England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ ANSELL - SITTING ALONE
EAT/0394/05/DA

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2006

Lord Justice Mummery :

Introduction

1. The appellant's claim is for race discrimination. The case is still in its infancy. The issue on this appeal stems from the respondents' refusal in the initial stages of case management to disclose relevant information to the appellant or, in the absence of special safeguards, even to the employment tribunal itself.
2. The tribunals below have taken very different positions on the disclosure point: the employment tribunal made an "unless order" requiring disclosure, which the Employment Appeal Tribunal set aside after hearing full legal argument including, exceptionally in my experience, some legal submissions from the respondents in the absence of the appellant and her advisers. The difference in views is not surprising, however, in a sensitive area of increasing importance-security vetting in the employment field and protection sought against the disclosure of the methods used and the information obtained by them.
3. Security vetting for sensitive jobs is essential. There is nothing intrinsically discriminatory about it. Circumstances may require secrecy of methods and results. In all circumstances and consistently with preserving the effectiveness of security vetting, the tribunals must do the best that they reasonably can to devise procedures to ensure that avoidable injustice is not inflicted on individual applicants. A flawed vetting process could have disastrous consequences for the public and for the individual: it could result in appalling loss of life; it could result in the unjust loss of a livelihood.
4. The focus of the decision in the Employment Appeal Tribunal was on the claimed incompatibility of legal, but so far unidentified and perhaps unidentifiable, restrictions on disclosure of vetting information with the appellant's right to an effective judicial remedy for breach of a European Community right to equal treatment and with the right in Article 6 of the Convention to a fair hearing of the appellant's race discrimination case.
5. During the course of the hearing of this appeal, however, it became increasingly evident to the court that it was neither necessary nor even desirable to resolve the Community law and Article 6 issues in advance of the substantive hearing in the employment tribunal, at which it ought to become clearer than it is now how much relevant evidence can be given to the tribunal by each side and without risk of the respondents breaching possible legal restrictions on disclosure of security vetting procedures and information.
6. For reasons explained below I have reached the clear conclusion that it would be premature for this court to rule now on the EC and ECHR issues decided by the Employment Appeal Tribunal and canvassed in detail in the written submissions on this appeal. These interesting issues may even turn out to be hypothetical. In such circumstances it is prudent to proceed with caution and to wait and see what evidence will actually be available at the substantive hearing. There is other evidence relevant to the race discrimination claim which has not yet been obtained, but which can be obtained, by the parties for use in the proceedings without running any risk of breaching restrictions on the disclosure of more sensitive evidence.
7. This restrained approach to the appeal may, I appreciate, seem less than helpful to the parties and their advisers, who have taken an enormous amount of trouble to prepare full legal arguments on the legal points only to find a reticent court reluctant to rule on them at this stage. I can assure them that their time and effort have not been wasted, as it was essential for the court to become familiar with the range of legal arguments before it could decide whether it should deal with them definitively ahead of the hearing by the employment tribunal of all the evidence that is unaffected by the unidentified restrictions on disclosure.

