United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JEREMY JOHNSON (of Counsel) Instructed by: Metropolitan Police Service Directorate of Legal Services Wellington House 67-73 Buckingham Gate London SW1E 6BE
For the Respondent	MS KARON MONAGHAN (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST

SUMMARY

Appellants refused to reveal the reason for black officer's unsuccessful application to Trident police team, following vetting procedure. Held that they were entitled to withhold both that information and the legal provision on which they relied.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a case management order made by a Tribunal Chairman, Ms Taylor at a hearing on 16 June 2005 when, having heard representations from Counsel for both parties, she ordered that no later than 4pm on 7 July 2005 (i) the Respondent shall provide Further Particulars to the Claimant and/or her solicitors stating on what grounds it seeks to resist her claim of unlawful race discrimination, including the reasons 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. The Chairman further ordered that unless the above Order was complied with on or before that date, the Response should be struck out on the date of non-compliance without further consideration of the proceedings or the need to give further notice or to hold a pre-review hearing or a hearing.
2. Although the Order was directed against only one Respondent, the Commissioner of Police of the Metropolis, no point is taken before me about that defect and it is accepted that the Order was meant to apply to both Respondents. The Respondents below now appeal that Order and leave for this was given by Burton J, President, in chambers, by an Order dated 1 July 2005.
3. The grounds of appeal are (i) that the Tribunal made an Order that the Appellants were unable, as a matter of law, to comply with. The Appellants had, through Counsel, explained to the Tribunal that they were prohibited by law from disclosing either to the Tribunal or to the Respondent the precise reason why the Respondent was not selected or the precise law which prohibited disclosure; (ii) that the Tribunal erred in deciding that the Appellants' conduct of the proceedings was unreasonable. It was not unreasonable conduct to comply with the law. The only reason for non-disclosure was that the Appellants were prohibited by law from giving disclosure; (iii) that the Tribunal erred in refusing to allow Counsel for the Appellants to refer to a bundle of authorities that had been prepared.
4. Further, within his submissions, Mr Johnson, on behalf of the Appellants, raises an additional matter, namely that if, through no fault of the Respondent, a fair trial of the claim was impossible because of the legal prohibition on disclosure, the entire claim is an abuse of process and should be struck out.
5. The background to the case is that the Respondent is black and a serving police constable. She was invited to apply for a position as a field intelligence officer within the Operation Trident Shootings Desk. That operation, as is well-known, is the response of the Metropolitan Police to the disproportionate level of shootings and gun-related murders in London's black communities. It is not disputed that much of its work relies heavily on intelligence, some of an extremely sensitive nature which is only made available to a strictly limited number of officers. Since the post for which the Respondent applied allowed access to extremely sensitive information, all applicants had to go through a vetting check. That was carried out and the Respondent was advised that she could not be selected due to the results of that check. In due course, a white officer was selected.
6. The Respondent commenced her proceedings alleging race discrimination and in their amended Grounds of Resistance, the Appellants contended that they were prohibited by law from telling the Respondent why she was not selected and were likewise prohibited by law from providing the relevant information to the Employment Tribunal.
7. In due course, a case management conference was convened and the Respondent renewed her requests for further information as to the precise reason why she was not selected. Before the Chairman, the Appellants explained that they were prohibited by law from giving the precise reason why she had failed the vetting check and were prohibited by law even from disclosing the precise legal basis that prevented disclosure. They argued that, in any event, the hearing could proceed. They proposed to tender the evidence of senior officers that had reviewed the decision and to provide evidence on the following: namely that even if there were no other candidates, the Respondent would not have been appointed, the nature of the Trident operation, the role of the field officer, 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. In response, the Claimant contended that without being given reasons, she would be denied the opportunity of having a fair hearing and offered to agree to the hearing being held in private and to other arrangements being made to ensure confidentiality. The Chairman's conclusions were contained in paragraphs 9 and 10 of her Decision as follows:

"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 on 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.

10. A Chairman may make an order or judgment striking out any response on the grounds that the manner in which the proceedings have been conducted by or on behalf of the respondent has been unreasonable (Rule 18(7)(c) Employment Tribunal Rules of Procedure). The order to strike out was deferred for 21 days in order to give the Respondent an opportunity to review its position, notwithstanding its submission that a stay of the strike out order would serve no useful purpose".

