Human rights

first_img Carnduff v Rock [2001] All ER (D) 151 (May) considered; Kennedy v United Kingdom (Application No 26839/05) [2010] All ER (D) 224 (May) considered. Decision of Court of Appeal [2010] All ER (D) 08 (May) Reversed. The employee was employed as an immigration officer by the Home Office. In February 2003, he received the necessary security clearance. In August 2006, he was suspended from duty on basic pay, while consideration was given to the withdrawal of his security clearance. In December, his clearance was withdrawn. His internal appeal against that decision was dismissed, and his further appeal to the Security Vetting Appeals Panel was unsuccessful. The background for those decision was the arrest of the employee’s brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. The employee’s cousin was convicted in 2008 of various offences in relation to that plot. No information suggested that the employee himself had been involved in the terrorism plot. The employee brought a complaint before the employment tribunal alleging that his security clearance as an immigration officer had been withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that that was contrary to the Race Relations Act 1976 (the 1976 Act) and the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 (the 2003 Regulations). He stated at the outset that he had been advised that his suspension and the withdrawal of his security clearance had been because of his perceived association with certain relatives or associates of relatives suspected of association with terrorist activities and the risk of their attempting to exert influence on him to abuse his position. He denied any such association or risk. In July 2007, he provided particulars which alleged, inter alia, 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 contended that there had been no such discrimination and that the decisions taken in relation to the respondent had been taken for the purposes of safeguarding national security. Rule 54(2) of Sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861 (the 2004 Regulations) provided for the adoption of a closed material procedure if the tribunal so ordered. Schedule 2 provided for the use of special advocates, whose role was to represent a claimant’s interests so far as possible in relation to the aspects closed to him and his representatives. The tribunal made an order for a closed material procedure, directing that the employee and his representatives should be excluded from proceedings when closed evidence or documents were being considered. The employee’s challenge to the tribunal’s order for a closed material procedure was dismissed by the Employment Appeal Tribunal ([2009] All ER (D) 100 (Nov)), and the Court of Appeal, but it was declared that art 6 of the European Convention on Human Rights ‘requires [the appellant] 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’, even if that put the Home Office ‘in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended’. The Home office appealed to the Supreme Court against the declaration and the respondent cross-appealed against the conclusion that a closed material procedure was permissible. The employee contended that r 54(2) of the 2004 Regulations was contrary to European law and/or the European Convention on Human Rights. He submitted that it was in conflict with European Legal Principles governing discrimination, contained in the European Treaties and in the Race and Employment Directives, to which the 1996 Act, the Race Relations Act 1976 and the Employment Equality Regulations all had to be read, at least as far as possible, as being subject. The appeal would be allowed (Lord Kerr dissenting). The cross-appeal would be dismissed. (1) The demands of national security might necessitate and under European convention law justify a system for handling and determining complaints under which an applicant was, for reasons of national security, unable to know the secret material by reference to which his or her complaint was determined. The critical questions under the convention were whether the system was necessary and whether it contained sufficient safeguards. However, subject to satisfactory answers on those questions, national security considerations might justify a closed material procedure, closed evidence and, furthermore, a blanket decision leaving the precise basis of the determination unclear (see [36] of the judgment). The legitimacy of closed hearings and of the use of a special advocate were matters of procedural law. Procedure was primarily a matter for national law. It was, however, a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensured respect for the relevant right. The question was whether the closed material procedure authorised by United Kingdom law provided effective legal protection, by establishing a system of legal remedies and procedures to ensure respect for the relevant rights conferred by the 1976 Act and the 2003 Regulations in implementation of the United Kingdom’s obligations under the two directives. The principles of European law which arose for consideration in the instant case were clear. In particular, there had to be effective legal protection in respect of the rights not be discriminated against which the respondent had invoked, and, so far as guidance was necessary, it was to be found for the relevant purposes in the European Convention on Human Rights and the case law of the European Court of Rights. The principles which the European Court of Human Rights would apply in the area of national security had been confirmed by the decision in Kennedy v United Kingdom ([2010] All ER (D) 224 (May)). In the circumstances, the use of a closed material procedure before the tribunal had been lawful (see [15], [18], [61] of the judgment). Accordingly, the cross appeal would be dismissed (see [62] of the judgment). Robin Allen QC and Paul Troop (instructed by Russell Jones & Walker) Solicitors for the employee. James Eadie QC and Catherine Callaghan (instructed by the Treasury Solicitor) for the Home Office. Kennedy v United Kingdom (Application No 26839/05) [2010] All ER (D) 224 (May) applied; Esbester v United Kingdom (Application 18601/91) 18 EHRR CD 72 considered; Leander v Sweden (Application 9248/81) 9 EHRR 433 considered; Unibet (London) Ltd v Justitiekanslern: C-432/05 [2007] All ER (D) 217 (Mar) applied. (2) The question was whether there was in the convention, as explained by the European Court of Human Rights, any absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively. Clearly, it was a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it would lead to a claimant not knowing of such allegations in such detail. It was an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it was essential in the particular case. However, in light of the clear line of jurisprudence culminating in the decision in Kennedy v United Kingdom ([2010] All ER (D) 224 (May)), to say that it was not possible under the convention as interpreted by the Court in Strasbourg was impossible (see [67]-[69] of the judgment). Accordingly, the appeal would be allowed (see [69] of the judgment). center_img Home Office v Tariq: Supreme Court (Lords Phillips P, Hope DP, Rodger, Brown, Mance, Kerr, Clarke, Dyson and Lady Hale): 13 July 2011 Right to a fair hearing – Employment proceedingslast_img