Home Office v Tariq

A closed material procedure, supported by a special advocate, may lawfully be used in civil discrimination proceedings where national security requires secrecy and the procedure contains sufficient safeguards. Article 6 does not impose an absolute requirement that the claimant always receive a gist sufficient to instruct representatives effectively.

The tribunal must allow as much disclosure as the circumstances permit. It must scrutinise the asserted security need, balance the competing interests, and keep both closure and disclosure under review. The degree of disclosure depends on the nature and importance of the allegations, the security interest in withholding them, their significance to the defence, and the effect of non-disclosure on the claim. The stricter disclosure rule applicable where liberty is gravely restricted does not govern every civil claim.

Mr Tariq, an immigration officer, claimed direct or indirect race and religious discrimination after the Home Office suspended him and withdrew his security clearance. The Employment Tribunal ordered a closed material procedure under rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, with a special advocate under rule 8 of Schedule 2.

The Employment Appeal Tribunal dismissed his challenge to that procedure but declared that article 6 required sufficient detail of the allegations to enable effective instructions. The Court of Appeal upheld both conclusions in Home Office v Tariq [2010] EWCA Civ 462. The Home Office appealed against the gisting declaration. Mr Tariq cross-appealed against the lawfulness of the closed procedure under European Union law and the Convention.

By a majority on the Home Office appeal, and unanimously on the cross-appeal: the Home Office appeal was allowed, the declaration requiring gisting in every case was set aside, and Mr Tariq’s cross-appeal was dismissed.

1. Per Lord Mance, whose reasoning commanded the majority, national procedural rules must secure effective legal protection for rights derived from European Union equality law. A closed material procedure concerns procedure rather than derogation from substantive equality rights. Convention jurisprudence permits secrecy required by national security where the system is necessary and contains sufficient safeguards. The tribunal’s independent control, continuing review and use of a special advocate met that standard.

2. Article 6 does not create an absolute rule that every civil litigant must receive sufficient detail to give effective instructions on every allegation. The stringent rule applied to detention and control orders reflected their grave impact on liberty. Security-vetting discrimination proceedings fall into a different context. The general nature of the Home Office case had been disclosed, and the claim concerned civil compensation rather than detention or a severe restriction of liberty.

3. The tribunal must critically inspect the material and hear the special advocate before permitting secrecy. Closure is permissible only where essential and must remain under review. The tribunal may require further disclosure, or require the state to withdraw reliance on material, after weighing the nature of the allegations, the security interest in non-disclosure, their importance to the defence, and the effect of disclosure or non-disclosure on the claim.

4. The special-advocate arrangements were not rendered unfair by appointment through the Attorney General or by administrative support from the Special Advocates Support Office. Special advocates act independently. The established separation arrangements were adequate, and the advocate could challenge non-disclosure, test evidence, seek permission to communicate, call evidence where appropriate and participate in an appeal.

5. No reference to the Court of Justice was required. The governing European Union principles were clear, and the questions concerned applying established criteria to the particular procedure.

Lord Kerr dissented on the Home Office appeal. He considered that common law fairness and article 6 required sufficient information to permit an effective challenge in every justiciable case, although he agreed that the statutory closed procedure was lawful in principle.

1. United Kingdom Supreme Court: In Home Office v Tariq [2011] UKSC 35, the Home Office appeal was allowed, the gisting declaration was set aside, and Mr Tariq’s cross-appeal was dismissed.
2. Court of Appeal: In Home Office v Tariq [2010] EWCA Civ 462, [2010] ICR 1034, the court upheld the lawfulness of the closed material procedure and the declaration that article 6 required sufficient detail for effective instructions.
3. Employment Appeal Tribunal: In UKEAT 168/09, [2010] ICR 223, the tribunal dismissed Mr Tariq’s challenge to the closed procedure and made the gisting declaration.
4. Employment Tribunal: On 15 February 2008, the tribunal ordered a closed material procedure under rule 54, subject to later review, and subsequently brought the special advocate’s role into effect.