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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Home Office v Tariq [2010] EWCA Civ 462 (04 May 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/462.html Cite as: [2010] UKHRR 793, [2010] ICR 1034, [2010] EWCA Civ 462, [2010] IRLR 1065 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
REF NO. UKEAT016809DA, BAILII: [2009] UKEAT 0168_09_1610
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE SULLIVAN
____________________
THE HOME OFFICE |
Appellant |
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- and - |
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TARIQ |
Respondent |
____________________
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
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
The statutory framework
"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."
"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."
Issue 1: the lawfulness of closed material procedure
"… 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
"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."
"shall render unlawful an act done for the purpose of safeguarding national security or of protecting public safety or public order."
"shall be conclusive evidence that it was done for that purpose."
"the Member States must take measures which are sufficiently effective to achieve the aim of the Directive and … they must ensure that the rights thus conferred may be effectively relied upon before the national courts by the persons concerned."
It added (at paragraphs 18 and 20):
"The requirement of judicial control stipulated by [Article 6 of the Directive] reflects a general principle of law which underlies the constitutional traditions common to the Member States …
A provision which … requires a certificate … to be treated as conclusive evidence that the conditions for derogating from the principle of equal treatment are fulfilled allows the competent authority to deprive an individual of the possibility of asserting by judicial process the rights confirmed by the Directive. Such a provision is therefore contrary to the principle of effective judicial control laid down by Article 6 of the Directive."
"the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to Member States, which has been enshrined in Articles 6 and 13 of the ECHR."
"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 made clear (at paragraph 344) that, ultimately, it was a matter of balance between
"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 hand, the need to accord the individual a sufficient measure of procedural justice." (Emphasis added).
Moreover, that sufficiency was conditioned by ECHR Article 6 standards, reference being made expressly to Chahal v United Kingdom (1997) 23 EHRR 413.
ECHR Article 6
"… in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice."
"In my 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 … It is in that capacity alone that he approves the list of counsel judged suitable to act as Special Advocates … Counsel roundly acknowledged the complete integrity shown by successive holders of the office in exercising this role, and no plausible alternative procedure was suggested."
I consider that that effectively disposes of Mr Allen's point about the role of the Attorney General.
"… an effective Chinese wall needs to be an established part of the organisational structure of the firm, not created ad hoc and dependent on evidence sworn for the purpose by members of staff engaged on the relevant work."
Conclusion on Issue 1
Issue 2: Does AF(No.3) apply to the proceedings in the ET?
"What a fair trial requires cannot, however, be the subject of a single unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European court has consistently done."
"Of the fundamental importance of the right to a fair trial there can be no doubt. But there is equally no doubt that the essential ingredients of a fair trial can vary according to the subject-matter and nature of the proceedings."
"The requirements of a fair trial depend, to some extent, on what is at stake in the trial."
And (at paragraph 65):
"The Grand Chamber has 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."
"The 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."
"… a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all."
"Unlike principles such as open justice or the right to disclosure of relevant documents a litigant's right to know the case against him … is fundamental to the fairness of a trial."
"I do not consider that the Strasbourg court would draw any such distinction when dealing with the minimum of disclosure necessary for a fair trial."
"… 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."
"If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him."
"An essential requirement of a fair hearing is that a party against whom relevant allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail … must … be sufficient to enable the opportunity to be a real one."
"In short, Strasbourg has decided that 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."
The emphasis of always is Lord Brown's.
Issue 3: An ancillary point on procedure
"in deciding whether to order further materials to be disclosed to the Appellant in order to ensure that the hearing of his claim for discrimination is fair, the Employment Tribunal should first be informed of what the parties' open cases are, and should then be informed in closed session what the Respondent's case is."
"At present the Tribunal does not know what the Respondent's case is. The Tribunal is persuaded that in the interests of fully understanding the case before it and, thus, deciding the case fairly in accordance with the overriding objective, it must hear the closed evidence first. "
Conclusion:
Lord Justice Sullivan:
The Master of the Rolls