The proceedings

8. The claim presented to the employment tribunal on 24 May 2004 is for direct race discrimination contrary to sections 1(1) (a) and 4 of the Race Relations Act 1976 (the 1976 Act). No defence of justification is available in a case of direct discrimination. The discrimination is alleged to have occurred in connection with an unsuccessful application by the appellant, Ms Janet Barracks, for a position as a Field Intelligence Officer in a new "desk" established by the Metropolitan Police. She was invited to apply for the post, for which a white police officer was later selected. Ms Barracks was naturally disappointed. She has been a police officer with the Metropolitan Police since August 1991. She continues to serve with that force, but believes that she was not selected for the job because she is black. There has been less favourable treatment (She was not selected for the post, a white officer was). The crucial question is why was she not selected (Was it for a racial reason? Or was it for some other, non-racial reason?) Although she may not have suffered any financial loss (she still has her job), she is entitled to claim damages for injury to feelings and a declaration that she has been discriminated against on racial grounds.
9. Although the proceedings have been on foot for over 2 years, the substantive hearing of her claim has not yet taken place. This is unsatisfactory. The case has been stuck at the case management stage for a year while Ms Barracks has been seeking disclosure of detailed information explaining why she was not appointed.
10. Ms Barracks alleged in her IT1 application form that race discrimination occurred at a meeting on 18 March 2004 when she asked for feedback about her application for a post within the Operation Trident Desk or Trident Shooting Desk (now known as SCD8 Trident and Trafalgar). Trident was set up by the Metropolitan Police in response to disproportionate levels of shootings and gun-related murders in London's black communities.
11. The first respondent, Chief Superintendent Coles, is the head of Trident. At the meeting with Ms Barracks on 18 March 2004 he said, according to her, "It is inappropriate for you to join Trident" and "I can't tell you why that is. It's a difficult position." She was told that he would meet with the head of the Metropolitan Police Department of Professional Standards and then get back to her. She still did not receive an explanation for the decision not to appoint her. She instigated the Police Fairness at Work procedure. No explanation was forthcoming. In its absence she believes that she has been racially discriminated against.
12. The Commissioner of Police of the Metropolis has been joined as a second respondent. I shall refer to him and Chief Superintendent Coles simply as "the police", as I do not think that individuals feature much in this aspect of the case. It is a police force problem rather than an individual police officer's problem.
13. The police responded to the claim on 11 June 2004. The grounds of resistance, which were amended on 3 May 2005, denied that Ms Barracks had been unlawfully discriminated against on the grounds of her race or at all. The amended pleading set out a number of grounds on which the claim was resisted.
14. It was stated that, at the feedback meeting, Ms Barracks had been told that she had not been selected as a result of a vetting check, not because she was black. It was not a case of the white officer being preferred. Even if there had been no other applicant for the post, she would not have been selected for it.
15. In admitting that Ms Barracks had not been given an explanation for failing the vetting check, the police stated that they were "prohibited by law from providing the explanation" to Ms Barracks or to the tribunal (paragraphs 2 (iii) and 3 (vii) of the grounds of resistance.) It is this extraordinary feature of the case that gave rise to legal arguments on Community rights and on human rights in the tribunals below and in the written submissions on the appeal to this court.
16. The police had a related point which, in my view, has not helped them or the progress of the proceedings generally. They contended that it was an abuse of process for the discrimination claim to be litigated, as it turned entirely on reasons of which Ms Barracks was unaware and which the police were not allowed by law to disclose to the court. Ms Barracks and her advisers and the employment tribunal itself were understandably baffled when the police asserted that they were prohibited by law from disclosing even the law that prohibited them from providing the explanation for the failed vetting.
17. The issue of non-disclosure of vetting information by the police was treated as giving rise to large questions of law, which should be decided by the tribunal before the parties obtained and served any evidence. There are no witness statements or disclosure of documents from either side. Instead of proceeding to a substantive hearing of the evidence the case took off into the realms of EC law, the European Convention of Human Rights, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000 (RIPA).The result is that, as the Master of the Rolls observed during the oral hearing, the legal arguments paraded before this court are almost totally devoid of any of the factual content on which the outcomes of race discrimination claims normally turn. His observation is similar to those of Lord Phillips of Worth Matravers in R(Burke) v GMC (Official Solicitor and others intervening) [2005] EWCA Civ 1003, [2006] QB 273 at 293, paragraph 21, that there are great dangers in grappling with general issues divorced from a factual content that requires their determination-

" … The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice."

18. This sort of thing tends to happen when, through the fault of nobody in particular, novel legal points take on a rarefied life of their own and become a distracting diversion from the concrete facts of the case. In my judgment, the employment tribunal should have temporarily parked the point on the non-disclosability of vetting details without ruling on the issues of EC and ECHR law. It should have insisted on evidence and disclosure by both sides in order to see how much evidence could in fact be given by the police, as well as by Ms Barracks, about the circumstances in which the job application was rejected.
19. In order to justify these comments the course that the proceedings took in the employment tribunal and on appeal must be examined.

