MR K TARIQ v THE HOME OFFICE [2009] UKEAT 0168_09_1610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0168_09_1610Case No Appeal No. UKEAT/0168/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K TARIQAPPELLANTTHE HOME OFFICERESPONDENT
Before
Mr Justice Keith Mr P GammonDate 16 October 2009
[1]APPEARANCES For the Appellant MR ROBIN ALLEN (One of Her Majesty's Counsel) and MR PAUL TROOP (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors S50-52 Chancery Lane London WC2A 1HL MISS JUDITH FARBEY (of Counsel) Instructed by: The Special Advocates' Support Office One Kemble Street London WC2B 4TS For the Respondent MR JAMES EADIE (One of Her Majesty's Counsel) and MS KATE GRANGE (of Counsel) Instructed by: The Treasury Solicitor One Kemble Street London WC2B 4TS SUMMARY PRACTICE AND PROCEDURE Disclosure HUMAN RIGHTS(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules of Procedure, is not incompatible with a claimant's right under Art. 6 of the European Convention on Human Rights to a fair hearing of his claim for discrimination, or his right under European Community law to an effective judicial remedy for his discrimination. Whether the withholding of materials from a claimant will render the hearing unfair will depend on the facts of each particular case, but Art 6 requires the claimant 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.(2) The Employment Tribunal did not err in concluding that it should decide whether it was permissible to hear closed evidence before hearing any of the open evidence: Coles v Barracks distinguished.(3) In deciding whether to order further materials to be disclosed to the claimant to make the hearing of the claim Art. 6 compliant, the Employment Tribunal should first be informed what the parties' open cases are, and then be informed in closed session what the respondent's case is: Farooq v Commissioner of the Police for the Metropolis distinguished. THE HONOURABLE MR JUSTICE KEITH Introduction This appeal is all about the extent to which, if at all, an employment tribunal can receive evidence which is not disclosed to the employee to whom it relates on the basis that it could compromise national security if it was disclosed. The Central London Employment Tribunal held that an employment tribunal can receive such evidence, and the employee now appeals against that ruling to the Employment Appeal Tribunal. The relevant facts[2]The Claimant, Kashif Tariq, is a Muslim of Pakistani origin. He has been employed by the Respondent, the Home Office, as an immigration officer in what is now the Immigration and Nationality Agency since 21 April 2003. In that capacity he was required to have security clearance to the appropriate level since he had access to sensitive information.[3]On 10 August 2006, Mr Tariq's brother and his cousin were arrested in the course of an investigation into a suspected plot to mount a terrorist attack on transatlantic airplanes. Mr Tariq's brother was subsequently released without charge, but his cousin was convicted on 8 September 2008 of conspiracy to murder, having already pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance. Mr Tariq was questioned by the police at the time of these arrests. There was no information to suggest that Mr Tariq had himself been involved in the plot, but there were concerns that he could be vulnerable to attempts to make him abuse his position as an immigration officer – for example, to make him reveal whether particular individuals had been identified as suspected terrorists or smuggle prohibited items airside. He was therefore informed on 18 August 2006 that consideration was being given to the withdrawal of his security clearance, and the following day he was suspended from duty pending a review of his security clearance.[4]On 20 December 2006, all levels of security clearance were withdrawn from Mr Tariq. On 16 January 2007, he lodged an internal appeal against that decision, but on 9 August 2007, the Permanent Secretary to the Home Office, Sir David Normington, dismissed the appeal. The Home Office says that concerns about Mr Tariq's lack of honesty and candour were central to that decision. A further appeal to the Security Vetting Appeals Panel was lodged some time ago, but the hearing of that appeal has not yet taken place. In the meantime, he remains on suspension. It is said that although he is being paid his basic wage, he has not been able to receive the extra earnings which he would have been paid had he been working, and he has not been able to progress in his chosen career. The proceedings[5]On 15 March 2007, Mr Tariq lodged a claim with the Employment Tribunal. He was complaining that the withdrawal of his security clearance amounted to race and religious discrimination. He alleged both direct and indirect discrimination. His case on direct discrimination was that he had been treated in the way he had been simply because he was of the same religion and of the same racial or ethnic origin as those who had been suspected of having been involved in the plot. His case on indirect discrimination was that, to the extent that the Home Office was applying its security policy to him, that policy put people of his religion and his racial or ethnic origin at a particular disadvantage in circumstances in which that less favourable treatment could not be justified. Since the allegations related to discrimination in the employment field, such discrimination would be rendered unlawful by Part II of the Race Relations Act 1976 ("the Act") and Part II of the Employment Equality (Religion or Belief) Regulations 2003 ("the Equality Regulations"). The Home Office denies these allegations, but in any event relies on section 42 of the Act and reg. 24 of the Equality Regulations. Section 42 provides:
"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 is justified by that purpose."