8. Before me, Mr Johnson repeated and renewed the submission that the Appellants were prohibited by law from revealing the reason why the Respondent failed her vetting check and were not even permitted to state which law prohibited that disclosure and made it clear that nothing in either his Skeleton Argument or his oral submissions should be taken as breaching that prohibition. Mr Johnson then went on to give examples where, in certain very sensitive areas, a party in litigation was prohibited from revealing information that might otherwise be relevant such as public interest immunity or where a Court made an order prohibiting disclosure, but the bulk of his submissions were directed towards the prohibition on disclosure of intelligence emanating from a telephone intercept pursuant to the Regulation of Investigatory Powers Act 2000.
9. Mr Johnson then took me to the provisions of the Act. Section 1 makes it an offence for a person intentionally and without lawful authority to intercept any communication in the course of its transmission by means of a public communications system. Section 1(5) provides that an interception has lawful authority if it takes place in accordance with a warrant issued under Section 5. Section 5 provides for the Secretary of State to issue warrants authorising interceptions of a public telecommunications system for various purposes including "preventing or detecting serious crime".
10. Section 17 of the Act provides 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 [or Inquiries Act 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 any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur".

Subsection 17(2) includes the issue of an interception warrant i.e. a telephone intercept on the public telecommunications network. Section 18, subsections 7, 8 and 11 provide that:

"Exceptions to section 17

(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to-

(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.

(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.

(11) In this section "a relevant judge" means-

(a) any judge of the High Court or of the Crown Court or any Circuit judge;

(b) any judge of the High Court of Justiciary or any sheriff;

(c) in relation to a court-martial, the judge advocate appointed in relation to that court-martial under section 84B of the Army Act 1955, section 84B of the Air Force Act 1955 or section 53B of the Naval Discipline Act 1957; or

(d) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge falling within paragraph (a) or (b)".

and Section 19(1), (2), (3) and (4) provide that:

"19. (1) Where an interception warrant has been issued or renewed, it shall be the duty of every person falling within subsection (2) to keep secret all the matters mentioned in subsection (3).

(2) The persons falling within this subsection are-

(a) the persons specified in section 6(2);

(b) every person holding office under the Crown;

(c) every member of the National Criminal Intelligence Service;

(d) every member of the National Crime Squad;

(e) every person employed by or for the purposes of a police force;

(f) persons providing postal services or employed for the purposes of any business of providing such a service;

(g) persons providing public telecommunications services or employed for the purposes of any business of providing such a service;

(h) persons having control of the whole or any part of a telecommunication system located wholly or partly in the United Kingdom.

(3) Those matters are-

(a) the existence and contents of the warrant and of any section 8(4) certificate in relation to the warrant;

(b) the details of the issue of the warrant and of any renewal or modification of the warrant or of any such certificate;

(c) the existence and contents of any requirement to provide assistance with giving effect to the warrant;

(d) the steps taken in pursuance of the warrant or of any such requirement; and

(e) everything in the intercepted material, together with any related communications data.

(4) A person who makes a disclosure to another of anything that he is required to keep secret under this section shall be guilty of an offence and liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both".

11. As a result, Mr Johnson contended that if this were an intercept case then by virtue of Section 17, the Respondents would be prohibited from indicating that the legal provision on which they relied was RIPA 2000 since that would tend to suggest that a telephone intercept warrant had been granted and such a disclosure could lead to the person making the disclosure being prosecuted. Under Section 18, there is power in exceptional circumstances for a Circuit or High Court Judge to order disclosure to himself alone but, as a result, the Judge would only be able to satisfy himself that a party was indeed prohibited by law from explaining precisely why they were prohibited from giving the reason why the Respondent failed the vetting check without, in any way, revealing the precise information that was disclosed to him.
12. Mr Johnson went on to submit that it was well-established that requirements of disclosure so as to ensure a fair hearing depend on the context and, where information cannot be disclosed, the Courts cannot and should not order disclosure. Thus, in R (Tucker) v The Director General of the National Crime Squad [2002] EWHC 832 (Admin), the Claimant was a police officer who had been seconded to the National Crime Squad after a covert investigation, his secondment was terminated and he was returned to his original force with immediate effect. He was told only that information had been received that suggested he had failed to maintain the standards of the National Crime Squad. He requested but was refused further information save that he was told that it was not in connection with the arrest that had taken place; that he was not the subject of any disciplinary investigation. He was subsequently told that he had been returned to his force because of a lack of confidence in his integrity but that the Director General was prevented by law from providing him with information or the source of information on which the decision was based. The Claimant challenged the decision by way of judicial review. At first instance, his claim was dismissed and Harrison J said at paragraphs 9 and 10:

