliance is
placed on the Solicitors’ Code of Conduct 2007. Rule 3 precludes a solicitor from
acting (without informed consent) where there is a conflict of interests – defined as
existing where, inter alia, the solicitor or his firm owes separate duties to act in the
best interests of two or more clients in relation to the same or related matters, and
those duties conflict, or there is a significant risk that those duties may conflict. Mr
Allen further submits that there is no sufficient “Chinese wall” between SASO and
the remainder of the Treasury Solicitor’s Office to enable reliance on that
possibility, which was discussed in the House of Lords in Prince Jefri Bolkiah v
KPMG [1999] 2 AC 222.
49. In my opinion, these objections also fail. As to the former, the Treasury
Solicitor does not have two clients and is not in breach of the professional code.
Page 29
The special advocate is an independent (security-cleared) member of the bar or
solicitor-advocate, who is not professionally engaged by or on behalf of Mr Tariq,
though he or she is charged to represent Mr Tariq’s interests. As the Special
Advocates Guide states (para 113):
“Actual conflicts of interest in the usual sense do not arise, since a
special advocate owes no duty to the person whose interests he
represents. However, a special advocate should be careful to ensure
that no situation arises in which there could be any perception of
anything other than absolute independence on his part.”
The Guide then reminds special advocates of the need for care to avoid any
perceived conflict of interest when undertaking the role as well as in the future.
50. SASO, which supports special advocates, operates for all practical purposes
as a separate unit, with an established Chinese wall arrangement dividing it from
the rest of the Treasury Solicitor’s Office. Maurice Kay LJ set out the position
(para 30):
“SASO was set up in 2006 in response to the recommendation of the
Constitutional Affairs Select Committee in its report on the operation
of the Special Immigration Appeals Commission and use of SAs
[special advocates] (7th report, session 2004-2005, 3 April 2005).
The functions of SASO are described in Special Advocates – A Guide
to the Role of Special Advocates and the Special Advocates’ Support
Office, which is published on the Treasury Solicitor’s Department’s
website. It is SASO that provides an SA with formal instructions. It
also provides legal and administrative support to SAs and acts as the
librarian of closed case law for them. Although formal instructions
originate with SASO, it has no input into decisions such as whether
to appeal a closed adverse judgment or to open part of a closed
judgment. Such matters are for the independent judgment of the SA
alone. Although SASO is physically located within the premises of
the Treasury Solicitor at One Kemble Street, it has an established
Chinese wall arrangement and is for all practical purposes a separate
entity. It comprises five lawyers and three administrators. Four
lawyers and two administrators form the SASO (closed) team, the
remaining lawyer and administrator forming the SASO (open) team.
The open team does not have security clearance. It alone
communicates with the litigant’s open representatives. Although
other relevant litigation teams within the office of the Treasury
Solicitor are able to share their facilities, this is not so in relation to
SASO’s resources and facilities. It has completely separate
Page 30
document-handling, communication, storage and technology
facilities. The four lawyers who carry out casework on cases in
which the SAs are instructed do not carry out any work for any other
part of the Treasury Solicitor’s office. The fifth lawyer is at Grade 6
level. He does not have his own casework in relation to cases
involving SAs. His role is more supervisory and he has a wider line
management role which extends to the general private law litigation
team. He may report to the Attorney General but only in relation to
open issues in matters where SAs are instructed. In addition, in order
to protect the independence of the SASO team, there are conflict
checks to ensure that other members of the private law team do not
act in cases which are in any way relevant to SASO.”
51. Mr Allen challenges the adequacy of this system. The information about its
operation based on the Special Advocates Guide was amplified by a Home Office
note produced during the Court of Appeal hearing. Mr Tariq invites scepticism
about information provided in the context of litigation in which, he suggests, “the
Treasury Solicitor has an interest in the status quo”. The information that “SASO
operates on a Chinese wall basis with the Treasury Solicitor teams who represent
the Government in cases in which special advocates appear” is however contained
in the Special Advocates Guide (para 87). The arrangements described in both
documents evidence a serious intention to achieve such a separation, and there is
no reason to doubt their genuineness or efficacy. Significantly, as Maurice Kay LJ
indicated in the passage quoted above, the position is that, although formal
instructions originate with SASO, SASO has no input into special advocates’
decisions, which are taken only by the relevant independent special advocate. One
can also be confident that, if any special advocate or court at any point suspected
that the separation between SASO and other government legal teams was in any
way incomplete, this would at once be brought to light. Maurice Kay LJ, based on
his own experience, commented (para 32):
“If I may be permitted a subjective observation: 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.”
52. In these circumstances, Mr Allen focuses on the fifth of the five SASO
lawyers, a grade 6 lawyer who has no case-work responsibility at all, but who does
have a line management role in relation to both the SASO team and the Treasury
Solicitor’s general private law team. He also chairs the monthly special advocates’
meetings at which cases and tactics are discussed, the minutes of which are sent to
the Attorney General’s office, and he may occasionally brief the Attorney
General’s office on open issues only. After pointing out that a person in Mr Tariq’s
Page 31
position will instruct the special advocate before any closed material procedure
begins, Mr Allen suggests that the description given of the grade 6 lawyer’s
activity means that the content of such instructions could be shared with parts of
the Treasury Solicitor’s office outside the SASO team or even with the Attorney
General. I do not regard this as realistic. Substantive legal decisions are, as stated,
taken by the special advocate. The grade 6 lawyer has no case-work responsibility,
and would not on the face of it be likely even to know of any instructions given by
Mr Tariq. Even if he did know, disclosure to anyone outside the SASO team would
involve a serious breach of his duty. There is no reason to think that minutes of the
monthly meeting circulated to the Attorney General’s office would disclose such
instructions, and the special advocate would presumably receive them and ensure
that they did not. There is also no reason to think any briefing of the Attorney
General’s office could or would go into detail about individual cases, still less
about instructions given by Mr Tariq. It is clear that the Attorney General has no
role and no detailed knowledge in relation to individual cases.
53. In Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 the House was concerned
with accountants (KPMG) who were in possession of information confidential to a
former client (Prince Jefri) which might be relevant to instructions which they then
accepted from the Brunei Investment Agency, of which Prince Jefri had been
chairman, to investigate the whereabouts of certain assets suggested to have been
used by Prince Jefri for his own benefit. The House granted an injunction
restraining KPMG from acting for the Agency. It held that the burden was on
KPMG to show that there was no risk of the information coming into the
possession of those within KPMG acting for the Agency. KPMG had attempted to
erect a Chinese wall, but this was ad hoc and within a single department; further
the two teams involved – one which had acted for Prince Jefri and the one which
was acting for the Agency – contained large and rotating memberships of persons
accustomed to working with each other. In these circumstances, the House held
that, although there was no rule of law that “Chinese walls” or other similar
arrangements were insufficient, nevertheless, to eliminate the risk, “an effective
Chinese wall needs to be an established part of the organisational structure of the
firm, not created ad hoc and dependent on the acceptance of evidence sworn for
the purpose by members of staff engaged on the relevant work” (per Lord Millett,
at p 239D-E).
54. The present case falls into an opposite category. SASO has a small team
which works separately under arrangements which are not ad hoc, but wellestablished, and it uses the services of independent outside special advocates, who
can be relied upon to reinforce the culture and reality of such separation. There is
no reason to doubt the genuineness and efficacy of the Chinese wall which has
been set up in this way to service special advocates’ needs, in particular by
providing assistance described in para 90 of the Special Advocates’ Guide.
Page 32
55. Mr Allen makes other further criticisms of the arrangements for special
advocates: he submits that special advocates lack supervision, that there is
insufficient guidance as to their role and that they lack any or sufficiently defined
powers in respect of matters such as disclosure, the calling and cross-examination
of witnesses and appeal. I do not regard these criticisms as well-founded or as
rendering the whole closed material procedure unfair. Special advocates are
experienced independent practitioners, accustomed to act of their own initiative
and to take difficult decisions, and able to raise points of doubt or difficulty with
the tribunal or court before which they appear. The special advocate’s role is
familiar in a variety of contexts. It has been extensively described in the Special
Advocates’ Guide. It divides into two parts, the open and closed. The Guide notes
that throughout the open part, where the parties are exchanging open material, the
special advocate will have the opportunity to meet the person in whose interests he
or she is to act and to obtain as good an understanding as possible of his or her
case (paras 99 – 100). Once the open stages have been completed the Secretary of
State will serve his or her closed material upon the special advocate only (paras
101 – 102).
The Guide goes on (para 102):
“The receipt of closed material … marks the end of the period in
which the special advocate may communicate directly with the
appellant. It should be noted that communication with the appellant
is still possible at this point – but any communication from the
special advocate to the appellant after this time requires the
permission of the Court and the proposed format of it must be
notified to the Secretary of State who can make objections if he so
wishes (see SIAC Rule 36(4) and CPR 76.25(4)).”
56. During the closed phase, the special advocate’s role was summarised by
Sedley LJ in Murungaru v Secretary of State for the Home Department [2008]
EWCA Civ 1015, [2009] INLR 180 in this way at para 17:
“The ways in which a special advocate will seek to represent the
interests of an appellant are, first, to test by cross-examination,
evidence and argument the strength of the case for non-disclosure.
Secondly, to the extent that non-disclosure is maintained, the special
advocate is to do what he or she can to protect the interests of the
appellant, a task which has to be carried out without taking
instructions on any aspect of the closed material.”
Page 33
57. In relation to the protection of the interests of the person in Mr Tariq’s
position in relation to disclosure after the closed phase has begun, the Guide
amplifies the special advocate’s role (in the largely parallel context of his or her
role in proceedings before SIAC) as follows (para 103):
“It is now for the special advocate to take a view himself on the
material and to decide whether any of what is contained within the
closed material should in fact be made open (and therefore be
disclosed to the appellant) because its disclosure would not harm the
public interest – e.g. the material is already in the public domain or
could not be regarded as damaging to national security or other
public interests. Sometimes, the special advocate will submit that a
summary or gist of the material could be safely disclosed to the
appellant. The special advocate has a period after service of the
closed material in which to consider and prepare written submissions
on what, if any, of the ‘closed’ material should become open. These
are known as rule 38 submissions in SIAC and rule 29 submissions
in Control Order proceedings (although they are in fact governed by
CPR 76.29). These submissions may also include requests to the
Secretary of State for further information or documents to be
provided to the special advocate. This period has usually in SIAC
been a period of two to three weeks (although no period is specified –
see SIAC Rules rule 38(3)). In the CPR, similar provisions specify a
period of two weeks for the special advocate to indicate whether he
challenges the Secretary of state’s assessment of what is open and
what is closed (see rule 76.29(3)), though the Court may modify it in
appropriate circumstances.”
58. With regard to the hearing on the merits, the special advocate will be
present during the open part, when he or she will have the opportunity to observe
how the case is put by counsel both for and against the person whose interests the
special advocate will be protecting during the closed phase. The closed hearing
will take place, and all but the special advocate and the Secretary of State will
withdraw. I see no reason why a special advocate may not, where appropriate, take
steps to call factual or expert evidence during the closed phase, if necessary
applying for any necessary witness summons. The Guide is in my view correct in
contemplating this (para 108):
“There is also a possibility that the special advocate may call his own
witnesses. This latter has never, to date, been undertaken, certainly
not in a SIAC context. There appears no reason in principle,
however, why this should not be possible, and special advocates in
proceedings in the High Court will have the considerable advantage
of being able to call on both the remainder of the CPR (insofar as not
Page 34
disapplied) and on the inherent jurisdiction of the Court to achieve
such an end. In its June 2005 ‘Response to the Constitutional Affairs
Select Committee’s Report into the Operation of SIAC and the Use
of Special Advocates’, the Government acknowledged that it is, in
principle, open to special advocates in SIAC appeals to call expert
evidence.”
59. On any appeal, it is well-established that the special advocate is able both to
appear and represent an appellant’s interests in any closed phase of the appeal. Mr
Allen suggests that the special advocate’s role in positively instituting an appeal in
relation to events or decisions occurring during the closed phase is insufficiently
clear. Again (and consistently with Maurice Kay LJ’s description in para 30, cited
in para 50 above) I see no reason why the special advocate’s role should not
embrace this. The special advocate may, with the court’s permission, communicate
with Mr Tariq, even after the closed phase has begun (para 50 above); the court
would no doubt permit a special advocate to inform a person in Mr Tariq’s
position that there were closed matters which merited consideration on appeal,
even though such matters could not in any way be disclosed. In this way, an appeal
could be lodged to enable the special advocate to pursue such matters, although the
subject matter and basis of the appeal would remain unknown to the person in Mr
Tariq’s position.