Employment tribunal case management hearing

20. On 16 June 2005 the Chairman of the employment tribunal held a Case Management Discussion. As appears from the reasons sent to the parties on 20 June 2005, the position adopted by the police was that the case should proceed to a hearing in order to

"7. …have an opportunity to tender the evidence of senior officers that had reviewed this decision [that is, the decision not to reveal the information about the precise reason for non-selection], and to prove the following: that even if there were no other candidate the Claimant would not have been appointed, the nature of the Trident operation, the role of the Field Officer and the sensitivity of that role, the system of vetting and matters that might be revealed, the sources of information and the nature of information that might be revealed."

21. Ms Monaghan, who has appeared for Ms Barracks throughout, submitted to the tribunal chairman that, in these circumstances, she would be unable to test the police case. Having been given no reasons for her non-selection, Ms Barracks would be denied an opportunity of having a fair hearing of her race discrimination claim.
22. The Chairman accepted Ms Monaghan's submission and concluded-

"9. It was my view that the Respondent had not provided adequate reasons for the alleged discriminatory treatment in its Response. Furthermore I considered the manner in which these proceedings were conducted by or on behalf of the Respondent was unreasonable. I was satisfied that the Claimant would be denied a fair hearing if this claim proceeded to a Hearing, as requested by the Respondent."

23. An order was made requiring the police to provide by 7 July 2005

(i)… further particulars to the Claimant and/or her solicitors stating on what ground(s) it seeks to resist her claim of unlawful race discrimination, including the reason(s) why she was not considered for the position of Field Intelligence Officer within the "Trident" shootings desk and /or

(ii) shall notify the tribunal in writing of the legal basis of its claim that by "law" it is prohibited from informing the Claimant of the reasons for her non-selection.".

24. The order provided that, unless it was complied with, the police response would be struck out on the date of non-compliance without further consideration of the proceedings. The police appealed.

The appeals

25. On 18 October 2005 HHJ Ansell, sitting alone in the Employment Appeal Tribunal, allowed the appeal by the police. He remitted the matter to the employment tribunal for a hearing on the merits without the particulars sought by Ms Barracks. On 21 October 2005 he granted permission to appeal.
26. The issue on this appeal is whether there was an error of law in the decision of the employment tribunal for, unless there was, the Employment Appeal Tribunal was wrong to allow the appeal.
27. Notice of appeal to this court was served on the Secretary of State for the Home Department. He joined in as an intervenor, as one of the points raised by Ms Barracks on her appeal is that, if she is wrong on the construction of the relevant domestic legislation, this court should make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (the 1998 Act). The declaration would relate to Article 6 of the Convention and any domestic legislation prohibiting the disclosure to Ms Barracks and the employment tribunal of relevant evidence. Mr Eicke was instructed to appear for the Secretary of State and produced a full skeleton argument submitting that there was no incompatibility.
28. A similar argument is raised under EC law regarding the construction and potential incompatibility of relevant domestic legislation prohibiting disclosure of vetting details with the provisions of Article 7 of Council Directive 2000/43/EC and the obligation of the UK to provide her with a fair hearing and an effective judicial remedy for her Community right not to be discriminated against on the grounds of race.

Employment Appeal Tribunal decision

29. As this court is asked by Ms Monaghan to reverse the judgment of the Appeal Tribunal in its entirety, I now turn to the reasons given by HHJ Ansell for concluding that the orders made by the Chairman were wrong. He held that a substantive hearing of the discrimination claim should take place in the employment tribunal without the disclosure requested. He returned the matter to the employment tribunal for the matter to be set down for a final hearing.
30. He arrived at that decision after rejecting the arguments of Ms Monaghan that legal prohibitions relied on, but not revealed by, the police for not disclosing the information requested would, if they had the effect for which the police contended, be incompatible with EC law and with Article 6 of the Convention.
31. During the hearing the judge took the exceptional course of holding a "disclosure meeting" of a kind envisaged by, for example, section 18(7) of RIPA. It was attended only by counsel for the police and Chief Superintendent Coles. Neither Ms Barracks nor her counsel and solicitors were allowed to attend. They were not told what was said at meeting. All that they know (and we know) is what the judge said about it in his judgment ie that he was

" 29. ….satisfied that the [police] are prohibited by law from revealing either the nature of the reasons for the [claimant's] negative vetting or, indeed, the legal provisions under which that refusal is made."

