Tariq v Home Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Sullivan,The Master of the Rolls |
| Judgment Date | 04 May 2010 |
| Neutral Citation | [2010] EWCA Civ 462 |
| Docket Number | Case No: A2/2009/2419/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2010 |
[2010] EWCA Civ 462
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Before: The Master of the Rolls
Lord Justice Maurice Kay
and
Lord Justice Sullivan
Case No: A2/2009/2419/EATRF
REF NO. UKEAT016809DA
Mr James Eadie QC and Miss Catherine Callaghan (instructed by Treasury Solicitors) for the Home Office
Mr Robin Allen QC and Mr Paul Troop (instructed by Russell Jones & Walker) for Mr Tariq
Miss Judith Farbey (Special Advocate) (instructed by Mr Simon Gomes, Special Advocates Support Office) for Mr Tariq
Hearing dates: 22, 23 March 2010
Approved Judgment
Lord Justice Maurice Kay:
This is another case about closed material procedure and the use of special advocates (SAs). They first entered our lexicon of civil procedure, albeit without the present nomenclature, in the Special Immigration Appeals Act 1997, legislation which was prompted by Chahal v United Kingdom (1997) 23 EHRR 413. Since then they have been deployed in other proceedings, both civil and criminal, as exceptions to the fundamental principle of open justice. Today, this Court, identically constituted, has handed down judgment in Al-Rawi and others v The Security Service and others [2010] EWCA Civ 482 in which we held that a court does not have the power to order a closed material procedure in relation to a civil claim for damages. The first issue in the present case is whether an Employment Tribunal (ET) has such a power. If it does, the second issue is whether Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28, [2009] 3 WLR 74 applies in this context so as to require the Home Office to provide a gist of the closed material upon which it seeks to rely to the employee and his legal representatives in the ET proceedings. There is a third ancillary issue.
The factual background can be briefly stated. Mr Tariq commenced employment with the Home Office in April 2003 as an immigration officer. He received the necessary security clearance. However, in August 2006 he was suspended from duty due to national security concerns and on 20 December 2006 all levels of security clearance were withdrawn from him. He was told that this was based on his close association with individuals suspected of planning to mount terrorist attacks and that it was considered that association with such individuals might put him at risk of their attempting to exert influence on him to abuse his position as an immigration officer. An internal appeal against the withdrawal of his security clearance was dismissed. He remains suspended.
The events which triggered the suspicion were the arrests on 10 August 2006 of Mr Tariq's brother and cousin in the course of an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. The brother was released without charge. The cousin, Tanveer Hussain, was charged, prosecuted and eventually convicted. He is now serving a sentence of life imprisonment for conspiracy to murder.
Mr Tariq is a Muslim of Asian/Pakistani ethnic origin. He commenced proceedings in the ET in March 2007 claiming that his suspension and the withdrawal of his security clearance were acts of direct or indirect discrimination on the grounds of race and/or religion. There has yet to be a substantive hearing in the ET. The last three years have been taken up with a procedural dispute about whether a closed material procedure and a SA should be deployed (as the Home Office contends but Mr Tariq opposes) and, if so, whether AF(No.3) imposes a gisting duty (as Mr Tariq contends but the Home Office opposes).
By a determination dated 5 March 2009, the ET held that it had power to adopt a closed material procedure and that it would hear the closed evidence before the open evidence. Mr Tariq appealed to the Employment Appeal Tribunal (EAT). Between the decision of the ET and the hearing of the EAT, AF(No.3) was decided in the House of Lords on 10 June 2009. AF(No.3) was conditioned by the Strasbourg case of A v United Kingdom (2009) 49 EHRR 29 in which judgment was delivered on 19 February 2009 – a month after the hearing in the ET in the present case and shortly before the ET promulgated its decision. The EAT upheld the decision of the ET that the closed material procedure is lawful and appropriate. However, it concluded that, in the light of AF(No.3), Article 6 of the ECHR entitled Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal representatives so that those allegations can be effectively challenged.
Now, in this Court, the Home Office appeals on the AF(No.3) point and Mr Tariq cross-appeals on the point of principle as to whether a closed material procedure is lawful in the ET. Logically, that is the first issue. In addition, there is a continuing issue as to whether (assuming that a closed material procedure is lawful) the ET was correct about the sequencing of the evidence.
The statutory framework
Whereas Al-Rawi fell to be decided in a statutory vacuum, there is a statutory framework in relation to ET proceedings which provides for a closed material procedure and the appointment of a SA in a national security case. The case for Mr Tariq is that the statutory provisions offend both EU law and Article 6 of the ECHR. At this point, it is appropriate simply to set out the statutory provisions.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 were enabled by sections 7 and 10 of the Employment Tribunals Act 1996 (as amended). The Employment Tribunals Rules of Procedure 2004 form Schedule 1 to the 2004 Regulations. Rule 54(1) provides:
“A Minister of the Crown … 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 representatives 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.”
Whether or not a Minister of the Crown so directs, Rule 54(2) empowers a Tribunal or Employment Judge, if it or he considers it in the interests of national security, by order to –
“(a) do … anything which can be required by direction to be done in relation to particular Crown employment proceedings under paragraph (1).”
There are ancillary powers to restrict disclosure and to keep secret all or part of the reasons for a judgment. Rule 54(4) then provides:
“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.”
These provisions are supplemented by the Employment Tribunals (National Security) Rules of Procedure 2004 which are to be found in Schedule 2 to the 2004 Regulations. For present purposes, I can simply record that Rule 8 provides for the appointment of a SA by the Attorney General
“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.”
Broadly speaking, a SA in an ET is in the same position as a SA in the Special Immigration Appeals Commission or in control order proceedings in the Administrative Court.
In the present case, on 15 February 2008 the Regional Employment Judge made an order under Rule 54(2) for the exclusion of Mr Tariq and his representatives from any part of the proceedings when closed evidence was being adduced, for the appointment of a SA and for the entirety of the proceedings to be held in private. Mr Tariq raises no issue on appeal about the ET hearing being private.
Issue 1: the lawfulness of closed material procedure
The primary submission advanced on behalf of Mr Tariq by Mr Robin Allen QC by way of cross-appeal is that the domestic legislation providing protection against discrimination contained in the Race Relations Act 1976 and the Employment Equality (Religion and Belief) Regulations 2003 must comply with the relevant provisions of (1) European Union law in the form of Council Directive 2000/43/EC of 29 June 2000 (“the Race Directive”) and Council Directive 2000/78/EC of 27 November 2000 (“the Equal Treatment Framework Directive”) and (2) Article 6 of the ECHR. The skeleton argument on behalf of Mr Tariq asserts:
“… secret evidence is not permissible at all in cases such as the present … because there is no provision for such a secret hearing in the two Directives and it is not consistent with Article 6.”
EU Law
Mr Allen's most fundamental submission is that to the extent that the domestic Regulations purport to provide a closed material procedure they constitute an unlawful derogation from the right not to be discriminated against as provided in the two Directives. Interestingly, there is a noticeable textual difference between the Directives. Article 2(5) of the Equal Treatment Framework Directive provides:
“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.”
The Race Directive, on the other hand, contains no such express provision. However, both Directives contain provisions obliging Member States to...
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