Reference to the Court of Justice
60. Mr Allen submits that the Supreme Court should refer to the Court of
Justice points arising in this case on which European Union law is relevant. Article
267 of the Treaty on the European Union provides:
“The Court of Justice of the European Union shall have jurisdiction
to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a
Member State, that court or tribunal may, if it considers that a
decision on the question is necessary to enable it to give judgment,
request the Court to give a ruling thereon.
Page 35
Where any such question is raised in a case pending before a court or
tribunal of a Member State against whose decisions there is no
judicial remedy under national law, that court or tribunal shall bring
the matter before the Court…”
61. The principles of European Union law which arise for consideration in this
case are clear. There must in particular be effective legal protection in respect of
the rights not to be discriminated against which Mr Tariq invokes, and, so far as
guidance is necessary, it is to be found for the relevant purposes in the European
Convention on Human Rights and the case law of the European Court of Human
Rights. The principles which the European Court of Human Rights would apply in
the area of national security have been confirmed recently by the decision in
Kennedy. The questions before the Supreme Court involve the application of such
principles to the circumstances of this case, and in particular to the closed material
procedure involving a special advocate which the Employment Tribunal has
ordered. There is on this basis no question of interpretation of the European
Treaties which calls for a reference under article 267 as explained by the Court of
Justice in Case 283/81 Srl CILFIT v Ministry of Health [1982] ECR 3415. It is not
the role of the Court of Justice to rule on the application of established general
criteria to a particular provision or arrangement, which must be considered in the
light of the particular circumstances of the case in question: compare Case C237/02 Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v
Hofstetter [2004] 2 CMLR 291, paras 21-23, explaining and distinguishing Joined
Cases C-240/98 to 244/98 Océano Grupo Editorial SA v Murciano Quintero
[2002] 1 CMLR 1226. I add that, if Mr Tariq were to have cause for complaint
about the application of the relevant legal principles as established by the
European Convention on Human Rights, there will always exist the potential to
seek redress in Strasbourg. The European Court of Human Rights is not limited to
the examination of questions of interpretation or law arising under the Convention,
but will re-examine the fairness of their application as a whole in the light of the
circumstances of the particular case.
62. It follows that I would hold that the use of a closed material procedure
before the Employment Tribunal was and is lawful in the present case, and dismiss
Mr Tariq’s appeal accordingly.
The Home Office’s appeal
63. It is as well to bear in mind at the outset that the general nature of the Home
Office’s case has been communicated to Mr Tariq. It is that the Home Office was
concerned in August 2006 “that [Mr Tariq] could be vulnerable to an approach to
determine if terrorist suspects had been flagged to the authorities or to smuggle
prohibited items airside” and that its decision to withdraw security clearance in
Page 36
December 2006 was “based on [his] close association with individuals suspected
of involvement in plans to mount terrorist attacks” and on its view that association
with such individuals might make him “vulnerable to attempts to exert undue
influence on [him] to abuse his position”: para 5 above; Mr Tariq must be able to
meet this case on a general basis, in particular, by disclosing and describing his
relationship and the nature and extent of his association with those of his relatives
suspected and his cousin who was ultimately convicted of terrorist activity; and he
has, further, on the basis of, in particular, his questioning in interview also been
able to mount a sufficiently arguable case of discrimination to avoid any
application to strike out his claim: para 6 above.
64. What is in issue is the declaration made by the Employment Appeal
Tribunal and upheld by the Court of Appeal to the effect that article 6 of the
European Convention on Human Rights “requires [Mr Tariq] 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”: para 3 above. This is worth repeating, because some language used in
the Court of Appeal might suggest that Mr Tariq knew nothing at all of the nature
of the case against him, as opposed to particular allegations supporting it. Thus, for
example, Maurice Kay LJ said that, although a closed material procedure was in
principle justified, it was none the less “the right of a litigant to know the essence
of the case against him, if necessary by ‘gisting’” ([2010] ICR 1034, para 43). He
went on to acknowledge that, in a particular case, “this may put the public
authority in the invidious position of having to make difficult decisions about
disclosure and whether or how a claim is to be defended”, but said that “all that is
for the future in this litigation. It is the consequence of the requirements of
justice”.
65. The Home Office by its appeal challenges this conclusion, pointing out that
it raises directly the dilemma addressed by the Court of Appeal in the case of
Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786. If the disclosure of
material would harm national security, but without disclosure the public authority
could not defend and would have to capitulate, the claim itself may not be
justiciable. The appeal raises the question whether there is an absolute requirement
that a claimant should him- or herself see and know the allegations forming the
basis of the state’s defence in sufficient detail to give instructions to the defence
legal team to enable the allegations to be challenged effectively.
66. One problem about the declaration made by the Employment Appeal
Tribunal and upheld by the Court of Appeal is that it is questionable whether or
how far it differs in any significant way from the ordinary duty of any party in any
litigation to disclose the nature of its factual allegations, where no issue of national
security arises at all. A second point is that the declaration made does not
correspond with any requirement expressed in section 7 of the Employment
Page 37
Tribunals Act 1996 or in the language of the statutory instruments made under that
Act. But the submission is no doubt that, if the Convention requires “gisting” of
the nature declared in every case, even though this could damage national security,
then the court should under section 3 of the Human Rights Act 1998 find it
possible to read into the Employment Tribunals Act 1996 and the ET Procedure
Rules and ET National Security Rules introduced under it, some qualification to
enable such gisting to occur.
67. The question is therefore whether there is in the European Convention on
Human Rights, as explained by the European Court of Human Rights, any such
absolute requirement, where this would involve the disclosure to Mr Tariq of the
detail of allegations which would in normal litigation require to be disclosed, but
which the interests of national security require to be kept secret. Clearly, it is a
very significant inroad into conventional judicial procedure to hold a closed
material procedure admissible, if it will lead to a claimant not knowing of such
allegations in such detail. As the Home Office acknowledges, it is an inroad which
should only ever be contemplated or permitted by a court, if satisfied after
inspection and full consideration of the relevant material as well as after hearing
the submissions of the special advocate, that it is essential in the particular case;
and this should be kept under review throughout the proceedings.
68. However, to say that it is not possible under the Convention as interpreted
by the Court in Strasbourg is in my view impossible, in the light of the clear line of
jurisprudence culminating in the Court’s decision in Kennedy which I have already
discussed in paras 27 to 37 above. It is significant that, when the Court of Appeal
reached its decision, it did not have the benefit of Kennedy.
69. I would therefore allow the Home Office’s appeal, and set aside the
declaration made below to the effect that there exists an absolute requirement that
Mr Tariq personally or his legal representatives be provided with sufficient detail
of the allegations made against him to enable him to give instructions to his legal
representatives on them. As I have indicated, both Mr Tariq and his legal
representatives already know of the general nature of the Home Office’s case. The
Employment Tribunal will, with the assistance of the special advocate, keep under
review and will be able to determine whether any and what further degree of
gisting of the Home Office’s case, or of disclosure regarding the detail of
allegations made in support of it, is required, having regard to (a) the nature of the
relevant allegations and of the national security interest in their non-disclosure and
in the light of its best judgment as to (b) the significance of such allegations for the
Home Office’s defence and (c) the significance for Mr Tariq’s claim of the
disclosure or non-disclosure of such allegations to him.
Page 38
ANNEX
Employment Tribunals Act 1996, section 10
(judgment, para 9)
“(5) Employment tribunal procedure regulations may make provision enabling a
Minister of the Crown, if he considers it expedient in the interests of national
security-
(a) to direct a tribunal to sit in private for all or part of particular
Crown employment proceedings;
(b) to direct a tribunal to exclude the applicant from all or part of
particular Crown employment proceedings;
(c) to direct a tribunal to exclude the applicant’s representatives from
all or part of particular Crown employment proceedings;
(d) to direct a tribunal to take steps to conceal the identity of a
particular witness in particular Crown employment proceedings;
(e) to direct a tribunal to take steps to keep secret all or part of the
reasons for its decision in particular Crown employment
proceedings.
(6) Employment tribunal procedure regulations may enable a tribunal, if it
considers it expedient in the interests of national security, to do in relation to
particular proceedings before it anything of a kind which, by virtue of subsection
(5), employment tribunal procedure regulations may enable a Minister of the
Crown to direct a tribunal to do in relation to particular Crown employment
proceedings.
(7) In relation to cases where a person has been excluded by virtue of subsection
(5)(b) or (c) or (6), employment tribunal procedure regulations may make
provision-
(a) for the appointment by the Attorney General …. of a person to
represent the interests of the applicant; ….”
—————–
The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004 (SI 2004/1861)
Schedule 1 The Employment Tribunals Rules of Procedure
Page 39
“54(1) A Minister of the Crown (whether or not he is a party to the proceedings)
may, if he considers it expedient in the interests of national security, direct a
tribunal or Employment Judge by notice to the Secretary to:–
(a) conduct proceedings in private for all or part of particular Crown
employment proceedings;
(b) exclude the claimant from all or part of· particular Crown
employment proceedings;
(c) exclude the claimant’s representative from all or part of particular
Crown employment proceedings;
(d) take steps to conceal the identity of a particular witness in
particular Crown employment proceedings.
(2) A tribunal or Employment Judge may, if it or he considers it expedient in the
interests of national security, by order—
(a) do in relation to particular proceedings before it anything which
can be required by direction to be done in relation to particular
Crown employment proceedings under paragraph (1);
(b) order any person to whom any document (including any
judgment or record of the proceedings) has been provided for the
purposes of the proceedings not to disclose any such document or the
content thereof:–
(i) to any excluded person;
(ii) in any case in which a direction has been given
under [sub-]paragraph (l)(a) or an order has been made
under [sub-]paragraph (2)(a) read with sub-paragraph
(1)(a), to any person excluded from all or part of the
proceedings by virtue of such direction or order; or
(iii) in any case in which a Minister of the Crown has
informed the Secretary in accordance with paragraph
(3) that he wishes to address the tribunal or
Employment Judge with a view to an order being made
under sub-paragraph (2)(a) read with sub-paragraph
(l)(b) or (c), to any person who may be excluded from
all or part of the proceedings by virtue of such an
order, if an order is made, at any time before the
tribunal or Employment Judge decides whether or not
to make such an order;
(c) take steps to keep secret all or part of the reasons for its
judgment.
The tribunal or Employment Judge (as the case may be) shall keep under review
any order it or he has made under this paragraph.
Page 40
(3) In any proceedings in which a Minister of the Crown considers that it would be
appropriate for a tribunal or Employment Judge to make an order as referred to in
paragraph (2), he shall (whether or not he is a party to the proceedings) be entitled
to appear before and to address the tribunal or Employment Judge thereon. The
Minister shall inform the Secretary by notice that he wishes to address the tribunal
or Employment Judge and the Secretary shall copy the notice to the parties.
(4) When exercising its or his functions, a tribunal or Employment Judge shall
ensure that information is not disclosed contrary to the interests of national
security.”
——————————
The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004
Schedule 2 The Employment Tribunals (National Security) Rules of Procedure
“8 Special advocate
(1) In any proceedings in which there is an excluded person the tribunal or
Employment Judge shall inform the Attorney General … of the proceedings before
it with a view to the Attorney General … , if he thinks it fit to do so, appointing a
special advocate to represent the interests of the claimant in respect of those parts
of the proceedings from which-
(a) any representative of his is excluded;
(b) both he and his representative are excluded; or
(c) he is excluded, where he does not have a representative.
(2) A special advocate shall have a general qualification for the purposes of
section 71 of the Courts and Legal Services Act 1990 or shall be an advocate or a
solicitor admitted in Scotland.
(3) Where the excluded person is the claimant, he shall be permitted to make a
statement to the tribunal or Employment Judge before the commencement of the
proceedings, or the part of the proceedings, from which he is excluded.
(4) Except in accordance with paragraphs (5) to (7), the special advocate may not
communicate directly or indirectly with any person (including an excluded
person)—
(a) (except in the case of the tribunal, Employment Judge and the
respondent) on any matter contained in the grounds for the response
referred to in rule 3(3);
Page 41
(b) (except in the case of a person who was present) on any matter
discussed or referred to during any part of the proceedings in which
the tribunal or Employment Judge sat in private in accordance with a
direction or an order given or made under rule 54.