32. The legal basis for adopting this procedure was not revealed in the judgment.

Hearing without disclosure of vetting details

33. Before turning to the rival legal submissions on whether the police are legally required or justified in withholding vetting information, it is sensible to consider the practical position of the parties and the employment tribunal if the matter proceeded, as the police argued and HHJ Ansell held that it should, to a substantive hearing of the race discrimination claim without the vetting information.
34. First, no-one has disputed that at the hearing the burden will be on Ms Barracks to prove her case. She has to prove facts from which the tribunal could, apart from section 54A of the 1976 Act, conclude, in the absence of an adequate explanation, that the police had committed such an act of discrimination. If she proves those facts, the tribunal is then required by section 54A to uphold the complaint, unless the police prove that they did not commit the act of discrimination. The legal position on the burden of proof in the light of section 54A was recently examined by this court at length in Igen Ltd v. Wong [2005] ICR 931.
35. Secondly, there is no dispute that the information withheld would be relevant evidence at the hearing. It would provide a fuller explanation for Ms Barracks not being appointed than simply being told, as she has been, that she failed the vetting process. If the police cannot and therefore do not advance a full explanation for her failure, Ms Barracks will be unable to scrutinise and challenge it.
36. Thirdly, the absence of the vetting information would not necessarily mean either that the claim should be dismissed or that it should be allowed. It would be possible for a meaningful hearing to take place. At the hearing evidence would be given and submissions could be made by both sides on the facts and the law, including such matters as inferences to be drawn from the available evidence and on the burden of proof. The absence of the vetting information would not prevent the tribunal from reaching a decision. The employment tribunal would be able to reach a decision, albeit on less than complete evidence.
37. Fourthly, Ms Barracks could give evidence herself relevant to her non-selection for the post. She could also adduce any other evidence from which the tribunal might conclude that the police had committed an act of race discrimination and that she was not appointed on the ground of her race.
38. Fifthly, the police, including senior police officers, could give oral evidence explaining their conduct, which could be challenged by Ms Barracks in cross examination. Evidence could be given by the police on whether her race was relevant to the decision not to appoint her, whether she was treated less favourably than a white applicant for such a post was, or would have been, treated and whether she would have been appointed if she were the only applicant. More generally, evidence could be given by the police about the nature of Trident, the nature of the position for which Ms Barracks applied, the need for a security vetting check, the vetting process itself, the kinds of information that could be revealed and lead to an adverse decision, the circumstances in which the reasons for an adverse decision could not be disclosed and the internal review process undertaken to determine whether any more information could be supplied to Ms Barracks.
39. Mr David Pannick QC, who appeared for the police on this appeal (but did not appear below) submitted that, in these circumstances, considerations of fairness between the parties did not arise such as to prevent a fair hearing from taking place without the vetting information.
40. Mr Pannick pointed out that, first, if the police were unable, as a matter of law, to provide the tribunal with full reasons for not appointing Ms Barracks, they ran a risk of losing the case. By being silenced about vetting information they were disabled from defending themselves against the charge of discrimination by adducing all the oral and documentary evidence which might answer the allegations of race discrimination.
41. Secondly, there was nothing particularly unusual or surprising about this situation. There were other well-recognised instances of a litigant being precluded from access to all relevant information, as in cases of public interest immunity claims that are upheld or other information relating to sensitive security matters.
42. Thirdly, in some exceptional cases, a statutory procedure was available whereby sensitive information could be disclosed to the court, though not to the litigant. In such a procedure, which was followed by the Employment Appeal Tribunal in this case on the basis of certain assumptions, the court could see whether there was anything in the evidence withheld from the litigant which could support the claim. The point was illustrated by Mr Pannick's reference to RIPA, though he made it clear that he was not asserting or submitting that RIPA applied in the circumstances of this case.