"9. Before coming to those issues, however, it is necessary first to refer to a preliminary submission made by Mr Westgate on behalf of the claimant, which arose out of the position adopted by the defendant, the Director General of the NCS, in his detailed grounds for contesting the claim. The Defendant stated that he is prohibited by law from providing the claimant with the information or the source of the information which formed the basis of the NCS's loss of confidence in the claimant. Mr McGuinness QC, who appeared on behalf of the defendant, made it clear at the hearing that, despite the references in the defendant's solicitors' letter of 25 July 2001 to public interest immunity, he was not putting forward public interest immunity as the reason for not disclosing the information or the source of it. He declined to state why the defendant was prohibited by law from disclosing the information or the source of it and he declined to state why he was prevented from so stating.

10. Having been told that public interest immunity was not being raised by the defendant as the reason for refusing to give reasons for the termination of the claimant's secondment, Mr Westgate concentrated on sections 17 to 19 of the Regulation of Investigatory Powers Act 2000. Section 17 provides inter alia that no evidence shall be adduced, question asked or disclosure made in connection with any legal proceedings which tends to suggest that an interception warrant has been issued. Section 19 provides that it is an offence for any member of the NCS to disclose even the existence of an interception warrant, let alone its contents. Section 18(7)(b) permits a relevant judge, which includes a High Court judge, to order a disclosure to him of anything otherwise prohibited by section 17. Mr Westgate submitted that I should exercise the power under section l8(7)(b) to go into camera and require the defendant to disclose to me the reason why he was prohibited in law from giving reasons for the termination of the claimant's secondment. That submission was, of course, made on the assumption that the giving of reasons may involve the disclosure of the existence of an interception warrant. Mr McGuinness said that, if this were a section 17 case, he could not say so. He did not intend to refer to any other statutory provision but that did not mean that he was saying that it was a section 17 case because he could not say that. Mr McGuinness then made it quite clear that, if I were to accede to Mr Westgate's submission to require disclosure in camera, the defendant would concede the judicial review proceedings except on the issue of relief. That struck me as a very unsatisfactory state of affairs because one of the defendant's main submissions was that the decision in this case was not amenable to judicial review. At that point, Mr McGuinness made it clear that he was prepared to argue the two issues in this case, namely whether the decision was amenable to judicial review and, if so, whether fairness required reasons to be given and an opportunity to make representations, without relying on the fact that the defendant was prohibited by law from giving reasons. In view of that concession, Mr Westgate did not pursue his request for disclosure in camera. I should, however, say that, although I did not therefore have to decide that preliminary issue and although I had not heard argument from Mr McGuinness on it, I would have been very unlikely to accede to the submission that I had the requisite power in judicial review proceedings to require such [disclosure] in camera".

13. The Court of Appeal dismissed the Claimant's appeal. At paragraphs 46-49 Scott-Baker LJ said:

"46 . Mr McGuinness referred to the Regulation of Investigatory Powers Act 2000, but without suggesting it had any direct application to the present case. He pointed out it would be unlawful for the national crime squad to disclose information revealing the existence or contents of material obtained as a result of a Secretary of State's warrant authorising the interception of communications: see sections 5 and 19. There is also the wide prohibition in section 17.

47. All this, it seems to me, adds up to the fact that this is a case that falls into the 'sensitive intelligence information' category. In this type of case the duty of fairness requires no more than that the decision-maker acts honestly and without bias or caprice: see, in a different context, Mclnness v Onslow Fane [1978] 1 WLR 1520, 1535. The deputy director general was constrained by the circumstances in the information he was able to give to the applicant. As time has passed the applicant has been given a broad general indication of his deficiencies if he was unaware of them initially. I can well understand the distress that the decision caused the applicant, particularly in relation to the manner in which it was made public and its proximity to decisions about other officers whose predicament was more serious. Unfortunately for the applicant, however, this is not a matter with which the court can interfere. Even if the decision was amenable to judicial review, the appropriate standards of fairness in the context of this case have not been breached. Clause 7.2 of the conditions of service was a provision to which the applicant had agreed and which the director general was entitled to use.