(5) The special advocate may apply for orders from the tribunal or Employment
Judge authorising him to seek instructions from, or otherwise to communicate
with, an excluded person
(a) on any matter contained in the grounds for the response referred
to in rule 3(3); or
(b) on any matter discussed or referred to during any part of the
proceedings in which the tribunal or Employment Judge sat in
private in accordance with a direction or an order given or made
under rule 54.
(6) An application under paragraph (5) shall be made in writing to the
Employment Tribunal Office and shall include the title of the proceedings and the
grounds for the application.
(7) The Secretary shall notify the Minister of an application under paragraph (5)
and the Minister shall be entitled to address the tribunal or Employment Judge on
the application.
(8) In these rules and those in Schedule I, in any case in which a special advocate
has been appointed to represent the interests of the claimant in accordance with
paragraph (I), any reference to a party shall (save in those references specified in
paragraph (9)) include the special advocate.
….
10 Reasons in national security proceedings
(1) This rule applies to written reasons given under rule 30 of Schedule 1 for a
judgment or order made by the tribunal or Employment Judge in national security
proceedings.
(2) Before the Secretary sends a copy of the written reasons (‘the full written
reasons’) to any party, or enters them in the Register under rule 32 of Schedule I,
he shall send a copy of the full written reasons to the Minister.
(3) If the Minister considers it expedient in the interests of national security and he
has given a direction or the tribunal or an Employment Judge has made an order
under rule 54 in those proceedings, the Minister may-
Page 42
(a) direct the tribunal or Employment Judge that the full written
reasons shall not be disclosed to persons specified in the direction,
and to prepare a further document (‘the edited reasons’) setting out
the reasons for the judgment or order, but with the omission of such
of the information as is specified in the direction;
(b) direct the tribunal or Employment Judge that the full written
reasons shall not be disclosed to persons specified in the direction,
but that no further document setting out the tribunal or Employment
Judge’s reasons should be prepared.
(4) Where the Minister has directed the tribunal or Employment Judge in
accordance with sub-paragraph 3(a), the edited reasons shall be signed by the
Employment Judge and initialled in each place where an omission has been made.
(5) Where a direction has been made under sub-paragraph (3)(a), the Secretary
shall-
(a) send a copy of the edited reasons referred to in subparagraph
(3)(a) to any person specified in the direction and to the persons
listed in paragraph (7);
(b) enter the edited reasons in the Register, but omit from the
Register the full written reasons; and
(c) send a copy of the full written reasons to the persons listed in
paragraph (7).
(6) Where a direction has been made under sub-paragraph (3)(b), the Secretary
shall send a copy of the full written reasons to the persons listed in paragraph (7),
but he shall not enter the full written reasons in the Register.
(7) The persons to whom full written reasons should be sent in accordance with
paragraph (5) or (6) are-
(a) the respondent;
(b) the claimant or the claimant’s representative if they were not
specified in the direction made under paragraph (3);
(c) if applicable, the special advocate;
(d) where the proceedings were referred to the tribunal by a court, to
that court; and
(e) where there are proceedings before a superior court (or in
Scotland, an appellate court) relating to the decision in question, to
that court.”
——————–
The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004
Page 43
Regulation 2 – Definitions
“‘excluded person’ means, in relation to any proceedings, a person who has been
excluded from all or part of the proceedings by virtue of:-
(a) a direction of a Minister of the Crown under rule 54(1)(b) or (c)
of
Schedule 1, or
(b) an order of the tribunal under rule 54(2)(a) read with 54(1)(b) or
(c) of Schedule 1;
‘national security proceedings’ means proceedings in relation to which a direction
is given under rule 54(1) of Schedule 1, or an order is made under rule 54(2) of
that Schedule;
‘special advocate’ means a person appointed in accordance with rule 8 of Schedule
2 ….”
Page 44
LORD HOPE
70. I agree that, for the reasons so fully set out by Lord Mance in his judgment
and the further reasons given by Lord Brown and Lord Dyson, the appeal by the
Home Office should be allowed and that the cross-appeal by Mr Tariq should be
dismissed.
71. At the heart of both the appeal and the cross-appeal are two principles of
great importance. They pull in different directions. On the one hand there is the
principle of fair and open justice. As O’Connor J declared in Hamdi v Rumsfeld
542 US 507 (2004), 533, parties whose rights are to be affected are entitled to be
heard and in order that they may enjoy that right they must first be notified. In
European Convention terms, this is the principle of equality of arms which is part
of the wider concept of a fair trial: Kennedy v United Kingdom (Application No
26839/05) (unreported) 18 May 2010, para 184. On the other there is the principle
that gives weight to the interests of national security. This is one of the legitimate
aims referred to in articles 8(2), 10(2) and 11(2) of the Convention. The extent of
the discretion that must be accorded to the national authorities in this field was
recognised in Leander v Sweden (1987) 9 EHHR 433, para 59. National security
was described as a strong countervailing public interest in Kennedy, para 184. But
it must be weighed against the fundamental right to a fair trial.
72. The context will always be crucial to a resolution of questions as to where
and how this balance is to be struck. Mr Tariq was employed by the Home Office
in a capacity for which security clearance was required in the interests of national
security. To be effective security vetting will usually, if not invariably, require to
be carried out in secret. Its methods and the sources of information on which it
depends cannot be revealed to the person who is being vetted. Those who supply
the information must be able to do so in absolute confidence. In some cases, their
personal safety may depend on this. The methods, if revealed to public scrutiny,
may become unusable. These are the unusual circumstances in which the claim Mr
Tariq seeks to make in this case must be determined.
73. Mr Tariq’s complaint against the Home Office’s decision to suspend his
security clearance is that it was based on grounds that amounted to direct or
indirect discrimination against him on grounds of his race and religion. There is no
doubt that he is entitled to a fair and public hearing in the relevant tribunal of his
claim that the rights conferred on him by the Race Relations Act 1976 and the
Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) have
been breached. The principle of equal treatment is part of European Union law, but
it is for national law to ensure that the right to a fair hearing is respected according
to the principles established under the European Convention.
Page 45
74. By section 10(6) of the Employment Tribunals Act 1996 it is provided that
the employment tribunal procedure regulations may enable a tribunal, if it
considers it expedient in the interests of national security, to adopt a closed
procedure. Section 10(7) of the 1996 Act provides that the procedure regulations
may make provision in that event for the appointment by the Attorney General of a
special advocate to represent the interests of the applicant. The provisions that
were made in the exercise of that power are to be found in the Employment
Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
Rule 54 of Schedule 1 to the Regulations provides for the use of closed procedure,
and rule 8 of Schedule 2 provides for the appointment of special advocates.
75. No-one doubts Mr Tariq’s right not to be discriminated against on grounds
of his race or his religion. But it was his own choice to seek employment in a post
for which, in the interests of national security, security clearance was required. He
was a volunteer, not a conscript. This is not a case where he is the victim of action
taken against him by the state which deprived him of his fundamental rights.
Furthermore, as I have already indicated, security vetting is a highly sensitive area.
Its intensity will no doubt vary from case to case, but common to them all is the
need to preserve the integrity of sources of information and the methods of
obtaining it. That must always be the paramount consideration, whatever the
nature of the proceedings in which the issue arises. It ensures that the national
interest is protected when people are appointed to posts where security clearance is
required. Issues of employment and discrimination law raised by people appointed
to those posts may require access to the way this process has been carried out. It
was no doubt for that reason that the use of the closed procedure and the
appointment of special advocates was expressly authorised by the statute.
76. The question then is whether the difficulties that Mr Tariq faces in making
good his discrimination claim are sufficiently counterbalanced by the procedures
that the Home Office wishes the employment tribunal to adopt. First, there is the
use of the closed procedure for the consideration of the material on which the
Home Office wishes to rely in its defence. Is the procedure that the Regulations
have prescribed for use in national security cases compatible with European Union
law? This is the point raised by Mr Tariq’s cross-appeal. Second, if the use of the
closed procedure is lawful, how is it to be applied in this case? Is the Home Office
obliged to give sufficient detail of the material on which it relies to enable Mr
Tariq to give detailed instructions to his special advocate to enable that material to
be challenged effectively? This is the point raised by its appeal. The Court of
Appeal held that the principle illustrated by Secretary of State for the Home
Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 must apply. This was
despite the fact that this would put the Home Office in the invidious position of
having to make decisions as to whether, and if so how, the claim was to be
defended: [2010] EWCA Civ 462, [2010] ICR 1034, para 50.
Page 46
77. I have found the second issue more troublesome than the first. As to the
first, which is the issue raised in Mr Tariq’s cross-appeal, the question is whether
the use of the closed procedure in cases of this type impairs the very essence of his
right to a fair trial. The right to a fair trial itself is an absolute right, but rights that
are to be implied from article 6 of the European Convention are not: Brown v Stott
[2003] 1 AC 681, 719. Their purpose is to give effect, in a practical way, to the
fundamental right. The right to a fair hearing must ordinarily carry with it the right
to have proceedings conducted in open court, with full disclosure by both sides.
But, for the reasons already mentioned, the use of an open procedure where details
of the security vetting process are in issue cannot be resorted to without risk to the
integrity of the system which in the national interest must be preserved. The
observations of the Court of Justice in Joined Cases C-402/05P and C-415/05P
Kadi v Council of the European Union [2009] AC 1225, para 344 indicate that
European law is willing to accept a closed material procedure in the interests of
national security so long as the individual is accorded a sufficient measure of
procedural justice. That this is the position that the Strasbourg court too has
adopted is amply demonstrated by its decisions in Kennedy v United Kingdom,
paras 184-190. Parliament has expressed a clear democratic judgment that the
tribunal may in its discretion make use of the closed procedure with the assistance
of a special advocate.
78. As for the procedure that the 2004 Regulations provide for, several features
indicate that the balance has been struck in the right place. First, there is the fact
that, under the procedure provided for by rule 54(2) of Schedule 1 to the
Regulations, the decision as to whether closed procedure should be resorted to
rests with the tribunal or the employment judge. The fact that the decision is taken
by a judicial officer is important. It ensures that it is taken by someone who is both
impartial and independent of the executive. Second, there is the fact that, as this is
a judicial decision, it will not be taken without hearing argument in open court
from both sides. It will be an informed decision, not one taken without proper
regard to the interests of the individual. Third, it opens the door to the use of the
special advocate. Fourth, it is a decision that can and should be kept under review
as the case proceeds: see the last sentence of rule 54(2). Fifth, the special advocate
can and should be heard as the process of keeping it under review proceeds.
79. As against all that, account must be taken of the consequences for national
security if this procedure were not to be available to the tribunal. Without it, there
would be a stark choice: to conduct the entire defence in open proceedings
however damaging that might be to the system of security vetting, and in particular
to those who contributed to it in this case; or to concede the case and accept the
consequences. They would not only be financial. They would lead to the
government being seen as an easy target for unjustified claims. That would be a
field day for the unscrupulous. They could lead to tensions if those who were in a
position to make discrimination claims were thought to be enjoying an unfair
Page 47
advantage because their claims were not likely to be contested if they were to be
pressed to the point of a public hearing. I think that the balance lies firmly in
favour of allowing the tribunal, in its discretion, to make use of the closed
procedure. I would dismiss the cross-appeal.
80. As for the second issue, there is a very real problem. Procedural justice
indicates that Mr Tariq should be given sufficient information to enable him to
give detailed instructions to his special advocate so that she can challenge the
withheld material on his behalf. But Mr Eadie QC for the Home Office insists that
the process of gisting as envisaged in Secretary of State for the Home Department
v AF (No 3) [2010] 2 AC 269 cannot be resorted to in this case without risk to
those who were involved in the security vetting process. In the AF (No 3) case I
said that what would be needed would vary from case to case, and that the judge
would be in the best position to strike the balance between what was needed to
enable the special advocate to challenge the case against the individual and what
could properly be kept closed: para 86. But I also said that if the concept of an
effective challenge was to be applied, where detail matters it must be met by
detail: para 87. That is what Mr Eadie objects to in this case.
81. Here again the context for the argument is what matters. This is an entirely
different case from Secretary of State for the Home Department v AF (No 3).
There the fundamental rights of the individual were being severely restricted by
the actions of the executive. Where issues such as that are at stake, the rule of law
requires that the individual be given sufficient material to enable him to answer the
case that is made against him by the state. In this case the individual is not faced
with criminal proceedings against him or with severe restrictions on personal
liberty. This is a civil claim and the question is whether Mr Tariq is entitled to
damages. He is entitled to a fair hearing of his claim before an independent and
impartial tribunal. But the Home Office says that it cannot defend the claim in
open proceedings as, for understandable reasons, it cannot reveal how the security
vetting was done in his case. That conclusion is unavoidable, given the nature of
the work Mr Tariq was employed to do.
