Tariq v Home Office

The Supreme Court considered whether the Employment Tribunals statutory scheme (in particular rule 54 of the Employment Tribunals Rules of Procedure and rule 8 of the National Security Rules made under section 10 of the Employment Tribunals Act 1996) permitting a closed material procedure with a special advocate is compatible with Article 6 of the European Convention on Human Rights and with principles of European Union law implementing the Race Directive and the Employment Equality Directive. The court held that a closed material procedure can be compatible where it provides effective legal protection and adequate counter‑balancing safeguards, including scrutiny by a judicial tribunal and the role of a special advocate.

The Court rejected the Court of Appeal’s declaration that Article 6 always requires the claimant personally to be given detailed “gisting” of the allegations such that he can give effective instructions to his legal team or to the special advocate. In security‑vetting cases, concerns about the efficacy of vetting and the protection of sensitive sources and methods may justify withholding detail, subject to careful judicial balancing and ongoing review by the tribunal.

The Court therefore allowed the Home Office’s appeal (setting aside the absolute gisting declaration) and dismissed Mr Tariq’s cross‑appeal against the permissibility of a closed material procedure, emphasising the tribunal’s duty to keep orders under review and to ensure as much disclosure as is compatible with national security.

Background and parties: Mr Kashif Tariq, an immigration officer, brought employment tribunal proceedings alleging direct or indirect discrimination on grounds of race and/or religion under the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 after his security clearance was withdrawn following counter‑terrorism investigations involving relatives. The Home Office defended on national security grounds and applied for a closed material procedure with a special advocate.

Procedural history: The Employment Tribunal ordered a closed material procedure (15 February 2008). Mr Tariq’s challenge to that order was dismissed by the Employment Appeal Tribunal (16 October 2009, UKEAT 168/09) and the Court of Appeal (4 May 2010, [2010] EWCA Civ 462), but the lower courts had declared that Article 6 requires that the claimant be provided with sufficient detail of allegations ("gisting"). The Home Office appealed to the Supreme Court; Mr Tariq cross‑appealed.

Nature of the claim / relief sought: Mr Tariq sought to establish unlawful direct or indirect discrimination and related remedies (damages and legal relief) arising from withdrawal of security clearance.

Issues before the Supreme Court: (i) whether the closed material procedure authorised by the Employment Tribunals rules is compatible with EU law and Article 6 ECHR; (ii) whether Article 6 requires an absolute rule that the claimant be given sufficient detail (gisting) to enable him to give effective instructions to his legal team/special advocate.

Court’s reasoning: The Court reasoned that procedure is primarily national but must afford effective legal protection in line with EU law; in assessing adequacy of procedure the jurisprudence of the European Court of Human Rights is a primary guide. The Court reviewed authorities (including A v United Kingdom, AF (No 3), Kadi and Kennedy) and concluded that closed material procedures with special advocates can provide effective protection where the tribunal, having inspected material and heard the special advocate, is satisfied that non‑disclosure is strictly necessary and that adequate counter‑balancing safeguards exist. The Court rejected a universal, absolute requirement of detailed gisting in all Article 6 civil cases, holding instead that the need for gisting is context‑sensitive; in particular, in security‑vetting cases the public interest in protecting the efficacy of vetting and sources can justify withholding detailed gisting subject to careful judicial review and the role of the special advocate.

Disposition: Home Office appeal allowed; Mr Tariq’s cross‑appeal dismissed. The Employment Tribunal retains a duty to review orders and to ensure necessary balancing between disclosure and national security.

Home Office appeal allowed; Mr Tariq cross‑appeal dismissed. The Supreme Court held that the statutory scheme permitting closed material procedure with appointment of a special advocate is capable of being compatible with Article 6 ECHR and with EU law so long as the tribunal ensures effective legal protection by careful balancing and ongoing review. There is no absolute Article 6 requirement that the claimant personally must always be given full detailed "gisting" of secret allegations in security‑vetting cases; the necessity for and extent of gisting is context‑sensitive and for the tribunal to determine in light of national security interests and available safeguards.

Employment Tribunal ordered a closed material procedure (15 February 2008). The Employment Appeal Tribunal dismissed Mr Tariq’s challenge (16 October 2009, UKEAT 168/09, reported [2010] ICR 223). The Court of Appeal (4 May 2010) [2010] EWCA Civ 462, [2010] ICR 1034 upheld the tribunal’s power to order a closed procedure but held Article 6 required 'gisting'; the Home Office appealed to the Supreme Court and Mr Tariq cross‑appealed.