48 In my judgment the deputy director general was entitled to have in mind the risks attached to disclosing to the applicant the full circumstances of why his secondment was being bought summarily to an end. This does not of course mean that fairness goes out of the window altogether and nor, so far as I can see, did it in this case. The bottom line is that the deputy director general acted in good faith and gave such information as he felt he could. Furthermore, the decision was reviewed and some further information provided as events unfolded. What the court cannot do in a case such as this is scrutinise the decision and form its own view whether the deputy director general was objectively justified in withholding information.

49 There are cases, of which this is one, where although issues of national security do not arise the public interest requires that disclosure of information that would otherwise be given in the interests of fairness should be withheld. As Mr McGuinness accepted, some information is time sensitive whereas some is not. There is thus the possibility that information that cannot initially be disclosed can be later".

14. Mr Johnson also referred me to the House of Lords' decision in R (Roberts) v Parole Board [2005] UKHL 45 where their Lordships had sanctioned the non-disclosure of highly relevant information to a prisoner seeking parole.
15. Accordingly, Mr Johnson argued that there are, on rare occasions, legal prohibitions on disclosure of information which can include a prohibition that prevents even the prohibition itself from being revealed and that the Chairman should have accepted the Appellants' assertion that this was such a case. Indeed, no finding was made that the Appellants were wrong about that assertion. It follows, he submitted, that the Chairman made an Order that the Appellants were unable to comply with, which must be plainly an error of law, and further, he argued, it cannot be right to label the Appellants' behaviour as unreasonable if all they were doing is complying with the law. Mr Johnson also complained that the Chairman refused to allow him to refer to the bundle of authorities to which I have been referred.
16. He readily accepted that in a case of race discrimination, it is far from ideal that the Respondent had not been told the reason why she failed her vetting check but he contended that, nevertheless, there could still be a fair trial without disclosure of the precise reason why she failed that check. He submitted that the Appellants would be in a position to give evidence at the substantive hearing in relation to (i) Operation Trident itself; (ii) the position that the Respondent applied for and why it was an extremely sensitive position that required a vetting check; (iii) the vetting process; (iv) the types of information that might be revealed by the vetting process that might lead to an adverse decision; (v) the circumstances in which the reasons for an adverse decision might not be revealed to an applicant; (vi) the impact of the Respondent's race on the decision; (vii) whether it would have made any difference to the decision of the Respondent if the Applicant had been white; (viii) whether it would have made any difference to the decision if the Respondent had been the only applicant for the position; (ix) the process that was undertaken to review the decision to determine whether any further information could be disclosed to the Respondent. This information would be given by two very senior police officers, the First Respondent, himself, who was in charge of the Trident Team and Deputy Assistant Commissioner Stephen Roberts, who reviewed the decision.
17. Finally, he submitted that if this Court disagreed that a fair trial could take place without disclosure, then the consequence is that, through no fault of either party, a fair trial of the claim is impossible and the claim should be struck out. In Carnduff v Inspector Rock and Another [2001] 1 WLR 1786, the claimant in the action, a registered police informer brought an action against a police inspector and his chief constable to recover payment for information and assistance provided to the police. He alleged that he had already agreed to provide such information and assistance in return for reasonable remuneration. The defendants applied to strike out the claim on the ground that the statement of claim disclosed no reasonable cause of action since enforcing the alleged agreement would be contrary to public policy. The judge, at first instance, refused the application and on appeal, the Court of Appeal allowed the appeal holding that a fair trial of the issues arising from the pleadings would necessarily require the police to disclose and the Court to investigate and adjudicate upon sensitive information which should, in the public interest, remain confidential to the police and that the public interest, in withholding the evidence relating to such issues, outweighed the countervailing public interest in having the claim litigated on the available relevant evidence; that the claim could not be litigated consistently with public interest and any attempt to do so would gravely distort the very process of litigation and compromise the business of doing justice and accordingly, the claim would be struck out.
18. In response, Ms Monaghan launched a robust attack upon the principle that allowed a party to conceal the legal basis on which they were allowed to justify their actions, particularly in the field of discrimination where the Courts and Tribunals had a duty to investigate and, if necessary, protect the rights of an individual against an employer, particularly if it be a state organ. While she did not seek to challenge Mr Johnson's interpretation of the provisions of RIPA 2000, she argued such interpretation would be incompatible with community law and European Human Rights Convention law. She took me first to the position under Employment Tribunal rules, and reminded me of Regulation 3(1) of the Employment Tribunals (Constitution and Rules) Regulations 2004 which provided that:

