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Special procedure can be used to protect national security in employment tribunals

14 July 2011

A special procedure which excludes claimants and their lawyers can be used at employment tribunals to protect national security, the Supreme Court has ruled.

The case involved an immigration officer whose security clearance was withdrawn after his cousin, Tanvir Hussain, was convicted of conspiracy to murder and sentenced to life imprisonment for planning to blow up a passenger aircraft.

Giving the leading judgment in Tariq v Home Office [2011] UKSC 35, Lord Mance said Kashif Tariq claimed he was the victim of race or religious discrimination.

Tariq challenged an order made at his employment tribunal for a ‘closed material procedure’ to protect national security.

Lord Mance said Tariq alleged, among other things, that “the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or ‘brainwashing’ and had indirectly discriminatory security policies, procedures and methods of investigation.

“The Home Office in its grounds of resistance denied this and maintains, as stated, that it acted throughout to protect national security.”

Lord Mance said that “in the penal context” an individual was presumed innocent until proved guilty and the state should “forego prosecution” rather than take the risk of an innocent person being found guilty.

“These imperatives do not operate in quite the same way in a civil context like the present, where the state may not be directly involved as a party at all,” he said.

“The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a tribunal or court which has before it material enabling it to do this.

“In considering how this may be achieved, if a defendant can only defend itself by relying on material the disclosure of which would damage national security, a balance may have to be struck between the interests of claimant and defendant in a civil context.”

Lord Mance allowed the appeal by the Home Office against the Court of Appeal’s ruling that the claimant must at least be told the “gist” of the allegations made during the ‘closed material’ procedure. He rejected a cross-appeal by Tariq.

Lord Hope agreed. He said no one doubted Tariq’s rights not to be discriminated against.

“But it was his own choice to seek employment in a post for which, in the interests of national security, security clearance was required. He was a volunteer, not a conscript.

“This is not a case where he is the victim of action taken against him by the state which deprived him of his fundamental rights.”

Lords Brown and Dyson also agreed, for their own reasons. Lords Phillip and Clarke and Lady Hale concurred. Lord Rodger, who sadly died before this judgment was delivered, had indicated that he agreed with the majority.

Lord Kerr dissented. “It seems to me that there is no principled basis on which to draw a distinction between the essence of the right to a fair trial based on the nature of the claim that is made,” Lord Kerr said.

“A fair trial in any context demands that certain indispensable features are present to enable a true adversarial contest to take place.”

In a separate but related ruling, Al Rawi and others v The Security Service [2011] UKSC 34, the Supreme Court ruled, by a majority of five to three, that the courts had no power to order closed material procedures when dealing with civil claims for damages.

Lord Rodger had indicated, before his death, that he would have supported the majority.

The claimants had already won compensation for their detention and alleged mistreatment by foreign authorities, including at Guantanamo Bay, but the case continued to clarify the point of law.

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