Reg. 24 of the Equality Regulations is to the same effect. The compatibility of these provisions with the European Convention on Human Rights ("the Convention") and European Community law is one of the issues which the Employment Tribunal will have to address.[6]Fairly early on the Home Office decided that much of the evidence on which it proposed to rely could not be disclosed to Mr Tariq and his legal team, and would have to be given in private at a hearing from which members of the public should be excluded. The Employment Tribunals Rules of Procedure ("the Rules") – which are contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 ("the Regulations") – provide for such a situation. Rule 54(2) enables the tribunal or an employment judge, if it is considered expedient in the interests of national security, to make various orders, including the following ones:• that the whole or part of the proceedings be conducted in private• that the claimant (and his representatives) be excluded from the whole or part of the proceedings• that steps be taken to conceal the identity of a particular witness• that all or part of the reasons for the tribunal's judgment be kept secret. The tribunal or employment judge must keep any such orders under review throughout the proceedings, and rule 54(4) requires the tribunal or employment judge to ensure that information is not disclosed contrary to the interests of national security.[7]Schedule 2 to the Regulations – which contains the Employment Tribunals (National Security) Rules of Procedure ("the National Security Rules") – includes rules which give effect to rule 54(2). It is common ground that the National Security Rules apply to Mr Tariq's claim. A number of the rules in the National Security Rules supplement the provisions in rule 54(2) about non-disclosure. For example, rules 3(3) and 4(1) permit the respondent's response to the claim not to be disclosed to the claimant, and rule 10(3) permits the Minister to redact parts of the tribunal's reasons for its decision. However, for present purposes, the most relevant provision of the National Security Rules is rule 8 which relates to the use of special advocates. Special advocates are well known in cases proceeding before the Special Immigration Appeals Commission ("SIAC") and in the High Court when control orders are being considered, and the model has been adopted by statute (and sometimes without statutory authority) for a number of other security-sensitive processes. Rule 8 of the National Security Rules is an example of that. The special advocate is appointed by the Attorney-General and has the support of a dedicated unit within the Treasury Solicitor's Department, known as the Special Advocates' Support Office. The special advocate's role was described by Sedley LJ in Murungaru v Secretary of State for the Home Department [2008] EWCA 1015 (Civ) at [17] as follows:
"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. In the words of the (undated) memorandum agreed between the Lord Chief Justice and the Attorney General, the special advocate represents no-one. A special advocate system is thus not a substitute for the common law principle that everyone facing an accusation made by the State is entitled to a fair chance to know the evidence in support of it and to test and answer it in a public hearing. But it is the best procedure so far devised to mitigate the effect of trial without disclosure if such a trial is unavoidable."
It is unnecessary to set out the detailed provisions of rule 8 of the National Security Rules, but the key feature of the role of the special advocate is that he or she can take instructions from the claimant before any closed material is disclosed to them, though once such disclosure has taken place, they are subject to a cordon sanitaire , and cannot communicate with the claimant without the permission of the employment judge.[8]It was with all that in mind that at a case management discussion on 22 November 2007 Employment Judge Potter ordered the Home Office to set out its case that the interests of national security required orders to be made under rule 54(2). The Home Office's case was set out in open and closed submissions, and a further case management discussion took place on 10 January 2008. The issue to be addressed was whether appropriate orders under rule 54 should be made in the particular circumstances of the case. Regional Employment Judge Latham concluded – in an order dated 15 February 2008 – that it was expedient in the interests of national security for appropriate orders to be made under rule 54. He ordered that the whole of the proceedings be conducted in private, and that Mr Tariq and his representatives should be excluded from those parts of the proceedings at which closed evidence was to be given or closed documents were to be considered. Rule 8 of the National Security Rules did not permit the employment judge to order that a special advocate be appointed, but it was apparent from the reasons he subsequently gave that he thought that one should be appointed, and he ordered that if one was appointed, the closed materials should be made available to him or her. In due course, the Attorney-General appointed a special advocate, Miss Judith Farbey, to represent the interests of Mr Tariq when he and his representatives were excluded from the proceedings, i.e. when closed evidence was being given, closed documents were being considered, and closed submissions were being made.[9]Redacted reasons for the orders made following that case management discussion were sent to the parties on 15 October 2008 and the unredacted ones on 9 December 2008. The fact that the unredacted ones were eventually sent to Mr Tariq's legal team shows that there had been no need for redacted ones to have been sent to them initially. That change of position is said by Mr Robin Allen QC for Mr Tariq to put into question the Secretary of State's approach to such concerns as there may be about national security in this case.