"the overriding objective of these Regulations and the Rules…is to enable Tribunals and Chairmen to deal with cases justly".

Dealing with a case "justly" includes "ensuring the parties are on equal footing" and "ensuring that it is dealt with…fairly" (Regulation 3(2)). She then took me to the Rules which are well known and which require Respondents to set out within their response the grounds on which they seek to resist a claim and the provisions which permit the Chairmen to make orders requiring the provision of additional information, to set down the time within which such information is to be provided and the sanction of striking out in the event that such information is not provided.

19. Further, she also reminded me that Parliament had made special provision for accommodating sensitive material, the Employment Tribunals Act 1996, Sections 10-12, the Employment Tribunals Rules (Regulation 10) and Rules 16, 50 and 54 of Schedule II and the Race Relations Act 1976 (Section 42) contained provisions the purpose of which was to address and protect national security and confidentiality. She highlighted that no rules or regulations had been created to deal with the problems allegedly following as a result of the provisions of RIPA.
20. As to the relevant European Community law, Ms Monaghan referred me firstly to Article 7 of the Race Directive (Council Directive 2000/43/EC Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin) to which Member States were required to give effect by 19 July 2003, which provided that:

"Article 7

Defence of Rights

1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation 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, even after the relationship in which the discrimination is alleged to have occurred has ended".

The principle of equal treatment in the Race Directive meant that there should be no direct or indirect discrimination based on racial or ethnic origin within the scope described by Article 3(1) of the Directive, namely:

"(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;"

21. Article 7 of the Race Directive contains similar material to Article 6 of the Equal Treatment Directive (76/20C7/EEC). In Johnston v Chief Constable of the RUC [1987] QB 129 the issue concerned a complaint of sex discrimination in which the Secretary of State issued a certificate under Article 53(2) of the Sex Discrimination (Northern Ireland) Order 1976 which was conclusive evidence that the applicant had been refused full-time employment on the grounds of national security, public safety and public order. The ECJ held as follows at 147B:

"13. It is therefore necessary to examine in the first place the part of question 6 which raises the point whether Community law, and more particularly Council Directive (76/207/E.E.C), requires the member states to ensure that their national courts and tribunals exercise effective control over compliance with the provisions of the directive and with the national legislation intended to put it into effect.

14. ……

15. ……

16. ……

17. As far as this issue is concerned, it must be borne in mind first of all that article 6 of the directive requires member states to introduce into their internal legal systems such measures as are needed to enable all persons who consider themselves wronged by discrimination 'to pursue their claims by judicial process'. It follows from that provision that the member states must take measures which are sufficiently effective to achieve the aim of the directive and that they must ensure that the rights thus conferred may be effectively relied upon before the national courts by the persons concerned.

18. The requirement of judicial control stipulated by that article reflects a general principle of law which underlies the constitutional traditions common to the member states. That principle is also laid down in articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (1953) (Cmd. 8969). As the European Parliament, Council and Commission recognised in their joint declaration of 5 April 1977 (Official Journal 1977 No. C 103, p.1) and as the court has recognised in its decisions, the principles on which that Convention is based must be taken into consideration in Community law".

Accordingly, Ms Monaghan submitted that the ECJ had concluded that the principle of effective judicial control laid down in Article 6 of the 1976 Directive did not allow a certificate, issued by a national authority stating that conditions for derogating from the principle of equal treatment for men and women for the purpose of protecting public safety were satisfied, to be treated as conclusive evidence so as to exclude the exercise of any power of review by the Courts.

