Supreme Court rules that secret evidence can be used in employment tribunals
13 July 2011
The Supreme Court ruled today in Tariq v Home Office that the "closed material procedure" can be used in employment tribunal proceedings as long as such a system is necessary for national security and where sufficient safeguards exist so as to protect the interests of the claimant.
Mr Tariq was employed as an immigration officer until 2006 when he was suspended. This decision was taken after Mr Tariq's brother and cousin were arrested on suspicion of terrorist activity.
There was no information to suggest that Mr Tariq was involved in any terrorist plot and he launched proceedings against the Home Office claiming in the Employment Tribunal that he had been discriminated against both directly and indirectly on grounds of race and religion.
During the Employment Tribunal an order was made for a "closed material procedure". The order would have meant Mr Tariq and his representatives would have been excluded from seeing evidence being presented. Mr Tariq appealed against this order in both the EAT and the Court of Appeal. Both Courts dismissed the appeal.
The Court of Appeal however declared that under Article 6 of the European Convention of Human Rights Mr Tariq should be allowed to know some detail of the allegations "to enable him to give instructions to his legal team" - a process known as gisting.
The Home Office appealed against the Court of Appeal's "gisting requirement" and Mr Tariq appealed against the judgment that the closed material procedure was permissible.
The Supreme Court ruled by a majority of 8 - 1 that the closed material procedure is compatible with Article 6. Such a system was necessary in this case because of the highly sensitive nature of security vetting and because safeguards in the form of special advocates were sufficient to protect the claimant's interests.
The Supreme Court also ruled that the Court of Appeal had erred in its decision to allow Mr Tariq to know the gist of the allegations against him. The Supreme Court said that this right did not apply in this case because Mr Tariq's liberty was not at stake and that he would be assured the right to a fair trial because his case was being heard by an independent tribunal.
The Supreme Court also handed down judgment today in Al Rawi and others V the Security Service and others, a case which considered whether the court has the power to order a closed material procedure as opposed to the more normal alternative - the public interest immunity certificate.
The Court ruled, significantly, that the Court had no power at common law to replace public interest immunity, whereby a judge decides whether it is in the public interest that certain material should be excluded from a hearing, with a closed material procedure. It did note that Parliament could change this in future if it so chose.
In this case, therefore, the Security Services could not defend themselves against allegations that they had aided and abetted in the torture of the respondents (Guantanamo Bay detainees) by relying on evidence which the respondents could not see.
Barrister Rachel Crasnow from Cloisters said: "This decision is in stark contrast to the position established in the judgments in Al-Rawi as to the common law which states that equality before the law means open justice. It is difficult to see how exactly Mr Tariq can have any confidence in a system that assesses his right to equality behind closed doors in a process in which he cannot participate. It seems certain that this case will be reviewed by the European Court of Human Rights. In that context the dissenting judgment of Lord Kerr is particularly important. The former Lord Chief Justice of Northern Ireland was not prepared to accept that it was fair to permit the Home Office to put forward its defence in the absence of Mr Tariq and in such a way that he could not know what was the gist of the allegations that were being made."
Coverage of this case can be found here
Robin Allen QC, Head of Cloisters Chambers with Paul Troop of Tooks Court represented Mr Tariq in the Supreme Court.