[10]On 28 May 2008, Mr Tariq's solicitors wrote to the Tribunal requesting a preliminary hearing to consider whether rule 54 of the Rules and the National Security Rules were compatible with Mr Tariq's right to a fair hearing of his claim for discrimination under Art. 6 of the Convention, and to his right under European Community law (specifically Council Directive 2000/43/EC ("the Race Directive") and Council Directive 2000/78/EC ("the Employment Equality Framework Directive")) to an effective judicial remedy for the discrimination of him. The Tribunal was asked to refer these issues to the European Court of Justice pursuant to Art. 234 of the Treaty of the European Communities if that was thought to be necessary. Mr Tariq's solicitors made a similar request relating to section 42 of the Act and reg. 24 of the Equality Regulations. Whether these questions should be addressed at a preliminary hearing was considered at a case management discussion on 31 July 2008. The Secretary of State argued, on the basis of what the Court of Appeal had said in Coles v Barracks [2007] ICR 60 , that the appropriate time for arguing these points was after the relevant evidence had been given. That argument was adopted by Regional Employment Judge Latham, and accordingly it was ordered on 16 October 2008 that these arguments should be considered at the full hearing of the claim on its merits, and even then only after the evidence – both open and closed – had been given: see para. 39(1) of the reasons. The hearing in January 2009[11]The full hearing of the claim on its merits was listed for 12-20 January 2009. It was listed before an employment tribunal whose members had had no previous involvement with the case. At the beginning of the hearing, Mr Allen argued that the compatibility of the rules permitting closed evidence with the Convention and Community law, and whether any reference should be made to the European Court of Justice, should be determined before any closed evidence was given. In this respect, he was, on the face of it, going behind that part of the order of 16 October 2008 which had required the issue to be considered only after the evidence – both open and closed – had been given.[12]The Tribunal appears at one stage to have been saying that it had been too late for the point to be taken that the rule 54 procedure was incompatible with Mr Tariq's rights under the Convention and Community law. Thinking of that kind appears in para. 27 of the Tribunal's reasons, when it apparently accepted that such a challenge had to be made at what it described as the "outset". That was presumably a reference to the fact that orders pursuant to rule 54 of the Rules and the National Security Rules had been made on 15 February 2008 following the case management discussion on 10 January 2008, and no appeal had been lodged against those orders. Despite that, the Tribunal decided to hear the arguments about whether the rules permitting closed evidence were compatible with the Convention and Community law, presumably because of its obligation to keep any orders made under rule 54(2) under review throughout the proceedings – and despite the order of 16 October 2008 to hear those arguments before it heard any of the closed evidence. It presumably accepted Mr Allen's contention that it would be inappropriate to hear the closed evidence before a decision had been made whether the rules permitting closed evidence to be given were compatible with the Convention and Community law. It also decided to hear the arguments on their compatibility with the Convention and Community law before it heard any of the open evidence, thereby rejecting Mr Allen's contention that it should at least hear the open evidence before deciding whether a reference to the European Court of Justice was necessary. That is one of the Tribunal's rulings challenged on this appeal.[13]In due course, the Tribunal held that it had the power to admit closed evidence, which was the Tribunal's way of saying that a hearing at which closed evidence would be admitted would not be incompatible with the Convention and Community law. That is, of course, the principal ruling made by the Tribunal which is challenged on this appeal. Although it did not say so explicitly, the Tribunal presumably thought that in the circumstances a reference to the European Court of Justice was unnecessary. Finally, the Tribunal also held, in the light of the decision of the Employment Appeal Tribunal (Burton J presiding) in Farooq v Commissioner of Police of the Metropolis (UKEAT/0542/07/DH) at [22]-[27], that when it came to the evidence, it would hear the closed evidence first, and then hear the open evidence. That was an issue which the order of 16 October 2008 had expressly left to the Tribunal which was to hear the claim on its merits to decide. That is the third ruling which is challenged on this appeal.[14]We should, however, dispose initially of one point canvassed on Mr Tariq's behalf. It is said that at the outset of the hearing in the Tribunal, Mr Tariq's legal team became aware that the Tribunal had been "due to receive a secret briefing from an unidentified individual". They objected to that course immediately, and although the Home Office did not deny that a briefing had indeed been intended, the Home Office is said to have given no explanation of what had been proposed, and the Tribunal is said not to have pressed the Home Office on the matter. The Home Office has explained to us that what was intended was no more than a briefing relating to the way in which the closed documents which the Tribunal would be provided with should be handled, such as the arrangements for how they were to be stored. The special advocate could have been present to ensure that the Tribunal was not told anything inappropriate, but in the event the briefing did not go ahead in view of the objection to the use of closed materials at all.[15]That explanation is not regarded as satisfactory by Mr Tariq's legal team. The objection to what was proposed was maintained before us on the basis that neither the Rules nor the National Security Rules provided for such a briefing. The point was made that in a case in which the National Security Rules apply, which by definition is a case in which the normal procedures have been attenuated, strict compliance with the Rules is required. Since the briefing did not go ahead, it is not strictly necessary for us to contribute to this debate, but we see nothing objectionable in the course which the Home Office proposed. The Tribunal was not being told "how it should conduct the case". It was being briefed on a purely administrative matter designed to ensure that the members of the Tribunal – who would not have encountered the use of closed materials before – treated them with the care which their sensitivity required. Issue 1: Should the Tribunal have ruled on the appropriateness of hearing closed evidence before hearing the open evidence ?[16]We do not think that the Tribunal can fairly be criticised for deciding whether it was permissible to hear closed evidence at all before hearing any of the open evidence. The Tribunal knew that the Home Office was not prepared to disclose to Mr Tariq and his legal team much of the evidence on which it proposed to rely. There was little point in hearing the open evidence when the reasons for withdrawing Mr Tariq's security clearance – on which the case turned – would in large measure be given in the closed evidence. The doctrinal challenge to the rule 54 procedure was a root and branch attack on it, and it had not been suggested on behalf of Mr Tariq that the outcome of that challenge was in any way dependent on the open evidence.