82. How then is the balance to be struck here? Mr Tariq will be at a
disadvantage if the closed procedure is adopted. But the disadvantage to the Home
Office is greater, as unless the closed procedure is adopted it will have to concede
the claim. There is no way that the disadvantage to the Home Office can be
minimised. It will simply be unable to defend itself. It will be unable to obtain a
judicial ruling on the point at all. That would plainly be a denial of justice. The
disadvantage to Mr Tariq, on the other hand, is less clear cut. He is not entirely
without information, as the general nature of the Home Office’s case has been
disclosed to him. He will have the services of the special advocate, with all that
that involves – second best by far, no doubt, but at least the special advocate will
be there. His claim will be judicially determined by an independent and impartial
Page 48
tribunal, which can be expected to take full account of the fact that the details of
the case for the Home Office have had to be kept closed. If inferences have to be
drawn because of the quality or nature of the evidence for the Home Office, they
will have to be drawn in Mr Tariq’s favour and not against him. And throughout
the process the need for the evidence to be kept closed will be kept under review as
rule 54 of Schedule 1 to the Regulations requires, with the assistance of the special
advocate.
83. There cannot, after all, be an absolute rule that gisting must always be
resorted to whatever the circumstances. There are no hard edged rules in this area
of the law. As I said at the beginning, the principles that lie at the heart of the case
pull in different directions. It must be a question of degree, balancing the
considerations on one side against those on the other, as to how much weight is to
be given to each of them. I would hold that, given the nature of the case, the fact
that the disadvantage to Mr Tariq that the closed procedure will give rise to can to
some extent be minimised and the paramount need to protect the integrity of the
security vetting process, the balance is in favour of the Home Office. I would
allow the appeal.
LORD BROWN
84. I have read Lord Mance’s comprehensive judgment and, like him, would
allow the Home Office’s appeal and dismiss Mr Tariq’s cross-appeal. As to the
cross-appeal – the question whether a closed material procedure in the
employment tribunal can ever be compatible with the Race Directive and the Equal
Treatment Framework Directive – there is almost nothing I wish to add to Lord
Mance’s judgment. To my mind plainly it can. The submission that it is never
necessary for reasons of national security to deploy secret evidence in employment
tribunal discrimination proceedings because instead the government can simply
pay up I find not merely unpersuasive but wholly preposterous. Is it seriously to be
suggested that, however unmeritorious such claims may be, the complainant
should simply be paid off? Taxpayers’ money aside, consider the appalling
consequences for the government’s reputation were there to be a succession of
findings of unlawful racial or religious discrimination and the insidious effect of
all this upon relations between different racial groups.
85. As for the appeal – in effect the question whether a complainant in Mr
Tariq’s position has to be provided with sufficient details of the allegations being
made against him (however sensitive the information on which they are based) to
enable him to give instructions to his special advocate in order effectively to
challenge them – I conclude no less clearly that this is not required. On this
question, however, I wish to add a few further thoughts of my own.
Page 49
86. It is, as I understand it, Mr Tariq’s case on the appeal – apparently
supported by Mr John Howell QC for JUSTICE and Liberty – that, assuming
(contrary to his primary case) that a closed material procedure is available at all in
employment tribunal proceedings, the complainant has exactly the same rights to
be “provided with sufficient information about the allegations against him to
enable him to give effective instructions to the special advocate” as the Grand
Chamber in A v United Kingdom (2009) 49 EHRR 625 (at para 220) decided had
to be given to those deprived of their liberty at Belmarsh Prison pursuant to the
Anti-terrorism, Crime and Security Act 2001. For simplicity’s sake I shall call this
degree of disclosure A-type disclosure. As is well known, the nine Members of the
House of Lords sitting in Secretary of State for the Home Department v AF (No 3)
[2009] UKHL 28, [2010] 2 AC 269 unanimously held that A-type disclosure was
similarly required in control order cases under the regime established by the
Prevention of Terrorism Act 2005 in place of the detention regime.
87. Substantially relying on A and on AF (No 3), Mr Allen QC submits that in
any special advocate context to which article 6 applies, there is required an
irreducible minimum standard of fairness which in every case demands A-type
disclosure. Prominent amongst the passages prayed in aid from the AF (No 3)
judgments are, to my considerable surprise, these from my own judgment:
“. . . the suspect must always be told sufficient of the case against
him to enable him to give ‘effective instructions’ to the special
advocate, notwithstanding that sometimes this will be impossible and
national security will thereby be put at risk” (para 116).
“Plainly there now is a rigid principle. Strasbourg has chosen in para
220 of A to stipulate the need in all cases to disclose to the suspect
enough about the allegations forming the sole or decisive grounds of
suspicion against him to enable him to give effective instructions to
the special advocate” (para 119).
88. The argument, notwithstanding its apparent acceptance by the Court of
Appeal, is to my mind unsustainable. As all the judgments in AF (No 3), my own
not least, made plain, the Grand Chamber’s judgment in A was to be regarded as
indistinguishable simply because of the striking similarities between the two
situations then under consideration: Belmarsh detention and the control order
regime. To suggest that the identical rigid principle will be imported into every
situation where article 6 applies “notwithstanding that sometimes this [A-type
disclosure] will be impossible and national security will thereby be put at risk” is
absurd. It is, indeed, to re-assert here the very argument already rejected in relation
to the cross-appeal: the argument that, if giving effect to A-type disclosure will
compromise national security, then it is always open to government instead to pay
Page 50
up. True it is that in the control order context, government has on a number of
occasions since AF (No 3) chosen to abandon the control order rather than make
the necessary degree of disclosure. That, however, is a far cry from recognising
that governments should face the same dilemma in the context of a monetary claim
for discrimination. Although the Court of Appeal did not regard these cases as
being in “a different category” (para 50 of Maurice Kay LJ’s judgment below), for
my part I strongly disagree.
89. Not merely, moreover, is there no support for Mr Allen’s argument to be
found in our domestic jurisprudence but, as Lord Mance convincingly
demonstrates, it is now clearly belied by a series of Strasbourg decisions
culminating most recently and most decisively in Kennedy v United Kingdom
(Application No 26839/05) (unreported) 18 May 2010. Kennedy concerned a
complaint, largely on article 6 grounds, against the ruling of the Investigatory
Powers Tribunal (IPT) made on 23 January 2003 as to the legality of various of
their rules. A sufficient description of the highly restrictive nature of these rules is
to be found at paras 7 and 25 of my judgment in this Court in R (A) v Director of
Establishments of the Security Service [2009] UKSC 12, [2010] 2 AC 1 (at paras 8
and 30 of which I noted that the IPT’s own decision on these rules was shortly to
be considered by the European Court of Human Rights, as now it has been in
Kennedy). The Court in Kennedy assumed (at para 179 of its judgment) that article
6 applies to proceedings before the IPT and then, at paras 181-190 of its judgment
(cited by Lord Mance at paras 34 and 35 above) comprehensively rejected the
claim that it had been violated. There could hardly be a clearer example of a
procedure being held compliant with article 6 notwithstanding the conspicuous
absence of anything approaching A-type disclosure.
90. The final comments I wish to make in the appeal are these. Security vetting
by its very nature often involves highly sensitive material. As an immigration
officer, Mr Tariq required security clearance to a comparatively high level (above
that of a counter-terrorist check albeit below that of developed vetting).
Immigration officers require long-term, frequent and controlled access to secret
information and assets. It is surely, therefore, not altogether surprising that, upon
his brother’s and his cousin’s arrest – and more particularly since his cousin’s
conviction and life sentence for conspiracy to murder arising out of a terrorist plot
to attack transatlantic flights from Heathrow – he has been suspended from duty
(albeit continuing to be paid) and his security clearance withdrawn. No one
suggests that Mr Tariq himself was involved in the plot. What is suggested,
however, is that he could be vulnerable to pressures from someone in his
community to abuse his position as an immigration officer.
91. Mr Tariq submitted an internal appeal against the Departmental Security
Officer’s decision to withdraw his security clearance but this was dismissed by the
Permanent Secretary of the Home Office (following his consideration of a full
Page 51
report from the Director of Human Resource Services). Mr Tariq then made a
further appeal to the Security Vetting Appeals Panel (SVAP) (presided over by a
retired High Court judge) which held both open and closed hearings, with a special
advocate appointed for the closed hearings, and which as recently as January 2011
dismissed the appeal. (No objection is taken to the SVAP’s use of a closed
procedure and special advocate, apparently on the basis that it was bound to use
such a procedure and that in any event its decision on the appeal is solely advisory,
the department being free to ignore it.)
92. We know nothing of the underlying facts of this case. Assume, however, in
a case like the present that someone in the employee’s community (perhaps a
relative or associate) has given information in confidence to those responsible for
reviewing the employee’s security clearance which is detrimental to his case.
Perhaps it belies assurances he has given as to the limited nature and extent of his
contacts with those suspected of terrorist activity. It surely goes without saying
that nothing of this could properly be disclosed to the employee beyond perhaps
telling him that the department was not satisfied with the assurances he has given.
To give chapter and verse of any inconsistencies between those assurances and the
information given to the department would be to betray the information provided
and quite likely put its provider at risk. Similar considerations could well apply
even in respect of an initial vetting procedure.
93. Is it really sensible, one cannot help wondering, to attempt to force disputes
in such cases as these into the comparative straitjacket of employment tribunal
proceedings. Even if it is, is it sensible to operate in parallel two sets of
proceedings, both with closed procedures and special advocates, one before the
SVAP, the other before the Employment Tribunal. Of course I recognise that the
issues they are determining are not identical. But there must inevitably be some
substantial overlap between them and the effort, time and expense involved in all
this hardly bears thinking about.
94. In my judgment in R (A) v Director of Establishments of Security Service
(at paras 34 and 35) I expressly contemplated that in certain circumstances the
IPT’s exclusive jurisdiction might with advantage be widened. True, I was not
considering a case like the present. I seriously wonder, however, whether it might
not be wise to channel all disputes arising in security vetting cases to a single
tribunal – if not the IPT itself, then a body sharing some at least of its
characteristics. That, however, is a thought for the future – perhaps for
consideration in relation to a Green Paper we are told will be published later this
year with regard to possible ways of resolving, or at least mitigating, the
undoubted problems faced by Government in litigation raising sensitive security
issues.
Page 52
LORD KERR
Introduction
95. On 14 February 2008 the Employment Tribunal dealing with Mr Tariq’s
case sent to the minister a copy of the reasons it proposed to give for making its
order under rule 54 of the First Schedule to the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861). It was
required to do so by rule 10 of the Employment Tribunals (National Security)
Rules 2004 which are contained in Schedule 2 to the 2004 Regulations. The
reasons were amended by the minister (or, more probably, by someone acting on
his behalf) and were eventually issued to the claimant and his advisers in their
amended form on 15 October 2008.
96. The reasons that the tribunal proposed to give Mr Tariq related to the way
in which his case would be dealt with. They purported to explain why he and his
representatives would be excluded from those parts of the proceedings at which
closed evidence was to be given or closed documents were to be considered; why a
special advocate was to be appointed to represent his interests in any part of the
proceedings from which he and his representatives were to be excluded; and why
the proceedings should be held entirely in private. As a means of explaining these
matters to Mr Tariq, the reasons given were, to say the least, not informative. Para
10 encapsulated them. It stated:
“Having read the relevant documents and having heard submissions,
I was satisfied that it was expedient in the interest of national
security to make an order under rule 54 as set out in the separate
document marked as ‘Orders’. I was further satisfied that it would be
in the interest of the claimant if a special advocate were to be
appointed for the matter to be further reviewed, as I am required to
do, at the next case management discussion on 1 May 2008 when not
only can the issues as to what documents should be in the ‘closed’
and ‘open’ bundles and what should be included in the ‘closed’ and
‘open’ witness statements be addressed but also any submissions
from the special advocate in that regard at that case management
discussion in the anticipation that there would have been such an
appointment before then.”
