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Cite as: [1993] UKEAT 182_92_1401

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BAILII case number: [1993] UKEAT 182_92_1401

Appeal No. EAT/182/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12th October 1992 & 14th January 1993

Judgment delivered on 29th January 1993

Before

THE HONOURABLE MR JUSTICE KNOX

MR A FERRY MBE

MR K HACK JP

A BALFOUR APPELLANT

FOREIGN & COMMONWEALTH OFFICE RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR R ALLEN

(Of Counsel)

John Wadham

Solicitor

Liberty

Legal Department

21 Tabard Street

LONDON SE1 4LA

For the Respondents MR C KATKOWSKI

(Of Counsel)

The Treasury Solicitor

Queen Anne's Chambers

28 Broadway

LONDON SW1H 9JS

MR JUSTICE KNOX: The applicant before us, Mr Andrew Balfour, was dismissed by his late employer, the Foreign and Commonwealth Office ("the F.C.O."), with effect from 15 February 1991. He presented an Originating Application to the Industrial Tribunal claiming relief in respect of unfair dismissal on the 4th January 1991, at that stage identifying the 16th October 1990, as the date when his employment ended. Nothing turns at this stage on this aspect of the matter but it is relevant to state that his Originating Application was extremely brief stating inter alia:

"My grounds for appeal have been classified "Secret" under the Official Secrets Act and I am not yet able to provide details."

The appeal before this Tribunal is against the decision of a Chairman of Industrial Tribunals on an interlocutory application ordering disclosure by the F.C.O. of certain documents, as to which no issue arises in the appeal to us, and refusing disclosure of certain other documents identified by Mr Balfour in a letter dated 9th October 1991. The issue with which this Tribunal is concerned, is what is the proper approach to be adopted where, as here, there is a claim advanced that public interest immunity applies on grounds of national security, in that the security and intelligence services are, or are claimed to be, involved. The parties to the appeal both joined in asking that the Tribunal should deal with the matter as limited to the proper principle to be applied and should not extend to a consideration of the exercise of the Chairman of the Industrial Tribunal's discretion in relation to individual documents or categories of documents.

A significant factor in reaching this agreed limitation on the ambit of this appeal was that there are further interlocutory hearings for directions to be heard in the future, in particular on 10 February next, and the pleadings between the parties are not in fact yet in their final form, but are significantly different from the form which they took when the decision under appeal was made on the 29th January 1992, at the London South Industrial Tribunal. That factor led to the abandonment of the appeal regarding those documents in respect of which, discovery was refused on the basis of confidentiality rather than public interest immunity. So far as the former issue is concerned, it will suffice to say that the parties were agreed that the principles to be applied are those stated by the House of Lords in Science Research Council v. Nassé [1979] ICR 921, and that if, and to the extent to which on the completion of the pleadings, issues arose as to the discovery of documents claimed to be confidential but not subject to public interest immunity, Mr Balfour should not be regarded as precluded by what has happened to date from claiming discovery and any such application should be dealt with in accordance with the principles laid down in the Nassé case.

What remains in issue is the proper approach to be adopted in relation to public interest immunity in connection with the security and intelligence services. It is neither necessary for present purposes to identify the documents in question nor to say more of the factual issues between the parties than that the unfairness upon which Mr Balfour relies in relation to his dismissal has, on his version of events, a close connection with the security and intelligence services.

The issues were very helpfully identified and narrowed in the full and helpful arguments from Counsel on either side, Mr Allen for Mr Balfour and Mr Katkowski for the F.C.O.

The decision under appeal is only recorded for us in notes taken by a pupil barrister, Nadine Finch. These notes were accepted as being generally accurate but not as exhaustive of what was said. The letter conveying the Chairman's decision only contained the order for discovery and did not deal at all with the documents in respect of which such an order was refused. That letter is, therefore, of no help. The relevant passage in Nadine Finch's notes is as follows:

"1. As she was not able to look at the majority of the documents because of the Respondent's contention that they were protected by public interest certificates, the Chair was inclined to give the Appellant the benefit of the doubt in relation to their relevance and assumed that the majority were relevant to the present proceedings.

2. However, documents 1, 2, 4, 5, 7 (part of), 9, 10 (part of) were cited in the public interest certificates and the Chair believed that she had no jurisdiction to order their disclosure. She accepted that disclosure would cause unquantifiable damage to the functions of the security and intelligence services in terms of protecting the integrity of intelligence operations and the safety and security of personnel involved. (That is she accepted argument elaborated in paragraphs 5 & 6 of the certificate issued by Kenneth Baker on 27th January 1992). She also accepted that Conway v. Rimmer [1968] AC 910 and Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 were authority for the propositions that the court was not competent to weigh up the risks involved in disclosure as it was not privy to all the relevant background material and therefore it could not go behind the decision of the ministers exemplified by the public interest certificates."