22. Mr Johnson sought to distinguish this case, submitting that the Appellants in no sense could be accused of preventing the Respondent from asserting her right before a Tribunal, although he accepted that there was a degree of curtailment as far as evidence in detail was concerned. He also pointed to the judicial control contained in Section 18 of RIPA. I agree with those submissions. In my view, it cannot be said that the Appellants' actions in this case prevented the Respondent from asserting her right before a Tribunal and accordingly, did not contravene the right to effective judicial process provided by Article 7 of the Directive.
23. Ms Monaghan also suggested that similar considerations apply under Article 6 of the European Convention of Human Rights which also requires effective judicial control. In Tinnelly & Sons Limited & Others and McElduff and Others v UK [1998] 27 EHRR 249, Tinnelly and others had lodged complaints with the Fair Employment Agency in Northern Ireland on the ground that they had been refused certain contracts because of the perceived religious beliefs or political opinions of its employees. The Secretary of State had issued a certificate to the effect that the contract had not been awarded to Tinnelly on security grounds. Section 42 of the Fair Employment (Northern Ireland) Act 1976 provided that:

"Section 42 of the 1976 Act provides as follows:

(1) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or public order.

(2) A certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for a purpose mentioned in subsection (1) shall be conclusive evidence that it was done for the purpose".

24. The Court held that this was a violation of Article 6 and dealt with the matter thus in paragraph 77.

"The applicants submit that section 42 certificates are issued, and were issued in their cases, in a disproportionate way. They submit:

-- that section 42 is loosely applied, without those who are subject to a section 42 certificate having any means of knowing or discovering the basis upon which the certificate has been issued;

-- that the section 42 certificates had the inevitable effect of preventing the applicants from having effective access to any court or tribunal to determine the issues under the 1976 and 1989 legislation;

-- that the section 42 certificates seriously injured the applicants' civil right to a good reputation in circumstances in which they cannot vindicate their reputation before the courts, whether in proceedings under the 1976 and 1989 legislation or in proceedings for defamation;

-- that the issuing of section 42 certificates is capable of abuse, for example because of mistaken identity, or the false evidence of third parties who may be "grudge informers" or competitors of the applicants--none of which may be apparent to the Secretary of State or the person who issues the certificates on his behalf;

-- that there are no "adequate and effective guarantees" against such abuses;

-- that the Government had no difficulty in permitting the industrial tribunals in Northern Ireland to conduct trials on matters relating to conclusive national security certificates in the Johnston case [FN46] and hearing one witness's evidence in private, and that a similar regime could be instituted in the context of the Fair Employment Tribunal;

-- that there was no single forum which was capable of balancing the security considerations (if there were any) which led to the issue of the certificates, against the applicants' legitimate interest in having their allegations of unlawful discrimination determined".

Ms Monaghan submitted that this Court was bound to give effect to Article 6 (as was the Chairman below) by reasons of Sections 3 and 6 of the Human Rights Act 1998. Again, Mr Johnson responds by submitting that the Appellants' actions in this case did not deprive the Respondent of a fair trial and again, I agree with that submission. The effect of the Appellants' actions did not deprive the Respondent of effective access to a Tribunal.

25. Returning to the domestic law, Ms Monaghan submitted that certain parts of RIPA clearly envisaged judicial intervention, reference to Section 18, subsection 4 has already been made, and she also took me to Section 3 of RIPA.

"3. (1) Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both-

(a) a communication sent by a person who has consented to the interception; and

(b) a communication the intended recipient of which has so consented.

(2) Conduct by any person consisting in the interception of a communication is authorised by this section if-

(a) the communication is one sent by, or intended for, a person who has consented to the interception; and

(b) surveillance by means of that interception has been authorised under Part II.

(3) Conduct consisting in the interception of a communication is authorised by this section if-

(a) it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and

(b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services.

(4) Conduct by any person consisting in the interception of a communication in the course of its transmission by means of wireless telegraphy is authorised by this section if it takes place-

(a) with the authority of a designated person under section 5 of the Wireless Telegraphy Act 1949 (misleading messages and interception and disclosure of wireless telegraphy messages); and

(b) for purposes connected with anything falling within subsection (5).