97. Beyond saying that the decisions as to the way in which his case was to be
heard had been taken for reasons of national security, this paragraph conveyed
precisely nothing to the claimant. The paragraphs that had preceded it did little
more. Apart from rehearsing the submissions that had been made by either party,
Page 53
they said virtually nothing. But that did not make them immune from the
minister’s blue pen. In para 5 of the reasons the tribunal had set out (in 5.1, 5.2 and
5.3) the Home Office submissions that the entire proceedings should be held in
private; that Mr Tariq and his representative should be excluded while “closed”
evidence or documents were being considered; and that the tribunal should
consider both the closed evidence and closed documents and that these would be
provided to a special advocate, if one was appointed. In its original form, the
statement of reasons continued at para 6:
“The respondents made this application on the basis that given the
circumstances and the relationship of the claimant to other parties
involved in what was believed to be unlawful activities and the fact
that he might have contact with them that there could be inadvertent
disclosure by him of information that was either sensitive or
classified.”
98. Now it should be noted that on 30 August 2006, the departmental security
officer, Jacqueline Sharland, had met Mr Tariq and his union representative and
she had then explained that the review of Mr Tariq’s security clearance had been
prompted by national security concerns and that these related to Mr Tariq’s
vulnerability. At that meeting Mr Tariq indicated that he understood that the
withdrawal of his security clearance had occurred because his brother had been
arrested. There was no demur from Ms Sharland to this suggestion. Despite this, in
October 2008, more than two years later, the minister (or a civil servant acting on
his behalf) felt that para 6 of the tribunal’s reasons required amendment. He
directed that it should be changed so as to read as follows:
“The respondents made the applications at paras 5.1 – 5.3 above, on
the basis that the material in the closed bundle provided to the
tribunal was sensitive on grounds of national security and
accordingly should not be disclosed to the claimant or his
representative.”
99. So, although Mr Tariq had been informed by the departmental security
officer that his security clearance had been reviewed because he was considered to
be vulnerable, and although he had responded that he believed that that had
happened because his brother had been arrested, the Home Office view was that it
was necessary on national security grounds that he should not be told in October
2008 that others who were believed to be involved in unlawful activities might
receive sensitive or classified information that he might inadvertently impart to
them. It has never been explained why the view was taken that this information
could not be disclosed.
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100. Mystifying though this is, the second change to the statement of reasons
directed by the minister is even more inexplicable. This required the complete
deletion of para 8 of the reasons. This paragraph had done no more than
summarise an argument made on the respondent’s behalf in the presence of Mr
Tariq’s representative, an argument of which, therefore, it must be assumed, he
was fully aware. It had stated:
“The respondents further maintained that due to the nature of the
contact and the place of contact (the claimant’s parents’ home at
which he partially resided with his family during most week-ends), it
was inappropriate for all these matters to be disclosed on a ‘public’
basis and that there were matters properly to be dealt with on a
‘closed’ basis and for the hearing generally to be in private.”
101. Again no explanation for the decision to withhold this information has been
given. It seems likely that its subsequent disclosure and the full revelation of what
para 6 contained was brought about by representations made by the special
advocate appointed to act on Mr Tariq’s behalf. Lord Mance has said that this is an
indication of one of the purposes that a special advocate may serve. It may very
well amount to such an indication but the fact that the intervention of the special
advocate was required to secure the release of material which ought never to have
been withheld is, in my opinion, profoundly troubling. Lord Mance has suggested
that the course of events about the disclosure of this information “offers … a
cautionary message”. It does more than that. It illustrates all too clearly the
dangers inherent in a closed material procedure where the party which asks for it is
also the repository of information on the impact that an open system will avowedly
have on national security.
The common law right to know and effectively challenge the opposing case
102. The right to know and effectively challenge the opposing case has long
been recognised by the common law as a fundamental feature of the judicial
process. In Kanda v Government of Malaya [1962] AC 322, 337 Lord Denning
said:
“If the right to be heard is to be a real right which is worth anything,
it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been
given and what statements have been made affecting him: and then
he must be given a fair opportunity to correct or contradict them.
This appears in all the cases from the celebrated judgment of Lord
Loreburn LC in Board of Education v Rice down to the decision of
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their Lordships’ Board in Ceylon University v Fernando. It follows,
of course, that the judge or whoever has to adjudicate must not hear
evidence or receive representations from one side made behind the
back of the other.”
103. The centrality of this right to the fairness of the trial process has been
repeatedly emphasised. Thus, in In re K (Infants) [1963] Ch 381 Upjohn LJ at pp
405-406 said:
“It seems to be fundamental to any judicial inquiry that a person or
other properly interested party must have the right to see all the
information put before the judge, to comment on it, to challenge it
and if needs be to combat it, and to try to establish by contrary
evidence that it is wrong. It cannot be withheld from him in whole or
in part. If it is so withheld and yet the judge takes such information
into account in reaching his conclusion without disclosure to those
parties who are properly and naturally vitally concerned, the
proceedings cannot be described as judicial.”
104. And in Brinkley v Brinkley [1965] P 75, 78 Scarman J said that “for a court
to take into consideration evidence which a party to the proceedings has had no
opportunity during trial to see or hear, and thus to challenge, explain or comment
upon, seems to us to strike at the very root of the judicial process”. In Pamplin v
Express Newspapers Ltd [1985] 1 WLR 689 at 691 Hobhouse J expressed the
principle in similarly forthright terms:
“The first principle is the principle of natural justice which applies
wherever legal proceedings involve more than one person and one
party is asking the tribunal for an order which will affect and bind
another. Natural justice requires that each party should have an
equivalent right to be heard. This means that if one party wishes to
place evidence or persuasive material before the tribunal, the other
party or parties must have an opportunity to see that material and, if
they wish, to submit counter material and, in any event, to address
the tribunal about the material. One party may not make secret
communications to the court.”
105. Exceptions to the rule that a party to the proceedings must be informed of
every detail of his opponent’s case have, of course, been recognised. But it is
essential to be aware of the starting point from which one must embark on the
inquiry whether the principle of equality of arms (which is such a vital hallmark of
our adversarial system of the trial of contentious issues) may be compromised. As
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a general – indeed, basic – rule, those who are parties to litigation need to know
what it is that their opponent alleges against them. They need to have the chance to
counter those allegations. If that vital entitlement is to be denied them, weighty
factors must be present to displace it. And it is self evident that he who wishes to
have it displaced must show that there are sufficiently substantial reasons that this
should happen. Put shortly, he who thus avers must establish that nothing less will
do.
106. The case made on behalf of the appellant in this appeal has been stigmatised
by the suggestion that it amounts to a claim that the state must accept that it should
pay compensation even in those instances where the claimant is known to be
wholly undeserving but it is impossible to adduce evidence that would establish
this because of national security considerations. The respondent claimed – and the
majority have accepted – that the law will not contemplate such a situation. In my
view, however, this approach carries the danger of allowing the possible
consequences of the implementation of the proper principle to effect a
modification of the principle itself. So, because, it is said, the state, faced with the
dilemma of having to choose between revealing the information on which it relies
to defeat the claim and compromising national security by doing so, would be
forced to settle the case, a better solution must be found. That better solution is that
the state should be allowed to deploy the information on which the claim can be
defeated but be absolved from the need to disclose it to the claimant. This solution,
it is clear, is founded not on principle but on pragmatism. Pragmatic
considerations, of course, have their part to play in the resolution of difficult legal
conundrums but, I suggest, they have no place here.
107. Where, as in this case, the challenged decision is the subject of factual
inquiry or dispute and the investigation of the disputed facts centres on an
individual’s actions or, to bring the matter directly to the circumstances of this
case, his supposed vulnerability, that individual is the critical source of
information needed to discover the truth; in many cases he may be the only source.
If he is denied information as to the nature of the case made either directly against
him or, as seems more likely here, against others whose presumed relationship
with the claimant renders it unsuitable for him to retain security clearance and if he
is thereby forced to speculate on the content of the defendant’s case, no truly
adversarial proceedings are possible. As Upjohn LJ put it in In re K, the
proceedings are not judicial.
108. The withholding of information from a claimant which is then deployed to
defeat his claim is, in my opinion, a breach of his fundamental common law right
to a fair trial. Even if the closed material procedure was compatible with article 6
of the European Convention on Human Rights (and for reasons that I will discuss
presently, I do not believe that it is) this has no bearing on the appellant’s right at
common law to be provided with details of the case against him sufficient to
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enable him to present a reasoned challenge to it. This court’s endorsement of a
principle of non-disclosure whereby a party in civil proceedings may have
withheld from him the allegations forming the basis of the opposing case is a
landmark decision, marking a departure from the common law’s long established
commitment to this basic procedural right. In my view, the removal of that right
may only be achieved by legislation and only then by unambiguous language that
clearly has that effect. In R v Secretary of State for the Home Department, Ex p
Simms [2000] 2 AC 115, dealing with Parliament’s power to legislate contrary to
fundamental human rights, Lord Hoffmann at p 131 said:
“Parliamentary sovereignty means that Parliament can, if it chooses,
legislate contrary to fundamental principles of human rights. The
Human Rights Act 1998 will not detract from this power. The
constraints upon its exercise by Parliament are ultimately political,
not legal. But the principle of legality means that Parliament must
squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous
words. This is because there is too great a risk that the full
implications of their unqualified meaning may have passed
unnoticed in the democratic process. In the absence of express
language or necessary implication to the contrary, the courts
therefore presume that even the most general words were intended to
be subject to the basic rights of the individual. In this way the courts
of the United Kingdom, though acknowledging the sovereignty of
Parliament, apply principles of constitutionality little different from
those which exist in countries where the power of the legislature is
expressly limited by a constitutional document.”
109. Although that statement of principle was made in the context of legislation
overriding human rights, it applies with equal force to legislation affecting other
constitutional rights such as arise in this case. In R (Anufrijeva) v Secretary of
State for the Home Department [2003] UKHL 36, [2004] 1 AC 604, at para 27
Lord Steyn said of Lord Hoffmann’s dictum, “this principle may find its primary
application in respect of cases under the European Convention on Human Rights.
But the Convention is not an exhaustive statement of fundamental rights under our
system of law. Lord Hoffmann’s dictum applies to fundamental rights beyond the
four corners of the Convention.” In my view it is engaged in the present case. And
it therefore seems to me remarkable that a modification of such a fundamental
right can be achieved without the unambiguous legislative provision that would be
required to alter a right arising under the Convention.
110. To recognise that this right continues to exist at common law does not mean
that every time the state wishes to withhold information from a claimant which,
although vital to the defence of the claim, cannot be revealed for reasons of
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national security, it must submit to settlement of the claim. As the experience in
Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786 illustrates, it is
perfectly proper – and, more importantly, principled – to find in such cases that
they cannot be regarded as justiciable because no just trial is possible. Where
insistence upon a fully fair hearing for a claimant will deny the defendant (or
where it is not a party, the state) the protection of its vital interests that the law
should recognise, then a truly fair proceeding is not possible and the trial should be
halted in limine. Lord Mance has said that this is not an option that the law should
readily contemplate. I agree but it seems to me to be a plainly more palatable
course than to permit a proceeding in which one party knows nothing of the case
made against him and which, by definition, cannot be subject to properly informed
challenge. At least in the Carnduff situation both parties are excluded from the
judgment seat. In the state of affairs that will result from the decision of the
majority in this case, one party has exclusive access to that seat and the system of
justice cannot fail to be tainted in consequence.
Article 6
111. Article 6(1) of the European Convention on Human Rights and
Fundamental Freedoms provides:
“In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial
in the interest of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection
of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.”
112. It is well established that the overriding right guaranteed by article 6(1), the
right to a fair trial, is absolute – see Montgomery v HM Advocate [2003] 1 AC 641,
673, Brown v Stott [2003] 1 AC 681, 719 and Dyer v Watson [2002] UKPC D1,
[2004] 1 AC 379 at para 73. But “the constituent rights comprised, whether
expressly or implicitly, within article 6 are not themselves absolute”: Brown v Stott
at 704 per Lord Steyn.
113. One of the implicit constituent rights of article 6 is that there should be
equality of arms between the parties to proceedings. Of this constituent right, Lord
Bingham said in Brown v Stott at 695 that it lay “at the heart of the right to a fair
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trial”. Equality of arms is the means by which a fair adversarial contest may take
place. It requires that there must be an opportunity for all parties to be aware of
and to comment on all the “evidence adduced or observations submitted, with a
view to influencing the court’s decision” – Vanjak v Croatia (Application No
29889/04) (unreported) 14 January 2010, at para 52.
114. Although, as a constituent element of article 6, equality of arms is not an
absolute right, restrictions may only be placed upon it where it is strictly necessary
and proportionate do so. A strong countervailing public interest is required to
satisfy this requirement. Moreover, the restriction must be sufficiently
counterbalanced by appropriate procedures allowed by the judicial authorities.