In fact, two Ministers have sworn Affidavits claiming public interest immunity in respect of different categories of documents. One is the Secretary of State for Foreign and Commonwealth Affairs and the other the Home Secretary. Each, of course, deals with documents that concern his Ministry. The substance of their certificates is in identical terms so far as the basis for claiming public interest immunity is concerned.

Mr Allen did not challenge Mr Katkowski's submission that this Tribunal should only allow an appeal from an interlocutory decision if the Industrial Tribunal ignored the guiding legal principles, or if the decision below was perverse in the sense of being what is often compendiously called "Wednesbury unreasonable" Adams v. West Sussex C.C. [1990] I.C.R.546. The issue thus narrowed to one, whether the Chairman of the Industrial Tribunal applied the correct legal principles.

In saying, as she is recorded as having done, that she had no jurisdiction to order disclosure, the Chairman adopted an unfortunate turn of phrase because taken by itself it suggests that the situation was understood by her to be, as was widely understood to be, law after Duncan v. Cammell Laird & Co Ltd [1942] AC 624 and before Conway v. Rimmer [1968] AC 910. Namely, that if the Crown made a claim to what was then called Crown privilege in proper form, the Courts were precluded from investigating further. Mr Katkowski wisely did not seek to defend any such proposition but submitted that if one read the whole of the note of the Chairman's decision, particularly in the light of the fact that it was not a verbatim transcript, what was being said was in line with what Lord Reed said in Conway v. Rimmer, supra, at p.952:

"I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister's view: full weight must be given to it in every case, and if the Minister's reasons are of a character which judicial experience is not competent to weigh, then the Minister's view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character. For example a court is perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that there was a chance that his report might be produced in legal proceedings, he would make a less full and candid report than he would otherwise have done.

I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism."

That clearly reveals two separate categories of situations where the public interest is involved. The first where the reasons given are susceptible of being weighed by judicial experience, and there the judge has to do the weighing or balancing process which usually involves an inspection by him, and the second where the reasons given by the Minister are of a character which judicial experience is not competent to weigh. In the latter case, the judge by definition has no effective means for weighing the reasons adduced but it is still his function to perform the balancing act between the two public interests, one of the proper administration of justice which requires relevant evidence to be disclosed and not hidden, the other the protection of national security, although it will be the latter that will prevail, if, and this is the significant factor which means that it is still the Court that has, in the end, to decide the claim, evidence of the necessary factual link between the documents and the reasons adduced is produced.

Mr Katkowski relied upon an unreported decision of Otton J. Thorburn v. Hermon 21 February 1992. This was a defamation case arising out of the Stalker inquiry in Northern Ireland. There were certificates by the Secretary of State for Northern Ireland claiming public interest immunity on two grounds of concern, first, the efficacy of the efforts of the security forces of the Crown to counteract terrorism and secondly, the protection of the lives and safety of members of the Security Forces and of persons who had, or might thereafter give intelligence information to the Crown and the families of such persons. These interests Otton J. described as Interests of National Security. He quoted passages from Conway v. Rimmer, supra, and in particular a passage from the speech of Lord Morris of Borth-y-Gest at p.955 where he said:

"Though this case requires an answer to be given to the question whether in the last resort decision rests with the courts or with a Minister, I see no reason to envisage friction or tension as between the courts and the executive. They both operate in the public interest. Some aspects of the public interest are chiefly within the knowledge of some Minister and can best be assessed by him. I see no reason to fear that the courts would not in regard to them be fully and readily receptive to all representations made in appropriate form and with reasonable sufficiency. If a responsible Minister stated that production of a document would jeopardise public safety it is inconceivable that any court would make an order for its production. The desirability of refusing production would heavily outweigh the desirability of requiring it."

Otton J. himself at pp 11 - 12 of the transcript said:

"I accept the primary submission of Mr Stephen Richards on behalf of the Secretary of State that the courts have thus acknowledged that where the Crown having the sole or predominant responsibility for the security of the State, asserts by evidence that a particular course of action was or is necessary for the safeguarding of national security, the assertion will be accepted for the courts are in no position themselves to decide such a question by the ordinary rules of adjudication; and the interests of security will prevail over the interest of the parties to private litigation even if it will have a decisive outcome on the private litigation."