(5) Each of the following falls within this subsection-

(a) the issue of licences under the Wireless Telegraphy Act 1949;

(b) the prevention or detection of anything which constitutes interference with wireless telegraphy; and

(c) the enforcement of any enactment contained in that Act or of any enactment not so contained that relates to such interference".

She has admitted that clearly, judicial decision might be required to ascertain whether or not communication had or had not been sent by a person who had consented and whether the intended recipient had also consented. Further, in Attorney General's Reference (No 5 of 2002) 2004 UK HL 40, the House of Lords held that it was proper for the Court to be able to enquire into the question of whether interception had taken place on the public or private side of a system. The Crown had served evidence on the Defence to establish that the interceptions had taken place within a private system and were thus not relying on Section 17 which only applied to interceptions on a public system. The Defence had submitted that Section 17 prevented any investigation into the circumstances of the interception and, in particular, into whether interception had taken place on the public side of the system. At paragraph 19 of the decision, Lord Bingham said this:

"19. These provisions plainly have the effect of excluding from the public domain in legal proceedings any product of any interception by a person falling within section 17(3) for which a warrant had been or should have been issued. If a warrant had not been obtained there would be an offence within subsection (2)(a). If it had, the matter would fall within subsection (2)(c), (d) or (e). In either event, the matter would fall within subsection (2) and therefore within the prohibition in section 17(1).

20. The inclusion in section 17(2) of an offence under section 1(2) of the Act poses an obvious problem of interpretation given the very sweeping language in which section 17(1) is expressed. The requirement in section 17(2)(a) that the conduct must be by a person falling within subsection (3), and the listing in that subsection of persons and bodies involved in the warranty regime, strongly suggest that the focus of the prohibition is, as in the 1985 Act, on that regime. It is also relevant to recall that interception of a private telecommunication system is only criminal under section 1(2)(a) if without lawful authority and section 18(4) expressly provides that section 17(1)(a) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section 3 or section 4. In other words, disclosure is not prohibited if the interception was lawfully authorised under those sections. It would be absurd to conclude that there could be no inquiry to establish whether the interception was lawfully authorised or not, and whether or not the interceptor's conduct was excluded from criminal liability under section 1(6). In a civil claim under section 1(3) such an inquiry would be inevitable. Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections 1(6), 3 and 4, and the absence of any public interest in excluding it, I am satisfied that a court may properly inquire whether the interception was of a public or private system and, if the latter, whether the interception was lawful. If the court concludes that it was public, that is the end of the inquiry. If the court concludes that it was private but unlawful, that also will be the end of the inquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence".

At paragraph 28, Lord Nicholls said this:

"28. Like all your Lordships I am in no doubt that the answer to this question is "yes". Investigating this issue, essential to the conduct of a fair trial, would not imperil the secrecy of the warrant system. Investigation of the "lawful authority" grounds specified in sections 1(5)(c), 3 or 4, essential to a fair trial when those issues are raised, would not imperil the secrecy of the warrant system, and Parliament has expressly cut down the width of section 17 to enable such an investigation to take place. The Act makes no comparable provision on the point now under consideration but it is impossible to suppose Parliament intended the position should be different. The rationale underlying the exclusionary provision in section 17 is as much absent in the case now under consideration as it is in the "lawful authority" instances mentioned in sections 1 (5)( c), 3 and 4. Section 17 must therefore be interpreted as inapplicable as much in the type of case now under consideration as it is in the cases specifically mentioned in section 18(4). Any other result would lack rational justification. It would serve no useful purpose, and would have the bizarre effect of rendering the offence-creating provision of section 1 (2) nugatory in circumstances where disclosure would not jeopardise the operation of the warrant system. It would also make the civil liability provision in section 1(3) unworkable. A statute should be interpreted so as to avoid such results if at all possible. I would therefore answer the questions raised by the Attorney General in the way proposed by my noble and learned friend, Lord Bingham of Cornhill".

Mr Johnson submitted that the situation in AG's Reference (No 5) of 2002 was clearly distinguishable. In that case, the Crown were not submitting that it was a Section 17 case and clearly the Court had to determine whether it was or was not. Similarly Section 18(4)-(11) of the Act provides that:

"(4) Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4.

(5) ….

(6) ….

(7) Nothing in section 17( 1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to-

(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; ...