[17]Nor do we think that the Tribunal's approach was inconsistent with that adopted in Coles v Barracks . That case related to a black police officer who had applied for an internal post for which security vetting was required. A white officer was appointed. The claimant alleged that she had not been appointed to the post because she was black and complained of race discrimination. The police force claimed that she had not been appointed to the post because she had failed the vetting check. But the police force declined to explain why she had failed the vetting check. Its case was that the law prohibited it from disclosing to her(a) why she had failed the vetting check and(b) the legal basis for its contention that the law prohibited its disclosure. Sections 17-19 of the Regulation of Investigatory Powers Act 2000 were given as an example of legislation which could have prevented the police force from disclosing this information. The police force neither confirmed nor denied that these sections had provided the actual legal basis for its stance. The Employment Appeal Tribunal (Judge Ansell presiding) decided not to order such disclosure, and on appeal it was argued on behalf of the claimant that this decision infringed the claimant's right to a fair hearing of her claim of discrimination and to an effective judicial remedy for the discrimination of her.[18]In the particular circumstances of the case, the Court of Appeal thought that it had been premature for the Employment Appeal Tribunal in that case to determine, in advance of the substantive hearing in the Employment Tribunal, whether the police force's stance was soundly based. It thought that at that subsequent hearing, as Mummery LJ put it at [5], "it ought to become clearer than it is now how much relevant evidence can be given to the tribunal by each side and without risk of the [police force] breaching possible legal restrictions on disclosure of security vetting procedures and information". Indeed, at [6], Mummery LJ did not discount the possibility that the legal issues might turn out to be hypothetical. That was why Mummery LJ concluded at [73] that the "issues of fair hearing and effective judicial remedy should be argued and decided in full knowledge of the position after all the available evidence had been heard before the employment tribunal".[19]It is not clear from the judgments in the Court of Appeal what the relevant evidence was which could make the legal issues hypothetical, but whatever that evidence was, it was that which distinguished Coles v Barracks from the present case. Much of the critical evidence in the present case can only be given in closed sessions, and the Home Office has acknowledged that without that evidence it will not be able to defend the case. Moreover, the difference between evidence which the law supposedly prohibited the police force in Coles v Barracks from giving, and evidence which the Home Office is unwilling to disclose for reasons of national security, has an important practical significance. In the former, the evidence cannot be given at all. In the latter, it can be given, and although not disclosed to Mr Tariq and his legal team, it will be considered by the Tribunal with the benefit of it being tested by the special advocate. In the circumstances, we do not believe that the view which the Court of Appeal took in Coles v Barracks in the light of the particular circumstances of that case about the desirability of the Tribunal hearing such of the open evidence as it could before deciding whether the police force's stance was soundly based can be said to undermine the course which the Tribunal thought was appropriate in this case. Issue 2(i): The compatibility of the rule 54 procedure with the Convention[20]Because Community law takes its lead from Convention jurisprudence on questions of procedural fairness, it is appropriate to consider first the compatibility of the rule 54 procedure with Art. 6 of the Convention. Art. 6.1 provides, so far as is material:
"In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law."
It has not been suggested on Mr Tariq's behalf that the power which rule 54 gives a tribunal or an employment judge to order that all or part of the proceedings be conducted in private is incompatible with Art. 6, or that it was inappropriate for such an order to be made in Mr Tariq's case. The feature of the rule 54 procedure which is said to be incompatible with the right to a fair hearing enshrined in Art. 6 is the ability of the tribunal or an employment judge to order that a claimant and his representatives be excluded from the whole or part of the proceedings, notwithstanding the use of a special advocate to represent the interests of the claimant. The issue was thought to have been addressed by the Employment Appeal Tribunal before in Farooq v Commissioner of Police of the Metropolis (UKEAT/0255/07/JOJ) (Underhill J presiding). In a subsequent appeal in Farooq , Burton J said that, if the skeleton arguments before Underhill J were anything to go by, there had been what Burton J described as "a full-frontal attack on rule 54", and Underhill J had rejected the challenge to it. However, Burton J could only assume that that was the case because he was under the impression that Underhill J's judgment had not been transcribed. In fact, it was transcribed at some stage, and it is now clear that the only issue which Underhill J considered was whether rule 54 (in its original form before it was subsequently amended with effect from 1 October 2005) applied to proceedings other than Crown employment proceedings.[21]By the time of the hearing in the Tribunal, a number of domestic authorities had considered the compatibility of procedures similar to the rule 54 procedure with Art. 6 of the Convention. The two leading authorities – Secretary of State for the Home Department v MB and AF [2008] 1 AC 440 and Secretary of State for the Home Department v AF, AM and AN [2009] 2 WLR 423 – were decided in the context of control orders. But since the hearing in the Tribunal, there have been two judgments of very considerable importance which bear on the topic. They are A v The United Kingdom , application no. 3455/05, and Secretary of State for the Home Department v AF, AN and AE [2009] 3 WLR 74 . An appreciation of the effect of these cases is critical to the outcome of this appeal. The European Court of Human Rights ("the ECHR") delivered its judgment in A v The United Kingdom on 19 February 2009, which was after the hearing in the Employment Tribunal but before its judgment was promulgated. Judgment in Secretary of State for the Home Department v AF, AN and AE was handed down on 10 June 2009.[22]A v The United Kingdom . A v The United Kingdom concerned non-UK nationals who had been detained under the Anti-Terrorism, Crime and Security Act 2001 following the issue of a certificate by the Secretary of State under section 21 to the effect that the Secretary of State reasonably believed that the detainees were terrorists and that their presence in the United Kingdom was a risk to national security. The detainees appealed against their detention to SIAC. For the purposes of each appeal, the Secretary of State filed an open statement summarising the facts relating to the decision to certify the detainees, and as much of the supporting evidence which the Secretary of State considered could be disclosed without giving rise to any risk of national security. In addition, a closed statement of facts and evidence was placed before SIAC. That statement was disclosed to each detainee's special advocate, who was permitted to make submissions on that statement, but who could not consult with the detainee. One of the issues for the ECHR was whether this procedure was compatible with Art. 5(4) of the Convention, which provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