He also quoted from the case concerning the exclusion of unions from G.C.H.Q. CCSU v. Minister for the Civil Service [1985] 1 AC 374, notably the passage from Lord Fraser of Tullybelton's speech at p.402C where he said:

"......the decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security."

Otton J reminded himself that these dicta were expressed in a judicial review context and not in an issue of public interest immunity in connection with discovery in aid of a private right but held that the same principle applied to the case before him. He then stated his conclusion on the validity of the grounds relied upon as follows:

"I am satisfied that the work of all the security forces identified by the Secretary of State requires secrecy if it is to be effective. I am further satisfied that the disclosure of, or evidence about, the identity of members of the special units could substantially impair their capability to perform the tasks assigned to them and could put their lives at risk. The disclosure of information about the organisation, methods of operation, procedures and capabilities of the special units could also substantially impair their operational efficiency. In particular any disclosure of these matters would be of value to terrorist organisations and would substantially impair the protection which these units give to the community in Northern Ireland against terrorist attack. I am further satisfied that the Secretary of State's grave concern is well founded. The protection of the lives and safety of those involved and of their families and of persons who have provided or may provide information and intelligence to the security services is clearly of paramount importance. If the terrorists are able to discover the identities of security personnel or the identities or existence of informants such personnel or informants are then put in serious personal danger and their capacity to perform their tasks or willingness to provide information is reduced or eliminated. I take judicial notice that past experience in the Province has proved this to be only too true. I conclude therefore that the disclosure of any such information by its nature belongs to a class of information which ought not in the public interest to be disclosed for the reasons to which I have made reference."

Mr Allen accepted that if Thorburn v. Hermon was rightly decided we should follow it but he submitted that it was not rightly decided principally, if not exclusively, because it was inconsistent with the House of Lords decision in Air Canada v. Secretary of State for Trade [1983] 2 AC 394, which, he submitted, showed that the passage quoted above from Lord Reid's speech in Conway v. Rimmer at p 952 was obiter and went too far. Accordingly, we should not follow it. There is nothing in the transcript of the judgment in Thorburn v. Hermon to suggest that the Air Canada case was cited in argument but it does not necessarily follow that it was not. Whether it was referred to or not, it seems unlikely that any such submission as Mr Allen made to us was made to Otton J. In any event, we accept that Otton J's decision is not binding upon this Tribunal and if it is indeed inconsistent with the Air Canada decision of the House of Lords, then we certainly should not follow it.

The Air Canada case was concerned with discovery and is, therefore, much nearer in its legal context to the appeal before us than is CCSU v. Minister for the Civil Service. The issue was whether there should be inspection by the judge of certain documents consisting of high level ministerial papers relating to the formulation of government policy. The judge at first instance ordered production and the Court of Appeal allowed an appeal from that decision.

In the House of Lords the appeal against the Court of Appeal decision was dismissed. The House of Lords was divided upon the yardstick to be applied before the Court should in general decide to inspect documents itself when a claim to public interest immunity is properly made. The majority, Lords Fraser of Tullybelton, Wilberforce and Edmund-Davies, held there has to be shown by the evidence available, without the discovery which is sought, that there is a likelihood that the documents of which discovery is sought would support the case of the party seeking discovery. The minority, Lords Scarman and Templeman, held that the court should inspect the documents if it considered their disclosure might materially assist any of the parties to the proceedings.

Clearly, inferior courts or tribunals are bound by the majority view. However, Mr Allen submitted that that difference of opinion did not really touch this appeal which was concerned with a logically prior issue, namely, whether the certificate of the minister claiming public interest immunity on grounds of the security of the intelligence and security forces of the Crown should be regarded as conclusive of what it alleged. He further submitted that the decision of Otton J. and the decision under appeal before us had reintroduced, by the back-door, Crown privilege as understood under Duncan v. Cammell Laird & Co Ltd. He pointed out that it was submitted by the Lord Advocate in the Air Canada case at pp 428-9, and accepted by Lord Wilberforce in his speech as p 437, that the documents in issue in that case were of the highest grade so far as the claim to their protection was concerned. They were not cabinet papers as such but they were very close to them.