RIPA

43. All the skeleton arguments refer to RIPA in a tentative fashion and, in particular, to sections 17 to 19. These provisions need to be explained briefly because they were discussed in the judgment below and Ms Monaghan contended, rightly in my view, that HHJ Ansell ought not, as envisaged by section 18(7) of RIPA, to have received evidence or argument from the police and their counsel at this stage and in the absence of the counsel for Ms Barracks. If, as I indicated earlier, this court takes the course of directing that the matter should proceed to a substantive hearing in the absence of the vetting information, this court should also direct the employment tribunal to disregard what the judge said in paragraph 29 of his judgment cited in paragraph 31 above.
44. RIPA features in all the written submissions on the appeal though without any assertion or suggestion by anyone that it actually applies to the facts of this case.
45. The police mention RIPA as a statutory example of a case in which the disclosure of information connected to the interception of communications is prohibited in the broadest possible terms. The police neither confirm nor deny that RIPA provided the actual legal basis for their inability to make the disclosure ordered by the employment tribunal. The disclosure hearing before HHJ Ansell was not an acceptance by the police (or by the Employment Appeal Tribunal) that RIPA applied. The submissions on RIPA are, in my view, correctly made on the basis that their application to this case can neither be confirmed nor denied. They have to be received by this court on that basis for the time being.
46. This is an orthodox and tenable position, of which judicial notice has been taken, in relation to security and intelligence matters generally. Operations in those areas can only be effectively conducted in secret. It would be self defeating to make disclosure either by confirming or by denying that intelligence gathering activities had taken place in a particular instance.
47. This need to preserve secrecy in the conduct of security and intelligence gathering activities is the explanation for the provisions in section 17 RIPA that-

"(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings….. which (in any manner)-

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.

(2) The following fall within this subsection-

(c) The issue of an interception warrant ….

(d) The making of an application by any person for an interception warrant ….."

48. Section 18 contains exceptions to the prohibition in section 17, including disclosure of information to a relevant judge (provided that he is a High Court or Circuit Judge) in a case in which the judge has ordered the disclosure to be made to him alone where he is satisfied that the "exceptional circumstances of the case make the disclosure essential in the interests of justice."
49. Section 19 provides that, where an interception warrant has been issued, it is the duty of specified persons, including every person employed by or for the purposes of a police force, to keep secret specified matters, including the existence and contents of the warrant, the steps taken in pursuance of the warrant, and everything in the intercepted material. There are criminal penalties for the disclosure of anything which is required by that section to be kept secret.
50. These provisions are potentially relevant to the position of the person who should chair the employment tribunal hearing if we remit the matter to the employment tribunal to proceed to a substantive hearing. A problem on RIPA could arise during the course of the hearing. It would be possible for disclosure of information possibly covered by section 17 to 19 RIPA to be made to a Circuit Judge if and when the occasion were to arise during the hearing. This suggestion should present no practical problems, as there are Circuit Judges who double as chairmen of the employment tribunal.

Status of EAT rulings on EC and ECHR points

51. That leaves the question of what should be done by this court about the rulings made by the Employment Appeal Tribunal on the effect of non-disclosure of vetting information and its compatibility with EC and ECHR law.
52. Ms Monaghan submitted that, if we set aside the unless order made by the employment tribunal, as the Appeal Tribunal did, and remit the matter to the employment tribunal, we should direct that the rulings against Ms Barracks in the judgment of HHJ Ansell should not bind the employment tribunal.
53. This was opposed by Mr Pannick, who submitted that the rulings were obviously right, that the grounds of appeal against them were extremely weak and that, if we dismissed the appeal, we should not disturb or throw doubt on the decision of the Appeal Tribunal on those points, which provided guidance for the employment tribunal.
54. In deciding which course to follow I shall briefly outline the submissions on the EC and ECHR points I have found the rival submissions helpful in deciding how to dispose of this appeal in a way that is sensible, efficient and just to both sides.
55. On the EC point Ms Monaghan relied on Article 2 of the Directive as providing that the principle of equal treatment means that there shall be no direct or indirect discrimination based on racial or ethnic origin within the scope of Article 3, which includes selection criteria.
56. Article 7.1 of the Directive provides for the right to an effective remedy for race discrimination-

" Member States shall ensure that judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them …."

