Case closed

In one of the most eagerly awaited Supreme Court decisions of the year, a nine-judge bench has given judgment in Al Rawi v Security Service [2011] UKSC 34 and Tariq v Home Office [2011] UKSC 35 (see solicitorsjournal.com, 14 July 2011). The cases concern the use of secret or closed material proceedings in civil claims, in which evidence is concealed from the party concerned because of national security concerns and disclosed only to a special advocate appointed by the Attorney General.

At present closed proceedings are permissible, albeit highly criticised, in the context of control orders under the Prevention of Terrorism Act 2005 and cases heard by the Special Immigration Appeals Commission. Their use in ordinary civil claims and employment tribunal proceedings has never been scrutinized, until now.

Al Rawi involved a civil claim for damages brought by, among others, Binyam Mohammed against the government for its alleged complicit involvement in their alleged detention, rendition and mistreatment in various locations including Guantanamo Bay. The government sought to rely upon secret evidence in its defence in closed proceedings which could not be disclosed to the claimants in the interests of national security, but would be available to a special advocate who represents the claimants in closed proceedings.

Tariq concerned an employment tribunal claim in which an immigration officer was suspended and his security clearance was withdrawn because of his association with relatives who were arrested for planning to mount terrorist attacks on transatlantic flights. His brother was subsequently released without charge but Mr Tariq's cousin was convicted of conspiracy to murder. Although no information suggested that Mr Tariq was involved in any terrorist plot, it was considered that his association with such individuals might put him at risk of them exerting influence on him to abuse his position as an immigration officer.

Again the government wished to defend the race and religious discrimination claim by relying upon secret evidence in closed proceedings. Closed proceedings in the employment tribunal are permitted under schedule 1, rule 54(2) of the Employment Tribunals (Constitution of Procedure) Regulations 2004 if it is expedient in the interests of national security. The regulations also provide for the appointment of a special advocate to represent the interests of the claimant in closed proceedings.

Closed proceedings and the use of special advocates has always been controversial. The basic problem with closed proceedings is that neither the claimant nor his legal advisers can participate. The special advocate who is tasked with representing the claimant in closed proceedings is prohibited from communicating with the claimant about the closed material and is not allowed to take instructions from the client about it. Not surprisingly this has raised issues about the right to a fair trial under article 6 of the European Convention on Human Rights.

Inconsistent with natural justice

In the Court of Appeal, the claimants in Al Rawi won. The Court of Appeal did not recognise any implied power to hold closed proceedings in ordinary civil cases. In Tariq, however, the Court of Appeal approved of the use of closed proceedings since the relevant statutory regulations permitted it. However, the Court of Appeal held that article 6 required the claimant to be informed of the allegations against him in sufficient detail to enable him to give instructions to his legal team '“ a requirement known as 'gisting'.

In Al Rawi the Supreme Court held that the court does not have a common law power to order closed proceedings in ordinary civil claims including judicial review as an alternative to the more conventional public interest immunity certificate. Such a procedure was inconsistent with the fundamental common law right to natural justice, and is only permissible by statute. Lord Dyson, giving the lead judgment, said: 'The right to be confronted by one's accuser is such a fundamental element of the claimant's right to a fair trial that the court cannot abrogate it in the exercise of its inherent power.' He added: 'Only parliament can do that.'

Which is precisely what the government now intends to do. It is preparing a green paper which is expected to incorporate the use of closed proceedings in ordinary civil claims. Even if legislation is enacted which extends the scope of closed proceedings in ordinary civil claims it will still have to withstand scrutiny under the Human Rights Act and be compatible with the right to a fair hearing.

In Tariq in the context of employment tribunal proceedings by a majority of 8-1 the Supreme Court allowed the Home Office's appeal against the Court of Appeal decision requiring 'gisting' since the outcome would be determined by an 'independent and impartial tribunal'. The Supreme Court also unanimously rejected Mr Tariq's cross-appeal, holding that a closed procedure in employment tribunal proceedings was compatible with article 6 and the system contained sufficient safeguards in the form of special advocates, who can protect the claimant's interests in the closed session.

Had Mr Tariq succeeded, the government would have been obliged to rethink the whole system of closed proceedings in employment tribunal cases and would have been required to make some difficult and uncomfortable decisions about disclosure and whether to defend such claims. The Supreme Court clearly felt that the consequences would be unpalatable.