Tariq v Home Office
| Jurisdiction | England & Wales |
| Judge | LORD RODGER,LORD HOPE,LORD CLARKE,LORD DYSON,LORD KERR,LORD PHILLIPS,LORD BROWN,LORD MANCE,LADY HALE |
| Judgment Date | 13 July 2011 |
| Neutral Citation | [2011] UKSC 35 |
| Date | 13 July 2011 |
| Court | Supreme Court |
[2011] UKSC 35
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Clarke
Lord Dyson
Appellant
James Eadie QC
Catherine Callaghan
(Instructed by Treasury Solicitors)
Respondent
Robin Allen QC
Paul Troop
(Instructed by Russell Jones & Walker Solicitors)
Appellant
Robin Allen QC
Paul Troop
(Instructed by Russell Jones & Walker Solicitors)
Respondent
James Eadie QC
Catherine Callaghan
(Instructed by Treasury Solicitors)
Special Advocate
Judith Farbey QC
(Instructed by Special Advocates Support Office)
Interveners (JUSTICE and Liberty)
John Howell QC
Naina Patel
(Instructed by Herbert Smith LLP)
Introduction
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.
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proceedings, the appellant, Mr Kashif Tariq, complains that his security clearance as an immigration officer was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that this was contrary to the Race Relations Act 1976 and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.
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.
The factual background in more detail
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.
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".
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 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
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;…
(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), 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
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.
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
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
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...
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