And the restrictions must not be such as effectively to extinguish the very essence
of the right. These propositions derive from a series of decisions of the European
Court of Human Rights (ECtHR) which constitute “a clear and constant line of
authority” emanating from Strasbourg.
115. One may begin with Tinnelly & Sons Ltd v United Kingdom (1998) 27
EHRR 249. At para 72 the court said:
“72. The Court recalls that article 6(1) embodies the ‘right to a
court’, of which the right of access, that is the right to institute
proceedings before a court in civil matters, constitutes one aspect. …
In this respect, the contracting states enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court. It must be satisfied
that the limitations applied do not restrict or reduce the access left to
the individual in such a way or to such an extent that the very
essence of the right is impaired. Furthermore, a limitation will not be
compatible with article 6(1) if it does not pursue a legitimate aim and
if there is not a reasonable relationship of proportionality between
the means employed and the aim sought to be achieved.”
116. So the very essence of the right must not be impaired and the restriction on
the constituent right must be proportionate. In Rowe and Davis v United Kingdom
(2000) 30 EHRR 1 at para 61 the court said:
“.. as the applicants recognised, the entitlement to disclosure of
relevant evidence is not an absolute right. In any criminal
proceedings there may be competing interests, such as national
security or the need to protect witnesses at risk of reprisals or keep
secret police methods of investigation of crime, which must be
weighed against the rights of the accused. In some cases it may be
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necessary to withhold certain evidence from the defence so as to
preserve the fundamental rights of another individual or to safeguard
an important public interest. However, only such measures
restricting the rights of the defence which are strictly necessary are
permissible under article 6(1). Moreover, in order to ensure that the
accused receives a fair trial, any difficulties caused to the defence by
a limitation on its rights must be sufficiently counterbalanced by the
procedures followed by the judicial authorities.”
117. A precisely similar formula was employed by the court in para 52 of its
judgment in Jasper v United Kingdom (2000) 30 EHRR 441 and in para 52 of
Pocius v Lithuania (Application No 35601/04) (unreported) 6 July 2010.
Significantly, it was also used by the court at para 184 of its judgment in Kennedy
v United Kingdom (Application No 26839/05) (unreported) 18 May 2010 where it
was confirmed that these principles apply with equal force to civil proceedings.
From these statements it is clear that the balancing exercise between, on the one
hand, full access to all the elements of the equality of arms principle and, on the
other, the withholding of evidence on the grounds of national security, must be
conducted on the basis that only such restriction on full access to relevant material
as is absolutely required can be countenanced. And even if that hurdle is
surmounted, it must be shown that the limitation on the rights of the party who is
denied such access is adequately offset by sufficient counterbalancing measures. It
seems to me that measures can only be regarded as sufficient if they either wholly
eliminate the disadvantage that would otherwise have accrued or if they diminish
the difficulties deriving from the non-disclosure of the relevant material to a
condition of insignificance. Thus as the interveners, Justice and Liberty, have put
it, restrictions on untrammelled access to relevant material can only be justified in
a justiciable case where sufficient information about the substantive case which a
party has to meet is disclosed so that he may effectively challenge it. Otherwise,
the limitation on the right to equality of arms can in no sense be regarded as having
been sufficiently counterbalanced.
118. A function of the counterbalancing measures is to ensure that the very
essence of the right is not impaired. It is, I believe, important to have a clear
understanding of what is meant by the essence of the right. If equality of arms lies
at the heart of a fair trial, the essence of the right must surely include the
requirement that sufficient information about the case which is to be made against
him be given to a party so that he can give meaningful instructions to answer that
case. In Secretary of State for the Home Department v MB [2007] UKHL 46,
[2008] AC 440, a case involving a challenge to a non-derogating control order,
Lord Bingham referred to the general acceptance by the House of Lords in R
(Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 that there was “a
core, irreducible, minimum entitlement” for the appellant, as a life sentence
prisoner, to be able effectively to test and challenge any evidence which decisively
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bore on the legality of his detention. That irreducible minimum entitlement also
applied in the case of a control order: see para 43 of MB.
119. The opportunity to know and effectively test the case against him (the core
irreducible minimum entitlement) surely captures the essence of the right. And it
seems to me that the essence of the right cannot change according to the context in
which it arises. Whether a hearing should be conducted in private or in open
session; whether information about the case against an individual should be
provided by way of full disclosure or by redacted statements or in the form of a
summary or gist; whether witnesses should be anonymised – all of these are
variables to which recourse may be had in order to reflect the context in which the
requirements of article 6 must be examined. But if the essence of the right is to be
regarded (as I believe it must be) as the indispensable and necessary attributes of
the right as opposed to those which it may or may not have, its essence cannot alter
according to the circumstances in which it falls to be considered.
120. Para 217 of the European Court of Human Rights’ judgment in A v United
Kingdom (2009) 49 EHRR 625 has been cited by Lord Mance as an example of the
emphasis given by the court to the context in which the requirements of the right
were being considered. That case involved a challenge to the decision of the Home
Secretary to certify that each of the applicants should be detained because he
reasonably believed that their presence in the United Kingdom posed a threat to
national security. As it seems to me the only relevant part of para 217 is contained
in the following passage:
“In view of the dramatic impact of the lengthy – and what appeared
at that time to be indefinite – deprivation of liberty on the applicants’
fundamental rights, article 5(4) must import substantially the same
fair trial guarantees as article 6(1) in its criminal aspect”
121. This says nothing about the essence of the right to equality of arms. It
merely (but unsurprisingly) confirms that if one’s liberty is to be deprived on foot
of the order of the Secretary of State, the same guarantees as are available to
defendants in a criminal trial should be extended to those who were the subject of
detention orders.
122. Lord Mance also expressed agreement with the decision of the Court of
Appeal in R(AHK) v Secretary of State for the Home Department (Practice Note)
[2009] EWCA Civ 287; [2009] 1 WLR 2049 where, according to Lord Mance’s
analysis, it was held that a claim for judicial review of the refusal of an application
for British citizenship could be distinguished from the requirements prescribed by
A v United Kingdom on the ground that the latter case’s focus was on detention. I
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do not agree that the AHK case distinguished A v United Kingdom or, at least, that
it suggested (contra the decision in A v UK), that abrogation of the right of a
claimant to know the essential elements of the case to be made against him was
permissible. The AHK case was principally concerned with the question whether a
special advocate should be appointed. In the list of principles to be applied in cases
where the Secretary of State has decided that the reasons for refusing British
citizenship could not be fully disclosed Sir Anthony Clarke MR at para 37 (iv) (d)
said:
“All depends upon the circumstances of the particular case, but it is
important to have in mind the importance of the decision from the
claimant’s point of view, the difficulties facing the claimant in
effectively challenging the case against him in open court and
whether the assistance of a special advocate will or might assist the
claimant in meeting the Secretary of State’s case and the court in
arriving at a fair conclusion.”
123. Underlying this statement is the acknowledgment that the claimant must be
assisted in meeting the Secretary of State’s case. There is no reason to suppose that
the Court of Appeal would have endorsed a procedure where the claimant was
effectively prevented from knowing and meeting the essential case made against
him. At a theoretical level it is possible that advocates retained to consider material
that cannot be disclosed to a claimant can supply the vital ingredient of ensuring
that the case made against the claimant is effectively met. In such circumstances
the essence of the article 6 right is not lost. But AHK is not authority for the
proposition that where that indispensable requirement cannot be fulfilled and the
claimant is prevented from presenting a fully informed opposition to the case made
against him, no violation of article 6 arises because the consequences for the
claimant are less serious than the deprivation of his liberty.
124. It is, I believe, crucial to a proper understanding of ECtHR jurisprudence in
this area that the essence of the right under article 6 is that a party is entitled to
know and effectively challenge the case made against him. Equality of arms, or a
properly set adversarial contest, requires that both parties have equal, or at least a
sufficient, access to the material that will be deployed against them. The
adversarial contest sets the context and the adversarial contest arises in relation to
article 6 rights as opposed to other Convention rights. Thus cases such as Leander
v Sweden (1987) 9 EHRR 433 (which was concerned with alleged violations of
articles 8, 10 and 13) and Esbester v United Kingdom (1998) 18 EHRR CD72
(which dealt with claims under article 8 and 13) are of little assistance in
determining the requirements of the equality of arms principle under article 6.
Equality of arms did not arise in these cases. No adversarial contest was engaged.
Whether it is legitimate to withhold information in an article 8 or an article 10
context has nothing to do with the propriety of its non-disclosure where parties are
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seeking a resolution of competing cases from a properly informed and impartial
tribunal. Articles 8 and 10 are qualified rights. Interference with those rights may
be justified on grounds specified in the articles. By contrast, article 6 is not subject
to exemption from the effect of interference.
125. Kennedy v United Kingdom involved complaints made by the applicant to
the Investigatory Powers Tribunal (IPT) that his communications were being
intercepted. The applicant had sought specific directions regarding the conduct of
the proceedings in order to ensure the protection of his Convention rights under
article 6 (1). In particular, he asked that his arguments and evidence be presented
at an oral hearing; that all hearings be conducted in public; that there be mutual
disclosure and inspection between the parties of all witness statements and
evidence upon which parties sought to rely and exchange of skeleton arguments in
relation to planned legal submissions; that evidence of each party be heard in the
presence of the other party or their legal representatives, with oral evidence being
open to cross-examination by the other party; that any opinion received from a
commissioner be disclosed to the parties; and that, following its final
determination, the IPT state its findings and give reasons for its conclusions on
each relevant issue. IPT had held that the applicant’s proceedings before that
tribunal engaged article 6. That finding was somewhat diffidently contested before
ECtHR, the government contending that there was no ‘civil right’ involved. It was
not contended, as it might well have been, that article 6, according to the court’s
constant jurisprudence, did not apply to cases of surveillance. ECtHR proceeded
on the assumption that article 6 did apply.
126. It is significant that the court’s judgment is largely preoccupied with a
consideration of the various specific claims made by the applicant about how the
proceedings should be conducted. The question of providing him with sufficient
information in the form of a gist or summary to meet the case against him did not
feature in the list of those claims. The question of supplying redacted documents is
discussed, however, and the court’s decision seems largely to have been influenced
by the argument advanced on behalf of the government that it was simply not
possible to produce the information that the applicant sought because national
security would inevitably be compromised. That stance is entirely consistent with
the view that surveillance cases do not engage article 6. It is surprising that more
was not made of this by the government and that the court did not address the issue
directly. If it had done and if it had followed its own constant jurisprudence, the
anomaly, which I believe the decision in Kennedy represents, would have been
avoided.
127. In Klass v Federal Republic of Germany (1978) 2 EHRR 214 at para 75
ECtHR said this about secret surveillance:
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“As long as it remains validly secret, the decision placing someone
under surveillance is thereby incapable of judicial control on the
initiative of the person concerned, within the meaning of article 6; as
a consequence, it of necessity escapes the requirements of that
article.”
128. The logic of this position is inescapable. The entire point of surveillance is
that the person who is subject to it should not be aware of that fact. It is therefore
impossible to apply article 6 to any challenge to the decision to place someone
under surveillance, at least until notice of termination of the surveillance has been
given. This approach has been consistently applied by the court. So for instance
in Rotaru v Romania (2000) 8 BHRC 449 at para 69 the court said “where secret
surveillance is concerned, objective supervisory machinery may be sufficient as
long as the measures remain secret. It is only once the measures have been
divulged that legal remedies must become available to the individual.” It is
precisely because the fact of surveillance must remain secret in order to be
efficacious that article 6 cannot be engaged. It appears to me, therefore, that the
decision in Kennedy ought to have been made on the basis that article 6 was not
engaged because the issues that the case raised were simply not justiciable.
129. That the decision is out of line with the established jurisprudence of the
court is perhaps best exemplified by contrasting it with the approach of the Grand
Chamber in A v United Kingdom as applied by the House of Lords in Secretary of
State for the Home Department v AF (No 3) [2010] 2 AC 269. At para 59 Lord
Phillips said this about the ratio in A v United Kingdom:
“… I am satisfied that the essence of the Grand Chamber’s decision
lies in para 220 and, in particular, in the last sentence of that
paragraph. This establishes that the controlee must be given
sufficient information about the allegations against him to enable
him to give effective instructions in relation to those allegations.
Provided that this requirement is satisfied there can be a fair trial
notwithstanding that the controlee is not provided with the detail or
the sources of the evidence forming the basis of the allegations.