Mr Allen also drew a distinction between cases where an individual's private rights were at stake, as in the present case Mr Balfour has a right not to be unfairly dismissed, and in the Air Canada case the airlines had a right not to be unlawfully charged excessive landing fees on the one hand and cases where there were issues of public law only and no individual private right was involved. We are not satisfied that this latter distinction is of any weight. The public interest in the due administration of justice is not greater or significantly different where private rights are at issue than where public law issues are before the Court. In any event, there are usually litigants whose private rights are affected by the resolution of public law issues. Mr Allen's case was summed up by saying that if Otton J's decision was correct the security services would operate in a form of Alsatia and be immune from any legal sanction.

We accept that, on the authorities, there is no absolute immunity in all conceivable circumstances with regard to any classes of documents. As Lord Fraser of Tullybelton said in the Air Canada case at p 435:

"My lords, I do think it would be possible to state a test in a form which could be applied in all cases. Circumstances vary greatly. The weight of the public interest against disclosure will vary according to the nature of the particular documents in question; for example it will in general be stronger where the documents are Cabinet papers than when they are at a lower level. The weight of the public interest in favour of disclosure will vary even more widely because it depends upon the probable evidential value to the party seeking disclosure of the particular documents, in almost infinitely variable circumstances of individual cases. The most that can usefully be said is that, in order to persuade the court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought at least to satisfy the court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case, and that without them he might be "deprived of the means of . . . . proper presentation" of his case: see Glasgow Corporation v. Central Land Board, 1956 S.C.(H.L) 1, 18 per Lord Radcliffe."

There could be circumstances where Cabinet papers would be discoverable but it would require the most exceptional case, such as that in United States v. Nixon 418 U.S.683. Fox L.J. in the Court of Appeal in the Air Canada case at pp 417-8, recognised that there were differences of approach between some of the dicta in Conway v. Rimmer, supra,and those in later cases notably Burmah Oil v. Bank of England [1980] AC 1090, on the question whether with documents of the highest grade no considerations relating to the administration of justice would prevail against the public interest in preventing disclosure. He proceeded on the basis that the courts might in a suitable case decide that a high level governmental public interest must give way to the interests of the administration of justice.

Secondly, questions of national security are not in general suitable for judicial evaluation. It follows that it would not be appropriate for an Industrial Tribunal to seek to go behind a ministerial certificate as regards national security considerations including in particular the assessment of dangers involved in the disclosure of classes of documents. The Air Canada case was not concerned with national security questions but with high level government policy. In particular, there is not in the Air Canada case any criticism express or, we think, implied, of what Lord Reid said in Conway v. Rimmer regarding reasons given by a minister which "are of a character which judicial experience is not competent to weigh". We reject the argument that Lord Reid's speech went too far in the light of later authority in that respect.

Thirdly, we are not persuaded that Otton J. applied a similar test to the old Crown privilege test in Duncan v. Cammell Laird, in holding, as he did, that public interest immunity applied. True it is, that he said at p. 17 of the transcript:

"I have already indicated that on my reading of the authorities I am not permitted to carry out a balancing exercise once interests of national security arise and there is evidence to support the Secretary of State's claim."

There are similar passages at pp 9 and 24 of the transcript.

However, what we read his judgment as doing, is looking at and accepting the reasoning of the minister's certificate as establishing that national security would be imperilled by the claimed disclosure. In treating that as conclusive he was doing no more than following out what Lord Morris of Borth-y-Gest said in Conway v. Rimmer at p 955, and which he quoted:

"The public interest may require that relevant documents ought not to be produced. If, for example, national security would or might be imperilled by the production and consequent disclosure of certain documents, then the interest of a litigant must give way."

If Otton J. had been applying the judicial equivalent of a rubber stamp as soon as a claim for Crown privilege was raised, the passage quoted above from p 13 would have been omitted. We would, for our part, prefer to describe the process involved in deciding whether there should be discovery of documents in respect of which public immunity is claimed and it is shown by ministerial certificate that their disclosure would or might endanger national security as one where the scale against disclosure is decisively the heavier rather than as one where there is no balancing exercise at all. We accept that since Conway v. Rimmer, it is the court that has to decide. But in the vast majority of cases raising issues of national security, this is more a question of phraseology than of principle because the end result is the same.

There also remains the need for evidence to link the documents in question to the reasoning in support of the claim to public interest immunity. It is for the Court or Tribunal deciding on the question of discovery to be satisfied as to this. But that does not lead to the conclusion that in all cases the Court must itself inspect the document concerned.

For these reasons we conclude that the principles applied by the learned Chairman were fundamentally correct if one interprets the reference to absence of jurisdiction in the wide sense of the Tribunal not being qualified to evaluate the strength or validity of the national security reasons advanced in the ministerial certificate, and on that basis we dismiss this appeal.