57. Ms Monaghan cited Johnston v. Chief Constable of the RUC [1987] QB 129 at 147-148 paragraphs 13-21 in which the Court of Justice interpreted a similar provision in Article 6 of the Equal Treatment Directive 76/207/EC as conferring a right to an effective judicial remedy, which was breached by a provision of domestic law by which a Minister could conclusively certify under Article 53(2) of the Sex Discrimination (Northern Ireland) Order 1976 that the complainant in a sex discrimination case had been refused employment for national security reasons.
58. For the purposes of effective judicial control of Community rights, EC law also imposes a duty on an administrative authority to give reasons for its decisions: UNECTEF v. Heylens [1987] ECR 4097 at 4117 paragraph 15.
59. The principle of effective remedy and the principle of reasoned decisions were strongly relied on by Ms Monaghan in her submissions in support of the appeal. She submitted that there was a breach of the principle of effective judicial control in a case where the rules of evidence made reliance on the right in national courts excessively difficult. The same applied to cases of lack of available information as to the reasons for an adverse decision.
60. The Employment Appeal Tribunal had, she submitted, erred in law on the EC point by failing to consider the impact of the prohibition on disclosure of the reason for the treatment of Ms Barracks and on the effectiveness of judicial control of her claim, which turned on the reasons why she was not selected for appointment. She is unable to test the veracity or relevance of the evidence given by the police as to the reason for not appointing her or to challenge their case that it was not a discriminatory reason. Her ability to do those things will frustrate her ability to establish the necessary primary facts from which inferences of race discrimination may be drawn by the employment tribunal. Any national legislation or principle of national law which produces this situation is incompatible with the requirements of EC law for effective judicial control and reasoned decisions.
61. Against that Mr Pannick submitted that a law prohibiting the police giving reasons for not making an appointment following a security vetting procedure would not be incompatible with Article 7 or with the principle requiring reasons for administrative decisions. The case of Johnston was clearly distinguishable. The conclusive ministerial certificate in that case prevented any judicial assessment of the evidence relevant to the sex discrimination claim. In this case the employment tribunal can hear evidence from both sides and it can reach a decision. There is no denial of a hearing or of a remedy in this case.
62. Further, he submitted, the reasoned decisions principle does not apply in cases where proper public policy reasons prevent the giving of reasons. It is not an absolute principle in relation to decisions involving, for example, security matters.
63. On the ECHR point Ms Monaghan submitted that the Employment Appeal Tribunal had wrongly rejected her submissions on that point. Article 6 relates to the right of access to a court and to a fair hearing by the court for the determination of civil rights and obligations. Ms Monaghan forcefully submitted that national measures, such as those which allow the withholding of information, impinge on the effectiveness of an individual's recourse to the judicial process, which is weakened by limits on the Article 6 right. Restrictions on the disclosure of relevant information are not permitted where they impair the very essence of the right. Such limitations must be justified as pursuing a legitimate aim in a manner where the means employed are proportionate to the aims to be achieved.
64. The Employment Appeal Tribunal had rejected the Article 6 point without any analysis of the impact of the withholding of the evidence on the right to bring a race discrimination case in the employment tribunal, of the aims sought to be achieved by the limitation and whether the means used were proportionate.
65. It was submitted that the limitation on the right of access to effective judicial control is disproportionate. It has a severe impact on her claim of race discrimination, as no judicial scrutiny of the reasons for her less favourable treatment is possible.
66. Against that Mr Pannick submitted that there is no breach of Article 6 and no question of incompatibility arises. He submitted that, if there was an interference with the right to a fair trial, which he disputed, it had a legitimate aim and was proportionate.
67. The legitimate aim is the protection of national security by a procedure of security vetting for sensitive posts. The means used were proportionate to that aim. The means used were not a blanket denial of access, such as ministerial certificate denying a remedy or an effective remedy or excluding the court or tribunal from even considering and determining her claim. The limitation is the exclusion of only that evidence that would impinge on the effectiveness of security and intelligence gathering operations. There was no authority or any principle which would entitle the claimant to access to all security sensitive information. As explained above, evidence can be given on both sides. The tribunal is able to make such findings of fact as are open to it on the evidence.
68. Mr Pannick submitted that the Employment Appeal Tribunal had rightly rejected Ms Monaghan's arguments on the EC and ECHR points and that, if we remitted the matter to the employment tribunal, we should not express disapproval of the judgment.

