Home Office v Tariq
Under discrimination legislation the Government can require certain changes to normal tribunal procedure in cases where national security is an issue. In Home Office v Tariq the Court of Appeal said that although tribunals can exclude a claimant and their representative from the proceedings in the interests of national security, they must disclose the gist of the material to give the claimant the chance to challenge it effectively.
Mr Tariq was cleared to work as an immigration officer with the Home Office in 2003, but was suspended in August 2006 due to “national security concerns” and in December his clearance was withdrawn. This was because two close relatives had been arrested in connection with a plot to mount a terrorist attack, one of whom was subsequently convicted.
He brought claims in March 2007 of direct or indirect discrimination on the grounds of race and/or religion. The Home Office said it could rely on the exception of “national security” under both the Race Relations Act (RRA) and the Employment Equality (Religion or Belief) Regulations 2003, which meant it could exclude the claimant and/or his lawyers from the hearing. It also claimed that, because of its sensitive nature, much of the evidence against Mr Tariq could not be heard in public, nor could he see it.
Tribunal and EAT decisions
The tribunal decided that it had the power under rule 54(2) of the 2004 Employment Tribunals Rules of Procedure to hear some of the case against Mr Tariq under a “closed material” procedure and that it would hear that evidence before the open material.
Mr Tariq appealed to the EAT on this point, but it also ruled that the closed material procedure was lawful. However, as a result of the decision in Secretary of State for the Home Department v AF (No.3), (given after the tribunal had come to its decision) it said he had a right under article 6 of the European Convention on Human Rights (ECHR) to be told the gist of the allegations against him so that he could challenge them effectively.
Court of Appeal decision
The Court of Appeal agreed with the EAT that there was nothing to stop a tribunal from ordering a closed material procedure under EU law or article 6.
However, it then said that although the closed material procedure did not breach article 6, Mr Tariq was entitled to be told enough about the case to be able to instruct a special advocate. This rule applied, the Court said, even though “sometimes ... national security will thereby be put at risk."
It also said that The Home Office was wrong to argue that the case of AF(No 3) did not apply just because it concerned a control order rather than a discrimination claim. The reality was “that the Home Office is seeking to rely on closed material in its defence. Whilst the Rules permit that, it seems to me that the principle illustrated by AF(No.3) must apply to ensure that fairness to which Mr Tariq is entitled by Article 6 and at common law”.
Although this may mean that public authorities have to make difficult decisions about disclosure and whether or how a claim is to be defended, that is just the “consequence of the requirements of justice”, according to the Court.