[23]The ECHR noted at [203] that "[t]he requirement of procedural fairness under Art. 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances". That was a recognition that the right to disclosure was not absolute, and that what procedural fairness requires is case and context specific. But the Court went on to say that "[a]lthough it is not always necessary that an Art. 5(4) procedure be attended by the same guarantees as those required under Art. 6 for criminal or civil litigation, it must … provide guarantees appropriate to the type of deprivation of liberty in question". At [205] the ECHR said that those guarantees meant that the proceedings "must always ensure 'equality of arms' between the parties", and that the detainee had to "be given an opportunity effectively to challenge the basis of the allegations against him". That "may also require the detainee or his representative be given access to documents in the … file which form the basis of the … case against him".[24]The ECHR acknowledged at [205] that even in criminal trials, Art. 6 may sanction restrictions "on the right to a fully adversarial procedure, where strictly necessary in the light of a strong countervailing public interest". That was a recognition of the need to strike the right balance between competing considerations. National security was given as an example of such an interest. At [206] the ECHR said that that might justify the withholding of some evidence from the defence. However, it concluded at [205] that the trial would not be fair "unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced" by judicial procedures. Thus, scrutiny of the relevant material by the court could in some cases be a sufficient counterbalance, and an example which the Court gave at [206] of when the withholding of evidence from the defence was sufficiently counterbalanced by the examination of the evidence by the judge was when the evidence was not evidence on which the prosecution intended to rely. But the ECHR went on to say that it was different when the evidence related to an issue of fact which formed part of the prosecution's case, and which was for the jury and not the judge to determine.[25]The ECHR then considered whether the use of special advocates who could test the evidence against the detainees and make submissions on that evidence provided the necessary counterbalance for the lack of full disclosure of the evidence. Since the context was long-term, and what appeared at one time to be indefinite, detention, the requirements of Art. 5(4) were treated at [217] as synonymous with what Art. 6 required of a criminal trial. On that issue, whilst acknowledging the risk to national security which international terrorism posed, the ECHR's conclusion at [220] was as follows:
"… 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 Art. 5(4) would not be satisfied ." (Emphasis supplied)
Applying these principles to the facts of the case, the ECHR found that Art. 5(4) had been infringed in the case of some of the detainees.[26]Secretary of State for the Home Department v AF, AW and AE . The judgment of the ECHR in A v The United Kingdom was analysed at length by the House of Lords in Secretary of State for the Home Department v AF, AN and AE , which was an appeal from the judgment of the Court of Appeal in Secretary of State for the Home Department v AF, AM and AN , which had itself been an appeal from the hearing remitted to the High Court by the House of Lords in Secretary of State for the Home Department v MB and AF . This series of cases related to various non-derogating control orders which had been made pursuant to section 2 of the Prevention of Terrorism Act 2005 on the ground that the Secretary of State had reasonable grounds for suspecting that the controlee was, or had been, involved in terrorism-related activity. They raised the question whether the use of special advocates provided the necessary counterbalance for the lack of full disclosure of the evidence for the purpose of Art. 6(1) in the context of a challenge to the various restrictions on the controlee which the control order entailed.[27]The House of Lords in Secretary of State for the Home Department v AF, AN and AE concluded that this issue had been resolved by the judgment in A v The United Kingdom . The leading speech was given by Lord Phillips. He acknowledged at [57] that "[t]he requirements of a fair trial depend, to some extent, on what is at stake in the trial", and that the restrictions imposed by non-derogating control orders fell far short of detention. There was therefore some force in the argument that "a less stringent standard of fairness" may be applicable to control orders, but Lord Phillips did not think that the ECHR "would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial". Thus, he concluded at [59] that the effect of the judgment in A v The United Kingdom on control orders was 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." These last words are important. Even if it could be said that the outcome of the case would not have been affected if the material had been disclosed, and the controlee had had the opportunity to challenge it, the effect of A v The United Kingdom was that the requirements of a fair trial were such that even then the material had to be disclosed. Although Lord Phillips was prepared to acknowledge in [62] that the "makes no difference" principle might otherwise have had its place in our jurisprudence, we read him as saying that it could not survive the judgment of the ECHR in A v The United Kingdom .[28]Lord Phillips recognised that A v The United Kingdom went further than the law had previously been thought to be. Thus, at [65] he said:
"Before A v The United Kingdom , Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counterbalancing procedures ensured that the party was accorded 'a substantial measure of procedural justice': Chahal v The United Kingdom 23 EHRR 413 , para. 131. Examples were cited by the Grand Chamber in A v The United Kingdom , at paras. 205-208, covering the withholding of material evidence and the concealing of the identity of witnesses. The Grand Chamber have now made clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order."