Conclusion

69. I have reached the following conclusions as to the course which this court should follow in the exceptional circumstances of the case.
70. First, as I indicated at the outset of this judgment, I do not agree with the "unless order" made by the employment tribunal. It was rightly set aside on appeal by HHJ Ansell. Ordinarily, case management orders made in the exercise of the employment tribunal's wide discretion will not be disturbed on an appeal, which is confined to questions of law. In this case, however, it was wrong in law to make an unless order with which the police could not, on their case, comply without breaking the law, which they understood prohibited either disclosure of the information or of the legal basis for the prohibition on disclosure. The unless order unjustifiably prevented the police from defending the discrimination claim in the normal way, that is by adducing evidence in their defence at the substantive hearing. I would dismiss the appeal.
71. Secondly, although I would dismiss the appeal and uphold the decision of the Employment Appeal Tribunal on this point, I would not leave the matter as it was left by the Employment Appeal Tribunal. The matter is being remitted for a full hearing by the employment tribunal on the basis that it was wrong in law to prevent the police from defending the claim at least on the basis of evidence that they were not prohibited from adducing. This should not prevent Ms Monaghan, should the need to do so arise at the substantive hearing, from making legal submissions to the tribunal on the legal and evidential position, should the police refuse to answer a question put by her in cross examination or to produce a document relevant to their case. Those submissions may relate to the inferences to be drawn from the evidence, to the burden of proof and as to the legal entitlement of the police to refuse to answer her questions or request for documents. That, I would make clear, includes the EC and ECHR arguments outlined above. The proper way for the tribunal to deal with disputes about non-disclosure in this case was not to make an "unless order" but by a ruling if and when the need arises in the course of the hearing.
72. Thirdly, one consequence of the position explained in the preceding paragraph is that, as already indicated, I would direct the employment tribunal to disregard paragraph 29 of the Employment Appeal Tribunal judgment. If such a "disclosure hearing" is to take place at all, it should not be on the appeal from the unless order and before the available evidence is available. The proper time for deciding whether there are circumstances which might justify taking such an exceptional step is at the substantive hearing after hearing all the available evidence. In case such a situation arises, I would direct that the hearing in the employment tribunal be chaired by a Circuit Judge to whom disclosure could be made as envisaged, for example, by section 18 RIPA.
73. Fourthly, this court should not rule on the EC and ECHR arguments ahead of knowing what relevant evidence is available and free of restrictions on disclosure. If no ruling is made on those points on this appeal, it would be unsatisfactory to leave the Employment Appeal Tribunal judgment in a state in which the police could submit to the employment tribunal that it was bound by it. The issues of fair hearing and effective judicial remedy should be argued and decided in full knowledge of the position after all the available evidence has been heard before the employment tribunal.

Result

74. I would dismiss the appeal and remit the matter to the employment tribunal for it to proceed to determine it by following the procedure outlined and explained in this judgment.

Lord Justice Wall:

75. I have had the advantage of reading Mummery LJ's judgment in draft. I am in complete agreement with it, and would dismiss this appeal for the reasons he gives and on the terms relating to paragraph 29 of the Employment Appeal Tribunal's judgment which he proposes.
76. I add two short points of my own, both by way of emphasis. The first is that I have some sympathy with the Tribunal Chair. Paragraph 2 of the Amended Grounds of Resistance filed by the police reads as follows: -

The Respondents respond to the Claimant's Originating Application without prejudice to their contention that the claim is an abuse of process of the Court;

(i) The Claimant is unaware of the reason why she was not selected as a Field Intelligence Officer;

(ii) The entire claim turns on the reasons why the Claimant was not selected as a Field Intelligence Officer, and, in particular, whether the reason amounted to unlawful discrimination under the Race Relations Act 1976;

(iii) The reason why the Claimant is unaware of the reason why she was not selected is that the Respondents are prohibited by law from telling her. The Respondents are likewise prohibited by law from providing relevant information to the Employment Tribunal herein;

(iv) In the premises, it is an abuse of process for the claim herein to be litigated.

