Rahman v Commissioner Of Police Of The Metropolis & Anor

In national-security Employment Tribunal proceedings, the communication restriction in rule 8(4)(a) of Schedule 2 applies to all written grounds on which the respondent resists the claim. It therefore covers both open and closed material supplied to the special advocate, regardless of how the exclusion order was made.

A special advocate may not communicate about the substance of the respondent’s case without the Tribunal’s permission. The Tribunal can, and ordinarily should, authorise unrestricted communication before the advocate sees closed material. The advocate may otherwise communicate freely about matters unconnected with the substance of the respondent’s case.

The appellant, a former probationary police officer, brought claims of direct and indirect race and religious discrimination after his counter-terrorist security clearance was suspended and then withdrawn. The Metropolitan Police relied on national-security concerns.

An Employment Judge made an order under rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, excluding the appellant and his representatives from part of the proceedings and appointing a special advocate. The appellant appealed that order. A later Employment Judge held that the special advocate could communicate with the appellant and his representatives on open matters; the respondents cross-appealed.

The issues were whether the appellant’s dismissed appeal should be reinstated and whether rule 8 of Schedule 2 prevented communication on open matters concerning the respondent’s case.

1. The cross-appeal was allowed. Rule 8(4)(a) of Schedule 2 prohibited the special advocate from communicating with the excluded person or his representatives about any matter concerning the substance of the respondent’s case, whether the material was open or closed.

2. Rule 8(1) permits appointment of a special advocate whenever there is an excluded person. It does not confine the appointment to cases in which a Minister has made a direction or addressed the Tribunal before an order under rule 54(2). It would therefore be surprising for rule 8(4) to make the scope of the communication prohibition depend on the route by which the exclusion order was made.

3. The reference in rule 8(4)(a) to the grounds for response in rule 3(3) defines the subject matter of the prohibition. It encompasses the written grounds on which the respondent resists the claim and includes the open response as well as closed grounds treated as part of it. The contrary construction adopted below was erroneous.

4. The result is that, absent permission, the special advocate cannot discuss even the open case before seeing closed material. That consequence is capable of remedy by the Tribunal. When making a rule 54 order, it can and should routinely authorise communication before the advocate has seen closed material. After that, the advocate remains free to discuss procedural and other matters not concerning the substance of the respondent’s case.

5. The appellant’s appeal was reinstated but stayed. The earlier dismissal resulted from excusable mishaps. The appellant acted reasonably promptly once the position was discovered. Although Tariq had definitively determined the immediate legal challenge, a future decision of the Strasbourg or Luxembourg court could require domestic reconsideration. The dismissal order was revoked, the appeal reinstated, and the stay could be lifted only by order of the EAT President.

6. In further observations, the Tribunal stated that cogent grounds would be needed to exclude the public from parts of the proceedings in which the appellant and representatives were present. Having examined the underlying closed material, it was satisfied that the original rule 54(2) exclusion order was justified.

• Employment Appeal Tribunal: The appellant’s appeal from the exclusion order was initially dismissed following an unless order. This judgment revoked that dismissal, reinstated the appeal and stayed it. It also allowed the respondents’ cross-appeal from the special-advocate communication ruling.
• Employment Tribunal: Regional Employment Judge Latham made a rule 54(2) national-security order excluding the claimant and representatives from part of the proceedings. Employment Judge Lewzey later held that the special advocate was free to communicate on open matters.