Where, however, the open material consists purely of general
assertions and the case against the controlee is based solely or to a
decisive degree on closed materials the requirements of a fair trial
will not be satisfied, however cogent the case based on the closed
materials may be.”
130. Whilst Lord Phillips at para 65 implied that the Grand Chamber’s decision
(that non-disclosure cannot deny a party knowledge of the essence of the case
against him) might apply only where the consequences for an individual were as
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severe as those normally imposed under a control order, there are indications in his
and other speeches that the principle is of general application. In particular, Lord
Phillips rejected the suggestion that there should be a different standard where the
control order did not amount to detention – para 63 and at para 64 he said this:
“The best way of producing a fair trial is to ensure that a party to it
has the fullest information of both the allegations that are made
against him and the evidence relied upon in support of those
allegations. Where the evidence is documentary, he should have
access to the documents. Where the evidence consists of oral
testimony, then he should be entitled to cross examine the witnesses
who give that testimony, whose identities should be disclosed. Both
our criminal and our civil procedures set out to achieve these aims.
In some circumstances, however, they run into conflict with other
aspects of the public interest, and this is particularly the case where
national security is involved. How that conflict is to be resolved is a
matter for Parliament and for government, subject to the law laid
down by Parliament. That law now includes the Convention, as
applied by the HRA. That Act requires the courts to act compatibly
with Convention rights, in so far as Parliament permits, and to take
into account the Strasbourg jurisprudence. That is why the clear
terms of the judgment in A v United Kingdom resolve the issue raised
in these appeals.”
131. The views of Lord Hope were equally clear and comprehensive. At para 83
he said:
“The approach which the Grand Chamber has adopted is not, as it
seems to me, at all surprising. The principle that the accused has a
right to know what is being alleged against him has a long pedigree.
As Lord Scott of Foscote observed in A v Secretary of State for the
Home Department [2005] 2 AC 68, para 155, a denunciation on
grounds that are not disclosed is the stuff of nightmares. The rule of
law in a democratic society does not tolerate such behaviour. The
fundamental principle is that everyone is entitled to the disclosure of
sufficient material to enable him to answer effectively the case that is
made against him.”
132. Lady Hale in para 103 said that Strasbourg had now “made it entirely clear
what the test of a fair hearing is”. The test was whether the controlled person had
had the possibility to challenge effectively the allegations made against him. He
had to have sufficient information about those allegations to be able to give
effective instructions to his special advocate. If the majority in this appeal are
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right, however, the test of a fair hearing in Mr Tariq’s case is different. He need
not be given sufficient information about the allegations against him to challenge
them effectively or to give effective instructions to his special advocate. For my
part I cannot understand why this should be so.
133. The result of the decision of the majority is to create a different class of
case from that where what Lord Brown has helpfully described as “A-type
disclosure” must be given. The eligibility criteria for inclusion in this privileged
group are not clear. Certainly, the class is not confined to those whose liberty is at
stake, as the speeches in AF (No 3) make clear. And, presumably, it must also
include freezing order cases – Kadi v Council of the European Union Joined Cases
C-402/05 P and C-415/05 P [2009] AC 1225, as applied by the European General
Court in Kadi II Case T-85/09 [2011] 1 CMLR 697. If A-type disclosure is
required in challenges to freezing orders, does it extend to property rights more
generally? If it does, why should property rights be distinguished from loss of
employment cases? After all, loss of livelihood may be just as devastating as
having one’s assets frozen.
134. It seems to me that there is no principled basis on which to draw a
distinction between the essence of the right to a fair trial based on the nature of the
claim that is made. A fair trial in any context demands that certain indispensable
features are present to enable a true adversarial contest to take place. That
conclusion is reflected in the later decision of ECtHR of Užukauskas v Lithuania
(Application No 16965/04) (unreported) 6 July 2010. Lord Mance has sought to
distinguish this case on the basis that the procedure adopted was contrary to
national law. But that consideration was in no sense central to the court’s
reasoning. On the contrary, the observation (at para 48) that “Lithuanian law and
judicial practice provide that such information may not be used as evidence in
court against a person unless it has been declassified, and that it may not be the
only evidence on which a court bases its decision” was made in order to draw a
contrast with the view that documents which constitute state secrets may only be
disclosed to persons who possess the appropriate authorisation. It is quite clear that
the violation of article 6 which the court held to have occurred was based on
conventional ECtHR principles. This much is evident from para 51 where the court
said;
“In conclusion, therefore, the Court finds that the decision-making
procedure did not comply with the requirements of adversarial
proceedings or equality of arms, and did not incorporate adequate
safeguards to protect the interests of the applicant. It follows that
there has been a violation of article 6(1) in the present case.”
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135. The unavoidable result from this case is that Strasbourg has again made it
entirely clear what the test for a fair hearing is where someone seeks to challenge a
decision that he should be removed from a firearms register. He is entitled to know
the reasons that this has happened in order to be able to effectively challenge them.
If that is so, why should someone who has been dismissed from his employment
be in a less advantageous position?
Conclusions
136. I have concluded that the Court of Appeal was correct in finding that where
article 6 is engaged, it is necessary for a party to proceedings to be provided with
sufficient information about the allegations against him to allow him to give
effective instructions to his legal representatives and, if one has been appointed,
the special advocate so that those allegations can be effectively challenged. I
would therefore dismiss the appeal by the Home Office.
137. For the reasons given by Lord Mance, with which I agree, I would hold that
the closed material procedure provided for in the Employment Tribunal legislative
scheme is not in principle incompatible with article 6 and EU law. I would
therefore also dismiss the cross appeal.
LORD DYSON
138. I agree that for the reasons given by Lord Mance the Court of Appeal was
correct to hold that the closed material procedure provided for in the Employment
Tribunal legislative scheme, including its provision for the appointment of special
advocates is in principle compatible with article 6 of the European Convention on
Human Rights (“ECHR”) and EU law. I also agree that the Court of Appeal was
wrong to find that, in all cases in which article 6 (civil) is engaged, it is necessary
for an individual to be provided with sufficient information about the allegations
against him (“the gist”) to enable him to give effective instructions to his legal
representatives and the special advocate (where one has been appointed) in relation
to those allegations. It is on this second question that I wish to add some words of
my own.
General observations about closed procedures
139. The article 6 right to a fair trial is absolute: see, for example, per Lord Hope
in Dyer v Watson [2002] UKPC D1 [2004] 1 AC 379 at para 73. In principle, a fair
trial presupposes adversarial proceedings and equality of arms. Thus, for example,
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in Vanjak v Croatia (Application No 29889/04) (unreported) 14 January 2010, at
para 52, the European Court of Human Rights said:
“….. independently of whether the case is a civil, criminal or
disciplinary one, the right to adversarial proceedings has to be
complied with. That right means in principle the opportunity for the
parties to court proceedings falling within the scope of article 6 to
have knowledge of and comment on all evidence adduced or
observations submitted, with a view to influencing the court’s
decision.”
140. But the constituent elements of a fair process are not absolute or fixed: see
Brown v Stott [2003] 1 AC 681 at 693D-E per Lord Bingham; 719G-H per Lord
Hope; and 727H per Lord Clyde. This was re-affirmed by the ECtHR in relation to
article 5(4) in A v United Kingdom (2009) 49 EHRR 625 at para 203: “The
requirement of procedural fairness under article 5(4) does not impose a uniform,
unvarying standard to be applied irrespective of the context, facts and
circumstances”.
141. Moreover, it has been recognised by the ECtHR that there are
circumstances where a limitation on what would otherwise be a general rule of
fairness is permissible. Thus in Rowe and Davis v United Kingdom (2000) 30
EHRR 1, at para 61, the European Court of Human Rights said:
“…the entitlement to disclosure of relevant evidence is not an
absolute right. In any criminal proceedings there may be competing
interests, such as national security or the need to protect witnesses at
risk of reprisals or keep secret police methods of investigation of
crime, which must be weighed against the rights of the accused. In
some cases it may be necessary to withhold certain evidence from
the defence so as to preserve the fundamental rights of another
individual or to safeguard an important public interest. However,
only such measures restricting the rights of the defence which are
strictly necessary are permissible under article 6(1). Moreover, in
order to ensure that the accused receives a fair trial, any difficulties
caused to the defence by a limitation on its rights may be sufficiently
counterbalanced by the procedures followed by the judicial
authorities.”
142. Prima facie, a closed material procedure denies the party who is refused
access to the closed material the right to full and informed participation in
adversarial proceedings and to that extent is inconsistent with the principle of
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equality of arms. There are two factors which the Secretary of State says are
sufficient to counterbalance the effects of the closed material procedure in the
present case. The first is that there is scrutiny by an independent court (the
Employment Tribunal) fully appraised of all relevant material and experienced in
dealing with discrimination cases. The second is the testing by a special advocate
of the Home Office’s case in closed session.
143. But are these factors sufficient in circumstances where the gist of the Home
Office case is not disclosed to the claimant? How can the special advocate
represent the claimant’s interests if the claimant is unable to give full instructions
to him? The answer to these questions in the context of proceedings involving the
liberty of the subject is clear. If the special advocate is unable to perform his
function in any useful way unless the detainee is provided with sufficient
information about the allegations to enable him to give effective instructions to the
special advocate, then there must be disclosure to the detainee of the gist of that
information: see A v United Kingdom at para 220 and, in the context of control
orders, Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28,
[2010] 2 AC 269. In such a case, there must be disclosure, regardless of how
important the competing national interest may be in favour of withholding the
information. The consequence of this will inevitably be that in some cases the
prosecuting or detaining authorities will be faced with the invidious choice of
disclosing sensitive information or risking losing the case.
144. But what is the position in cases which do not involve the liberty of the
subject? For the reasons given by Lord Mance and Lord Brown, I agree that
neither A v United Kingdom nor AF (No3) decides this question. Mr Allen QC and
Mr Howell QC submit that the reasoning in A v United Kingdom is not limited to
cases involving the liberty of the subject and should be applied to civil claims too.
They submit that, properly understood, the Strasbourg jurisprudence does not
support the proposition that a different approach may be adopted to the problem in
civil claims. They also say that to distinguish between the requirements of article 6
on the basis of a classification of the type of case involved is unprincipled and will
give rise to uncertainty and confusion.
145. But it is clear from para 203 of A v United Kingdom itself that article 6 does
not require a uniform approach to be adopted in all classes of case. In Kennedy v
United Kingdom (Application No 26839) (unreported) 18 May 2010, the European
Court of Human Rights said that the entitlement to disclosure of relevant evidence
is not an “absolute right” (para 187); the character of the proceedings may justify
dispensing with an oral hearing (para 188); and the extent to which the duty to give
reasons applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case (para 189). I therefore
agree with what Sir Anthony Clarke MR said when giving the judgment of the
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court in R(AHK) v Secretary of State for the Home Department (Practice Note)
[2009] EWCA Civ 287, [2009] 1 WLR 2049 at para 45:
“The above analysis shows that the European Court of Human
Rights considers each class of case separately. The issues in this
class of case are a far cry from the issues that arise in the criminal
cases discussed by the court in A v United Kingdom 19 February
2009. Moreover, without in any way minimising the effect of being
refused British citizenship, the consequences of a deprivation of (or
even interference with) liberty are plainly very much more serious.
In these circumstances we do not think that the approach of the court
in criminal cases or in cases of deprivation or interference with
liberty can or should be applied directly to this class of case. That is
not to say that, as explained earlier, each individual is not entitled to
a fair hearing of his application for judicial review. ”
146. Nevertheless, I would accept that the general rule is that an applicant
should enjoy the full panoply of article 6 rights, including full disclosure of all
relevant material and that any limitation on the ordinary incidents of article 6
requires careful justification.
147. In deciding how to strike the balance between the rights of the individual
and other competing interests, the court must consider whether scrutiny by an
independent court and the use of special advocates are sufficient to counterbalance
the limitations on the individual’s article 6 rights. In many cases, an individual’s
case can be effectively prosecuted without his knowing the sensitive information
which public interest considerations make it impossible to disclose to him. For
example, in a discrimination claim such as that of Mr Tariq, the central issue may
well not be whether the underlying security concerns are well founded, but rather
whether the decision-making process was infected by discrimination. As Mr Eadie
QC points out, Mr Tariq’s appeal is not against the assessments or conclusions of
the Home Office as to the withdrawal of his security clearance. SVAP provides the
expert forum for considering such issues. It was not for the Employment Tribunal
to determine whether, for example, it believed or did not believe Mr Tariq’s
assertions about the nature of his relationships with persons involved in or
associated with terrorist activities. Thus in the conduct of a discrimination claim,
the special advocate and indeed the judge can to a considerable extent test the case
of the alleged discriminator without the input of the claimant.
