Home Office v Tariq

A closed material procedure may be used in Employment Tribunal proceedings involving national security where legislation permits it and the procedure is necessary, proportionate and adequately counterbalanced. It is not inherently incompatible with EU law or Article 6 of the ECHR.

That does not remove the litigant’s fundamental right to know the essence of the case against him. Where a public authority relies on closed material, the tribunal must ensure, so far as fairness requires, that sufficient information is provided to enable the opposing party to give effective instructions and challenge the case, including by a gist.

Mr Tariq, an immigration officer, brought Employment Tribunal proceedings alleging race and religious discrimination after his security clearance was withdrawn and he was suspended on national security grounds. The Home Office sought to rely on closed material and to use a special advocate.

The Employment Tribunal held that it had power to adopt a closed material procedure. The Employment Appeal Tribunal upheld that conclusion but held, following AF (No 3), that Article 6 required Mr Tariq to receive sufficient detail of the allegations to enable effective instructions to his representatives. The Home Office appealed on the disclosure issue. Mr Tariq cross-appealed on the lawfulness of the procedure. A further issue concerned the sequencing of open and closed evidence.

1. Outcome. The Home Office’s appeal was dismissed. Mr Tariq’s cross-appeal was dismissed. The Court gave clarification on the procedure to be followed by the Employment Tribunal.
2. Lawfulness of closed material procedure. The statutory rules permitting private hearings, exclusion of a claimant and representatives, concealment of a witness’s identity, restricted disclosure and special advocates were not inherently incompatible with EU law or Article 6. The procedure was exceptional and had to be necessary for a proper social objective, no more restrictive than required, and counterbalanced by appropriate safeguards, including independent judicial scrutiny and special advocates.
3. The EU-law authorities did not establish that a Directive-derived substantive right could never be enforced through an exceptional national-security procedure. The relevant question was whether effective judicial protection had been lost or enforcement made impossible or excessively difficult. That threshold was not shown here.
4. Disclosure of the essence of the case. The principle in AF (No 3) [2009] UKHL 28 applied even though the proceedings concerned a discrimination claim rather than detention or a control order. The right to know the essence of the case, so as to deny and where possible refute it, was fundamental. The Home Office could not rely on closed material without the tribunal ensuring that fairness requirements were met, including disclosure of a sufficient gist where necessary.
5. Procedure. The tribunal should distinguish a preliminary Article 6 compliance hearing from the substantive hearing. At the preliminary stage it should decide provisionally what material, if any, must be disclosed or excluded. It had a continuing duty to review fairness as the case developed. At the substantive hearing, the order of evidence remained discretionary, but very cogent reasons would be required before closed evidence was heard first against the procedural wishes of the excluded party and those representing his interests.

• Employment Tribunal. By determination dated 5 March 2009, held that it had power to adopt a closed material procedure and directed that closed evidence be heard before open evidence.
• Employment Appeal Tribunal. On appeal under Ref No. UKEAT016809DA, upheld the lawfulness and appropriateness of the closed procedure, but held that Article 6 required disclosure of the allegations in sufficient detail to enable effective instructions to be given.
• Court of Appeal (Civil Division). Dismissed the Home Office’s appeal on the disclosure issue and Mr Tariq’s cross-appeal on lawfulness. It clarified the preliminary and substantive stages and gave guidance on sequencing evidence.