Lord Hoffmann made the same point at [71] when he said that "the Strasbourg Court has imposed a rigid rule that the requirements of a fair hearing are never satisfied if the decision is 'based solely or to a decisive degree' on closed material", whereas what had previously been thought to be the law in England "was that even in such a case, substantial justice might still be possible".[29]One further point should be made, and this emerges from the speeches of Lord Hope at [87] and Lord Brown at [121]. Focusing on the distinction between such allegations as are made, the detailed evidence for those allegations, and the sources of that evidence, they acknowledged that it may not be possible to separate allegations from the evidence, and in turn the evidence from its sources. In such cases, the interests of national security may have to yield to the imperative of a fair hearing, and even the detailed evidence and its sources may have to be given. As Lord Hope said, the ECHR in A v The United Kingdom had imposed a relatively high standard by requiring the detainee to be able to challenge the allegations against him effectively. That suggested, said Lord Hope, that "where detail matters, as it often will, detail must be met with detail". He concluded that there may be a significant number of cases in which the material disclosed is insufficiently specific to enable the detainee (or controlee) to give specific instructions beyond a general denial. "If that be so", said Lord Hope, "the fact must simply be faced that the system is unsustainable."[30]The effect of these cases . The effect, therefore, of A v The United Kingdom and Secretary of State for the Home Department v AF, AN and AE is that even in control order cases or cases in which someone is in detention in which national security is at stake, Art. 6 requires the controlee or the detainee to be provided with the allegations being made against him in sufficient detail to enable him to give effective instructions to the special advocate so that those allegations can be challenged effectively. The extent to which the detailed evidence which is said to support those allegations, and the extent to which the sources of that evidence, should be disclosed will be case specific, to be decided on the nature of the open and closed material in any given case in the light of the allegations being made. That, in effect, was what the Court of Appeal in Secretary of State for the Home Department v AHK and others [2009] EWCA 287 (Civ) at [45] got out of A v The United Kingdom . One thing is for sure. Provided that the allegations can be effectively challenged, sensitive information can be withheld, and a system which permits the non-disclosure of such information save to special advocates who have received security clearance is not of itself incompatible with Art. 6.[31]The impact of those cases on claims of discrimination proceeding in the employment tribunal . We turn, then, to the impact which these principles have on the very different context of claims of discrimination in the employment field which are proceeding in the employment tribunal. Mr Allen was keen to point out that the right not to be discriminated against was what he described as a "fundamental or foundational principle" of Community law. But most people would say that the denial of the right not to be discriminated against at work is less serious than the denial of the right to liberty and freedom of movement. Indeed, in Secretary of State for the Home Department v AHK and others , the Court of Appeal at [45] regarded the denial of or interference with one's liberty as much more serious than the refusal of British citizenship. And we acknowledge, of course, that national security may well be compromised if the disclosure of sensitive material is required to make the hearing of a claim like Mr Tariq's Art. 6 compliant. But what has to be factored into the equation is the true nature of the downside for the Home Office if it is not able to defend the claim on its merits without disclosing material which it is not prepared to disclose. That is, on any view, very different from the potentially catastrophic effect of someone who is reasonably suspected of involvement in terrorism-related activity having the restrictions on his movements lifted. The only consequence for the Home Office of not being able to defend Mr Tariq's claim is that his claim will succeed, and although the Home Office will be branded as having discriminated against him, the only practical consequence is that it will have to pay him such compensation as is awarded to him – which may be higher if the Tribunal recommends the lifting of his suspension and the Home Office refuses to comply with that recommendation. These considerations suggest that, if the requirements of a fair trial still depend, if only to some extent, on what is at stake in the trial, the outcome of Secretary of State for the Home Department v AF, AN and AE should apply all the more so to a hearing in the employment tribunal of the sort of claim Mr Tariq is making. If the ECHR would not distinguish between cases relating to the deprivation of liberty and cases relating to curbs on one's movements when dealing with the minimum of disclosure necessary for a fair trial, we do not think that it would sanction a less stringent standard of fairness where national security would not be at risk at all if the claimant's claim had to be conceded.