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Supreme Court: National Security Proceedings in ETs

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[Thanks to Nicholas Hill of Outer Temple Chambers for preparing this case summary]

The Supreme Court has handed down its decision in Home Office v Tariq, holding that the use of a closed material procedure in employment tribunal proceedings is compatible with Article 6 of the European Convention on Human Rights and EU Law.

Mr Tariq was suspended from his job as an immigration officer with the Home Office after the arrest of his brother and cousin as part of a major counter-terrorism investigation. There was no suggestion that Mr Tariq had been involved in any terrorism. Mr Tariq commenced proceedings in the Employment Tribunal for direct and indirect discrimination on grounds of race and religion. The Home Office denied the claims and made a successful application for use of a closed material procedure. The procedure excludes a claimant and his representative from certain aspects of the proceedings on grounds of national security. The claimant's interests are represented by a special advocate.

The Court of Appeal dismissed Mr Tariq's appeal but declared that Article 6 required Mr Tariq to be provided with the gist of the allegations made against him.

The Home Office appealed against the declaration and Mr Tariq cross-appealed against the conclusion that a closed material procedure was permissible.

The Supreme Court unanimously dismissed Mr Tariq's cross-appeal and by a majority of 8-1 allowed the Home Office's appeal.

It is a basic principle of EU law that national law should provide effective legal protection of EU law rights. In considering whether a closed material procedure provides effective legal protection the courts should look for guidance in the case-law of the ECHR The ECHR has established that 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 system was necessary and contained sufficient safeguards in the form of special advocates.

Article 6 provides the right to a fair trial. The ECHR has held that that where the liberty of the subject is involved the provision of a gist is required by Article 6 but this case did not involve the liberty of the subject. The procedure would not impair the very essence of the right to a fair trial because the claim would be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to would as far as possible be minimised.