National Crime Agency v DP & Ors

In employment proceedings, Investigatory Powers Act 2016 section 56(1)(b) must, so far as possible, be read compatibly with fair-trial rights. It applies where material tends to suggest particular interception-related conduct, rather than merely an employee’s general role involving intercepted communications.

This construction preserves the protection of national security while allowing the Employment Tribunal to assess whether restrictions are necessary and proportionate. The tribunal must balance the risk of prejudice to national security against open justice and the employee’s effective participation. It may use less intrusive measures, private hearings, anonymity, restricted reporting, closed procedure or a special advocate, and must keep protective measures under review.

The Employment Appeal Tribunal determined a common issue arising in four linked employment appeals. The assumed, but neither confirmed nor denied, premise was that the claimants had worked in roles involving material obtained through lawful interception of communications.

The National Crime Agency contended that any open reference to such roles was barred by section 56(1)(b) of the Investigatory Powers Act 2016. On that construction, the claims could proceed only in closed proceedings from which the employees and their representatives were excluded.

The question was whether section 56 required that result, notwithstanding the Employment Tribunal’s national-security powers and the claimants’ rights to a fair hearing under article 6.

1. Issue determined; disposal of the individual appeals reserved. Section 56(1)(b) of the Investigatory Powers Act 2016 did not require every employment claim by a person assumed to have dealt with intercepted communications to be heard wholly in closed session.

2. Read literally, section 56(1)(b) was exceptionally broad. The Agency’s construction would make closed procedure mandatory whenever a claim involved a general suggestion that the employee had worked with intercepted material. It would also prevent the tribunal from giving any gist to the employee under paragraphs 14 and 15 of Schedule 3.

3. That result would displace the judicial and proportionate assessment which makes closed procedure compatible with article 6. It would prevent consideration of less intrusive safeguards, although the tribunal has statutory and procedural powers to protect national security while preserving participation and open justice as far as possible.

4. Applying section 3 of the Human Rights Act 1998, section 56(1)(b) was to be read, in this employment-law context, as applying where an act tends to suggest that particular interception-related conduct has occurred, may have occurred, or may occur. The added qualification goes with the purpose of the legislation: protecting sensitive information and national security, not imposing a blanket exclusion where only the employee’s broad job role is in issue.

5. Whether conduct is sufficiently particular is for the Employment Tribunal. Relevant matters include the seriousness and likelihood of prejudice to national security if the conduct becomes known, the employee’s fair-trial interests, and the availability of other measures. Protective orders must be kept under review. If evidence of particular interception-related conduct arises as the cases progress, section 56 must then be applied.

• Employment Appeal Tribunal: determined a common statutory-construction issue arising in four linked appeals. The individual appeals were not finally disposed of in this judgment.