77. As I read this pleading, the police were effectively saying: "we have a complete answer to the claim, but we cannot tell either the Claimant or the Tribunal what it is; nor can we tell them the legal basis for the assertion that we cannot tell you what it is. Your claim must therefore be struck out as an abuse of process".
78. I venture to think that most Tribunals would bridle when faced with what was described in argument as this "Kafkaesque" approach. However, it is right to say that this was not how the case was put either to the Tribunal Chair at the case management hearing, or in this court. In paragraph 7 of her reasons, which Mummery LJ has set out in paragraph 20 of his judgment, and which I will not repeat, the Tribunal Chair recorded the nature of the evidence which the police wished to present, and which, it argued, would not prevent a fair hearing taking place.
79. In these circumstances, I respectfully agree with Mummery LJ that what the Chair should have done was to give conventional case management directions designed to lead to a hearing. Both sides should have been required to file statements setting out their respective cases, and both sides should have been ordered to give discovery in the normal way. Any argument on further discovery, or the refusal by the police to provide specific information could then be addressed in the factual context which emerged at the hearing. I therefore entirely agree with conclusions expressed by Mummery LJ in paragraphs 69 to 74 of his judgment.
80. Mr Pannick's emphasis on the desire of the police to have a fair trial, and his clients' recognition that it would be much preferable from the point of view of the effective determination of the race discrimination claim (if that were the only consideration) were the respondents able to give reasons for the decision not to appoint the appellant to the post, lead me to the second point I wish to make. Mr Pannick argued, not only that a fair trial was possible without the disclosure sought by the claimant, but we should, at this stage, rule on the ECHR and Community Law arguments advanced by Ms Monaghan. His argument was that the rule of law upon which the police relied was very clear, and that the arguments based on ECHR Article 6 and Community Law were so weak that they both could and should be determined at this stage of the proceedings.
81. Like Mummery LJ, I am unable to accept that submission. In addition to the reasons he gives, my experience, during the short time in which I have sat in this court, has been to observe a distinct tendency for ECHR and Community Law arguments to be advanced on isolated aspects of the case under consideration, with the consequence that a proper consideration of the actual point in issue is either hi-jacked or subsumed. Mummery LJ has cited the most extreme example, namely R (Burke) v GMC (Official Solicitor and others intervening) (Burke) in which the only issue was the circumstances in which artificial nutrition and hydration could properly be withdrawn from a competent patient. Mummery LJ's citation from the judgment of the court in that case demonstrates the great dangers inherent in the court grappling with issues which are not before it, and which are divorced from their factual content.
82. Burke, however, is not the only case, in my experience, in which this has occurred. In a series of Family cases, the court has been invited to consider ECHR arguments in relation to isolated and discrete aspects of cases involving child care, particularly in the public field. The latest example is the decision of this court in Re J (a child) (care proceedings: fair trial) [2006] EWCA Civ 545, [2006] 2 FCR 107.
83. I raise the issue because, in my judgment, this is a trend which is to be discouraged, and because my understanding has always been that, in the European jurisprudence, any alleged Article 6 breach has to be considered in the overall context of the case, and is not to be addressed in relation to any one, discrete aspect of it: - see, for example, the decision of the ECtHR in Mantovanelli v France (1992) 24 EHRR 370, [1996] ECHR 21497/ 93 at paragraph 34.
84. Like Mummery LJ, I have been greatly helped in this case by the full arguments prepared by counsel, and I respectfully echo the sentiments he has expressed at paragraph 7 of his judgment. At the risk of being accused of over-protestation, however, I emphatically refute any suggestion that our refusal to rule on the ECHR and Community Law arguments in this case is what, in common parlance, is called a "cop-out". It would, in my judgment, be quite wrong for this court to adjudicate on the arguments in a vacuum, and without reference to the facts of the case. Indeed, as Mummery LJ has rightly pointed out, they may not, in the event, arise and thus prove academic. On the other hand, if they do, they must be addressed in their factual context, and it would, in my judgment, be quite contrary to the concept of a fair trial were this court to have pronounced on them, effectively ex cathedra and without reference to the factual context in which they arose.
85. For these reasons, which I repeat, are by way of emphasis, not addition, I respectfully agree with both Mummery LJ's reasoning and his conclusions, and, like him, would dismiss this appeal.

Sir Anthony Clarke MR:

86. I agree.