[32]Subject, therefore, to a number of specific points which Mr Allen made about the system of special advocates, we have concluded that the rule 54 procedure is not in itself incompatible with the right to a fair hearing enshrined in Art. 6. A reference to the European Court of Justice to determine the point is wholly unnecessary. Whether the withholding of materials from a claimant will render the hearing unfair will depend on the nature of the open and the closed materials in the light of the allegations being made. That assessment is still to be conducted by the Tribunal in this case, but the fact that the reasons for withholding Mr Tariq's security clearance were contained for the most part in materials which the Home Office was not prepared to disclose means that the Tribunal may well conclude that further disclosure is required if the hearing of Mr Tariq's claim is to be Art. 6 compliant.[33]The use of special advocates . If the use of special advocates is to provide the necessary counterbalance for the lack of full disclosure of the evidence, they must be able to do their work effectively and independently, and to be subject to proper scrutiny. Mr Allen contended that they cannot do their work effectively because once the closed materials have been disclosed to them, they are unable to seek or obtain instructions from the claimant. He argued that the fact that(a) they are chosen from a list of suitable counsel maintained by the Attorney-General (the Government's principal legal adviser) and(b) the legal and administrative support which they receive is from a dedicated unit within the Government's legal department (the Treasury Solicitor's Department) which also acts for the Home Office means that they cannot be characterised as independent. And he claimed that they are not subject to proper scrutiny because no rules governing them exist.[34]We do not think that there is any substance in the last criticism. The Special Advocates' Support Office has issued two guides to the roles of the special advocate and the Special Advocates' Support Office: an open manual which is available to all, and a closed manual which is available only to those with security clearance. We have only seen the open manual, but it provides – particularly in chapters 8 and 9 – a clear exposition of the special advocate's role. And they are subject to such scrutiny as any other barrister is. The Special Advocates' Support Office acts as if it is the solicitor instructing the special advocate, and if the Special Advocates' Support Office is dissatisfied with the special advocate's conduct of the case, it has the same remedies open to it as a barrister's instructing solicitor in any other case.[35]As for the lack of independence, we regard that as more a matter of form than a matter of substance. It is true that a special advocate is appointed by the Attorney-General for a particular case, but he or she is just one of a large number of counsel from the independent bar on the panel maintained by the Attorney-General following open competition. They are selected for inclusion on the panel on the basis of their abilities rather than any commitment to government. In any event, the Special Advocates' Support Office sends a list of the barristers on the panel to the non-governmental party and their legal team, and they have a free choice of which special advocate should be instructed, subject only to availability (as in any other case in which counsel is instructed) or where the special advocate has already seen closed material in another case which would be relied on in the present case. As for the Special Advocates' Support Office itself, it operates on a Chinese walls basis with any other team within the Treasury Solicitor's Department. It is true that providing the non-governmental party with a security-vetted solicitor in private practice would eliminate the possibility of these Chinese walls being inadvertently scaled, but the advantage of having a dedicated team with experience of cases in which special advocates are required justifies the very modest risk of the Chinese walls being breached.[36]We acknowledge that the cordon sanitaire which surrounds the special advocate once any closed material has been disclosed to them prevents the special advocate from communicating with the party whose interests they are representing. We imagine that the rationale for that is to ensure that closed material is not inadvertently disclosed. After all, simply seeking the party's instructions on a particular topic may well give away the content of the closed material. We recognise that in this respect the non-governmental party may be at a disadvantage, and it will be for the tribunal or the employment judge in any particular case to decide whether the special advocate's inability to take the party's instructions on a particular point – when the rest of the open and closed material is taken into account – results in the fairness of the hearing of the claim being compromised to the extent that it becomes non-compliant with Art. 6.[37]For these reasons, we are completely unpersuaded that the system currently in operation for the use of special advocates prevents them from doing their work effectively and independently, or fails to subject them to proper scrutiny. Issue 2(ii): The compatibility of the rule 54 procedure with Community law[38]Art. 7(1) of the Race Directive provides:
"Member states shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation 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."