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone[; or

(c) a disclosure to the panel of an inquiry held under the Inquiries Act 2005 in the course of which the panel has ordered the disclosure to be made to the panel alone].

(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice".

(9) …

(10) …

(11) In this section "a relevant judge" means-

(a) any judge of the High Court or of the Crown Court or any Circuit judge;

(b) any judge of the High Court of Justiciary or any sheriff;

(c) in relation to a court-martial, the judge advocate appointed in relation to that court-martial under section 84B of the Army Act 1955, section 84B of the Air Force Act 1955 or section 53B of the Naval Discipline Act 1957; or

(d) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge falling within paragraph (a) or (b)".

envisaged, as Lord Nicholls found, that there would have to be recourse to the Court to decide whether or not the disclosure was lawful by virtue of Sections 1(5)(c) i.e. the exercise of statutory power; (3) interception by consent and (4) foreign interception. He argued that this does not diminish the obligation, where there was no suggestion that it is other than a Section 17 case, to comply with the statutory non-disclosure. Again, I agree with his submissions. The House of Lords were clearly dealing with those parts of the Act which give rise to a dispute as to whether or not an interception has been made under Section 17 or under other provisions of the Act. There is clearly nothing to prevent the Courts adjudicating on those issues which, in no sense, contravene the provisions of Section (1).

26. Finally, both Counsel referred me to a recent decision of Burton J, president of this Court, in B v BAA plc UKEAT/0557/04 where the issue concerned Section 10(1) of the Employment Tribunals Act 1996 whereby an employment tribunal must dismiss the complaint of unfair dismissal if the action complained of was taken for the purpose of national security. The EAT held that the section can be relied upon by all employers who need only prove that their actions were for that purpose. They did not carry the burden, where the reason is the refusal of security clearance by a government agency, of proving the underlying facts although the EAT held that the action the employers must justify is not simply the dismissal, but the unfair dismissal, which would include any question of whether redeployment was possible.
27. At paragraph 33 of the decision, Burton J said thus:

"33. Article 6 must be looked at in context. Mr Swift referred to paragraph 72 of the judgment in Tinnelly, which makes it clear that the right under Article 86 is not absolute, but may be subject to limitations: and pointed for example to Leander v Sweden [1987] 9 EHRR 433 at para 59 for the proposition that, in situations that relate to the safeguarding of national security, the legislature is to be afforded a wide area of judgment within which to strike a balance between competing considerations. He also referred to paragraph 26 of the judgment in Devenney:

'The Court accepts that the protection of national security is a legitimate aim which may entail limitations on the rights of access to a court, including withholding information for the purposes of security. As in the Tinnelly case therefore, it is necessary to consider whether there is a reasonable relationship of proportionality between the concerns for the protection of national security invoked by the authorities and the impact which the means they employed to this end had on the appellant's right of access to a court or tribunal.'"

I have not heard argument in this case as to the issue of proportionality between the concerns for the protection of security and confidentiality invoked by the authorities in relation to Section 17 and the impact which this could have on the curtailment of evidence available to the Respondent. However, as I have indicated above, I am satisfied that the obligations imposed by Section 17 in no sense impose a blanket denial of access to a Court or to the judicial process and any denial of information seems to me proportionate to the aims behind Section 17, namely the protection of police methods and the sensitive information thereby obtained.

28. During the hearing, an issue was raised as to whether I should seek disclosure if only to satisfy myself that the Appellants were correct with regard to their primary submission that they were prevented from even identifying the legal provision on which they sought to rely. So far as an order for disclosure under RIPA is concerned, I can only do that if I am satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice. It seems to me that there are exceptional circumstances in that the Respondent is being denied the knowledge of precisely why she was not given the job for which she had applied.
29. I have held a disclosure hearing attended by Counsel for the Appellants and the First Appellant, Chief Superintendent John Coles, the head of the Trident squad. As a result, I am satisfied that the Appellants are prohibited by law from revealing either the nature of the reasons for the Respondent's negative vetting or, indeed, the legal provisions under which that refusal is made.
30. Accordingly, I am satisfied that the orders made by the Chairman were wrong and that a hearing can and should take place without the disclosure requested. Accordingly, this matter should be returned to the Tribunal in order that the matter can be set down for a final hearing.