The surveillance/security vetting cases
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148. Lord Mance has referred at para 68 to what he describes as “the clear line of
jurisprudence” culminating in the Court’s decision in Kennedy which demonstrates
that, in civil cases, it is not necessary to provide the gist of information which the
interests of national security require to be kept secret. I think that it is necessary to
examine the authorities with some care to see precisely what these cases do
establish. In the absence of special circumstances, our courts should follow any
“clear and constant jurisprudence of the European Court of Human Rights”: see R
(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport
and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 26.
149. The first case to note is Klass v Federal Republic of Germany (1978) 2
EHRR 214. This involved a challenge to legislation which permitted the
authorities to open and inspect mail and listen to telephone conversations in order
to protect, inter alia, against imminent dangers threatening the existence or the
security of the state. The challenge was based on an alleged breach of articles 6, 8
and 13 of the European Convention on Human Rights. At para 75, the European
Court of Human Rights said : “As long as it remains validly secret, the decision
placing someone under surveillance is thereby incapable of judicial control on the
initiative of the person concerned, within the meaning of article 6; as a
consequence, it of necessity escapes the requirements of that article”.
150. The cases of Leander v Sweden (1987) 9 EHRR 433 and Esbester v United
Kingdom (1993) 18 EHRR CD72 are discussed by Lord Mance at paras 28 to 32
above. They can be considered together, although at first sight it may seem odd to
refer to them at all since they are not article 6 cases. The claim in Leander was
brought under articles 8, 10 and 13 and in Esbester under articles 8 and 13. I
accept that what may be a proportionate and justified interference with a person’s
rights under article 8 may not correspond precisely with what may be a strictly
necessary and sufficiently counterbalanced invasion of his right to a fair trial under
article 6. Moreover, it is right to point out that Leander and Esbester were referred
to by the European Court of Human Rights in Kennedy, but only in its discussion
of the claims under articles 8 and 13: see paras 122, 152, 195 and 197. The section
in Kennedy which deals with article 6 does not refer to either of these authorities.
Mr Eadie accepts that Leander and Esbester did not concern article 6. He relies on
them as being directly analogous to the present case, relating to security vetting in
an employment context. Issues of fairness were central to the issues arising under
articles 8 and 10 and the right to an effective remedy under article 13. The
European Court of Human Rights found that the vetting systems in those cases
were compatible with article 8 and upheld the right of the state not to disclose the
reasons for the rejection of the applicant’s application for employment as a result
of a security vetting process.
151. Whereas Klass is a case where it seems to have been held that article 6 did
not apply at all and Leander and Esbester are not article 6 cases, there can be no
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doubt that Kennedy is an article 6 case. In Kennedy (which was decided after the
decision of the Court of Appeal in the present case), the applicant complained
about an alleged interception of his communications, claiming that it was a
violation of his article 8 rights. He also complained that the hearing before the
Investigatory Powers Tribunal (“IPT”) was not attended by adequate safeguards as
required under article 6 and that, as a result, he had been denied an effective
remedy under article 13. Lord Mance has set out the relevant passages of the
judgment at paras 34 and 35 above. The submissions of the parties summarised at
paras 180 to 183 of the judgment were directed to the question of what article 6
required. It is of note that the Government submitted that the scope of the article 6
guarantees in that case “should be in harmony with the Court’s approach to
judicial control under article 8”.
152. The court’s assessment at paras 184 to 191 was explicitly on the basis of the
application of article 6. In contrast with para 75 of Klass, the court did not say that
the case “escapes the requirements of [article 6]”. Thus at para 186, the court
emphasised that the proceedings related to secret surveillance measures and that
there was therefore a need to keep secret sensitive and confidential information.
The court continued: “this consideration justifies restrictions in the IPT
proceedings. The question is whether the restrictions, taken as a whole, were
disproportionate or impaired the very essence of the applicant’s right to a fair
trial.” This is the classic approach to article 6. The court’s conclusion at para 190
was that the restrictions on the procedure before the IPT did not violate the
applicant’s right to a fair trial. In reaching this conclusion, the court took into
account the breadth of access to the IPT (an independent court) enjoyed by those
complaining about interception and the absence of any evidential burden to be
overcome in order to lodge an application with the IPT. It concluded:
“In order to ensure the efficacy of the secret surveillance regime, and
bearing in mind the importance of such measures to the fight against
terrorism and serious crime, the Court considers that the restrictions
on the applicant’s rights in the context of the proceedings before the
IPT were both necessary and proportionate and did not impair the
very essence of the applicant’s article 6 rights.”
153. Mr Allen and Mr Howell submit that Kennedy should be understood as a
decision that, so long as the very subject-matter of the dispute must justifiably
remain secret, is effectively non-justiciable and the substantive protections that
article 6 contains cannot be applied in substance to its resolution. In other words,
they submit that the decision in Kennedy should be analysed as an application of
para 75 of Klass. If, however, the court had intended to adopt this approach, it
would have said so. Instead, it clearly purported to apply article 6.
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154. Kennedy is a striking decision. But for the security issues raised in the case,
it is surely inconceivable that the court would have concluded that the restrictions
on the applicant’s rights before the IPT (a completely closed procedure without
even the protection of a special advocate) were necessary and proportionate and
did not impair the very essence of the applicant’s article 6 rights. The crucial
reason for this conclusion was that the restrictions on the applicant’s rights were
necessary “in order to ensure the efficacy of the secret surveillance regime”.
Kennedy was a case about a secret surveillance regime by interception of his
communications. This same language was used by the court in Klass at para 58 to
justify the interference with the applicant’s article 8 rights in that case (another
interception of communications case): “the fact of not informing the individual
once surveillance has ceased cannot itself be incompatible with this provision,
since it is this very fact which ensures the efficacy of the ‘interference’”. The same
reasoning appears in the security vetting cases of Leander and Esbester. Thus, for
example, at para 66 of Leander, the court said that the very fact that the
information released to the military authorities was not communicated to Mr
Leander “cannot by itself warrant the conclusion that the interference was not
‘necessary in a democratic society in the interests of national security’, as it is the
very absence of such communication which, at least partly, ensures the efficacy of
the personnel control procedure”. In support of this proposition, the court referred
to para 58 of Klass. There is similar reasoning in the Commission’s decision in
Esbester.
155. In my view, the significance of Kennedy is that it is a decision explicitly
based on an application of article 6 which adopted the same approach as that which
was taken by the court in applying articles 8 and 13 in Leander and by the
Commission in Esbester. This provides clear support for the submission of Mr
Eadie that, for the purposes of the issues that arise in the present case, there is no
material difference between articles 8 and 13 on the one hand and article 6 on the
other. I do not consider that, if the complaints in Leander and Esbester had been
based on article 6, the outcome in these cases would have been different.
156. The other point to emphasise is that these cases show that there is no
material difference between surveillance cases (such as Klass and Kennedy) and
security vetting cases (such as Leander and Esbester). In the former, restrictions
on an individual’s right to disclosure and participation in a hearing will be
considered necessary and proportionate if they are required “in order to ensure the
efficacy of the secret surveillance regime”. In the latter, the restrictions will be
considered necessary and proportionate if they are required in order to ensure “the
efficacy of the personnel control procedure”.
157. Mr Allen and Mr Howell submit that the limited significance of Leander,
Esbester and Kennedy is demonstrated by the decision of the ECtHR in
Užukauskas v Lithuania (Application No 16965/04) (unreported) 6 July 2010.
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Lord Mance has set out the facts at para 37 above. I find this a difficult decision to
interpret. On the one hand, the court approached the matter in conventional article
6 terms: see para 46 where it noted that (i) the entitlement to disclosure of relevant
evidence is not an absolute right; (ii) it may be necessary to withhold certain
evidence to safeguard an important public interest; but (iii) only such measures
restricting the rights of the defence which are strictly necessary are permissible and
there must be sufficient counterbalancing. At para 48 the court referred to the fact
that, according to Lithuanian law and judicial practice, secret information may not
be used as evidence in court unless it has been declassified and it may not be the
only evidence on which a court bases its decision. It is not clear to me to what
extent the court based its conclusion that there had been a breach of article 6 on the
fact that use of the secret material against the applicant (which was of “decisive
importance” to his case) was contrary to Lithuanian law. But I accept that on the
face of it, this is an article 6 decision which does not sit easily with the
surveillance/vetting procedure cases to which I have referred. There is no reference
to them. There is no weighing of the national interest in the protection of the
community against crime against the general right to adversarial proceedings. For
these reasons and because it is unclear to what extent the position under Lithuanian
law influenced the decision, I agree with Lord Mance that this decision does not
cast doubt on the approach adopted in the surveillance/security vetting cases.
Unlike Lord Mance, however, I doubt whether the fact that there is no procedure
under Lithuanian law for the use of a special advocate to consider closed material
is of significance, since, as was pointed out by the European Court of Human
Rights in Kennedy at para 187, the procedure before the IPT did not permit the use
of special advocates either.
158. In my judgment, these decisions show that there is a clear line of authority
to support the proposition that, in surveillance and security vetting cases, an
individual is not entitled to full article 6 rights if to accord him such rights would
jeopardise the efficacy of the surveillance or security vetting regime itself. On the
material shown to us, the line of authority may not be very long, but in my view it
is sufficiently clear that it should be followed by our courts. The cases show, in
particular, that there is no right to be given the gist of relevant information if and
to the extent that this would jeopardise the efficacy of the surveillance or security
vetting regime.
The present case
159. I have no doubt that article 6 does not require that Mr Tariq should be given
the gist of information which would damage or jeopardise national security. First,
and above all, this is a security vetting case and in such a case article 6 does not
require gisting if and in so far as it would jeopardise the efficacy of the personnel
control procedure. That is a sufficient reason for allowing the Home Office appeal.
There is no sensible basis for distinguishing the present case from Leander and
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Esbester. In those cases (which concerned a complaint about the manner in which
security vetting was conducted where the applicant was applying for a sensitive
post), article 8 did not require disclosure of the security material. In the present
case, the complaint is about the decision not to allow a person to remain in a post
where security vetting was employed. There can be no distinction in principle
between the two cases. A related point is that in all cases where security clearance
is sought, it is because the individual has volunteered to undergo the clearance
process for the purpose of doing (or continuing to do) the job that he is employed
to do. He must be taken to know that checks will be made that may produce
material that cannot be shown to him. As Lord Hope points out, he is a volunteer.
160. I would add the following points which reinforce the Home Office case.
First, the subject-matter of the claim is a claim for damages for alleged
discrimination. I do not wish to underestimate the importance of the right not to be
subjected to discrimination. But on any view, discrimination is a less grave
invasion of a person’s rights than the deprivation of the right to liberty. Secondly,
the issues in the present case are such that the presence of an independent court
and a special advocate are likely to go a long way to making up for the fact that Mr
Tariq will be unable fully to participate in the proceedings. As I have explained at
para 147 above, there is likely to be only limited (if any) scope for Mr Tariq to be
able to give instructions to the special advocate which are necessary to enable her
to test the Home Office case effectively.
Conclusion
161. I would, therefore, allow the Home Office’s appeal primarily on the ground
that this case concerns a decision taken in the context of security vetting. In other
classes of civil case which are outside the surveillance/security vetting context, the
balance between the individual’s article 6 rights and other competing interests may
be struck differently. It is said that this gives rise to undesirable uncertainty. But
much of the content of the European Convention on Human Rights is about
striking balances. This is sometimes very difficult and different opinions can
reasonably be held. As a consequence, outcomes are sometimes difficult to predict.
This is inevitable. But it is not a reason for striving to devise hard and fast rules
and rigid classifications. It is, however, at least possible to say that, in principle,
article 6 requires as much disclosure as possible. It is very easy for the state to play
the security card. The court should always be astute to examine critically any claim
to withhold information on public interest grounds.
162. For the reasons that I have given, I would allow the Home Office appeal. I
would also dismiss the appeal of Mr Tariq for the reasons given by Lord Mance.
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LORD PHILLIPS, LADY HALE AND LORD CLARKE
163. I agree that, for the reasons given by Lord Hope, Lord Brown, Lord Mance
and Lord Dyson, the appeal of the Home Office should be allowed and that the
cross-appeal of Mr Tariq should be dismissed.
LORD RODGER
164. Lord Rodger, who died before judgment was given in this case, had
indicated that he agreed with the judgments of Lord Mance and Lord Brown.