Art. 9(1) of the Employment Equality Framework Directive is in identical terms. The obligations under both Directives include the implementation of the principle of equal treatment to eliminate direct or indirect discrimination based on racial or ethnic origin, or in the employment context on the grounds, amongst other things, of religion or belief. The effect of these articles is to provide that people who claim to have been discriminated against must have an effective remedy. Again, the feature of the rule 54 procedure which is said to be incompatible with the right to an effective remedy for one's alleged discrimination is the ability of the tribunal or an employment judge to order that the claimant or his representatives be excluded from the whole or part of the proceedings, notwithstanding the use of a special advocate to represent the interests of the claimant.[39]The arguments on this issue were lengthy and wide-ranging. We intend no discourtesy to Mr Allen if we say that his submissions can be reduced to one key point, which was that the interests of national security are not permitted to derogate from the principle of equal treatment and the prohibition on discrimination, or from the need for the remedy for any alleged discrimination to be effective. But that does not dispose of the critical question, which is whether the remedy for a claim of race or religious discrimination in the employment field – namely the bringing of proceedings in an employment tribunal – is an effective one if the claimant or his representative is denied access to materials which the employment tribunal is being asked to consider. Whether that renders the remedy an ineffective one is, in our judgment, the very issue which Art. 6 raises. It follows that the question whether the rule 54 procedure is compatible with Community law adds nothing to the debate. Issue 3: Should the Tribunal hear the open evidence before it considers the closed evidence ?[40]The Tribunal recognised that its decision that it was permissible to hear evidence and examine documents not disclosed to Mr Tariq's legal team did not mean that fairness did not require the evidence or the documents to be disclosed. The Tribunal needed to understand what the true nature of the case against Mr Tariq was – and what evidence the Home Office proposed to rely on in order to establish its case – in order to decide whether the evidence and the documents had to be disclosed. The situation is no different now, save that the bar has been put much higher. Whether any of the evidence and documents withheld from Mr Tariq's legal team needs to be disclosed to make the hearing of his claim Art. 6 compliant will depend, as we have said, on an examination of the Home Office's closed case in the light of such materials as it is prepared to disclose. We imagine that Miss Farbey will have much to say on that topic in closed session.[41]However, this exercise does not require evidence to be called . It will, no doubt, involve the Tribunal in having to look at the relevant documents – both those which the Home Office is prepared to disclose and those which it is not, as well as the documents which Mr Tariq proposes to rely on. But whether further disclosure by the Home Office is required to make the hearing of Mr Tariq's claim Art. 6 compliant will be determined on submissions based on those documents and the nature of the evidence to be called. That is the context in which this part of the appeal arises. The current issue is not so much whether the open evidence should be heard before the closed evidence, which was the assumption on which the Tribunal proceeded. That was the context in which the Tribunal decided that the closed evidence should be heard first. That question can only properly be decided when the Tribunal has determined what evidence can be withheld and what evidence has to be disclosed to make the hearing of Mr Tariq's claim Art. 6 compliant. The issue for the present is a very much narrower one – namely, whether the Tribunal should be told in closed session what the true nature of the Home Office's case against Mr Tariq is and what evidence it is proposed to rely upon to establish that case before it is to be told what the parties' open cases are.[42]On that issue – which was not really the one which the Tribunal addressed – we think that the appropriate course is for the Tribunal to be informed first of the parties' open cases, and for the Tribunal then to go into closed session to be informed of the Home Office's closed case. That is because it will be during the closed session, but after the Tribunal has been informed of the Home Office's closed case, that it will hear submissions from the Home Office and Miss Farbey about whether further disclosure is necessary to make the hearing of Mr Tariq's claim Art. 6 compliant. Since those submissions have to take into account the parties' open cases, those submissions will be far more informed if the Tribunal has already been told what the parties' open cases are.[43]We do not think that this approach would be inconsistent with the procedure adopted in the subsequent appeal in Farooq v Commissioner of the Police of the Metropolis . In that case, an appeal from the decision of an employment judge that the closed evidence should be heard before the open evidence was dismissed. However, the hearing to which that decision related was not a hearing at which it was to be decided whether the material which the Commissioner was unwilling to disclose should be disclosed. The hearing was the hearing of the claim itself at which the evidence was to be called, in both open and closed sessions. That is not the sort of hearing which the next hearing in this case will amount to. In any event, Farooq is of little guidance. Although the decision of the employment judge about the order of the closed and open evidence had not itself been the subject of an appeal, other parts of the order which had incorporated that decision had been the subject of the appeal heard by Underhill J. Burton J held at [22] that in those circumstances the issue about the order of the evidence could only be re-visited if there had been "a change of circumstances or some fundamental point of law" which had not been considered. In the event, he decided that the law relating to the burden of proof in discrimination cases, and the need for the special advocate to know the claimant's open case, did not justify reversing the order of the evidence. That does not mean, of course, that when the Tribunal in the present case has decided what, if anything, has to be disclosed to Mr Tariq's legal team to make the hearing of his claim Art. 6 compliant, and it comes to deciding the order of the evidence, it is bound to take the same view as it previously did. It will depend – at least in part – on how much, if any, of the Home Office's case has to be disclosed.[44]It goes without saying, of course, that whatever view the Tribunal takes at the next hearing of how much, if any, of the Home Office's case is to be disclosed, it will have a continuing duty to keep matters under review. It will therefore be open to the Tribunal at the ultimate hearing of Mr Tariq's claim to decide that further disclosure must be made to Mr Tariq's legal team if the hearing is to remain Art. 6 compliant. Conclusion[45]For these reasons, we have decided the first two issues which the appeal has raised in favour of the Home Office, although the new test which has to be applied to closed materials to make the hearing of Mr Tariq's claim Art. 6 compliant may well result in the Home Office being ordered to make significant further disclosure. On the third issue which the appeal has raised, we have said how we think the next hearing in the Tribunal should proceed, and the order of the evidence when Mr Tariq's claim is heard on its merits will have to be re-visited then. We regret the lapse of time in handing down this judgment, but as the parties know the hearing of this appeal took place just before I was due to go on leave, and there was no time to prepare a draft of this judgment before then.