On appeal from: [2010] EWCA Civ 462

Concerns the permissibility of the procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security. In particular the question arises as to whether such a procedure, known as a “closed material procedure”, is compatible with EU law and the ECHR. The Employment Tribunals Act 1996, s 10(6) provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security and the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Sch 1, r 54(2) provides for the adoption of a closed material procedure if the tribunal so orders. The Court of Appeal, held that ECHR, art 6 required Mr Tariq “to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively” – a requirement is known as “gisting”.

Held: by a majority of 8-1 allowing the Home Office’s appeal against the Court of Appeal decision requiring a “gist”. Strasbourg authority recognised that there was no absolute requirement along the lines suggested by the Court of Appeal. Where the liberty of the subject is involved, art 6 requires the provision of a gist. In cases not involving the liberty of the subject, however, the question was whether the use of the closed material procedure would impair the very essence of the right to a fair trial. That could not be said to be so, as Mr Tariq’s claim will be determined by an independent and impartial tribunal.

The Supreme Court also unanimously dismissed Mr Tariq’s cross-appeal, holding that a closed material procedure was compatible with both art 6 and EU Law. The CJEU is clear that EU law will look for guidance on the subject of closed material procedures in the case-law of the ECtHR. That Court has established that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined. The tests are whether the system is necessary and whether it contains sufficient safeguards. The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected. The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so. The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimant’s interests.

For judgment, please download: [2011] UKSC 35
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