Appeal No. UKEATPA/0076/09/RN
UKEAT/0125/10/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
29 March 2012
Judgment handed down on 25 April 2012
Before
THE
HONOURABLE MR JUSTICE MITTING
(SITTING ALONE)
MR
A RAHMAN APPELLANT
(1)
COMMISSIONER OF POLICE OF THE METROPOLIS
(2) SECRETARY OF STATE
FOR THE HOME DEPARTMENT RESPONDENTS
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE
MITTING
Background
1.
The Appellant was born in Bangladesh on 11 March 1979. He became a
naturalised British citizen on 11 August 1988. He became a probationary police
officer of the Metropolitan Police on 22 September 2003. A requirement of his
recruitment was that he underwent a process of security vetting known as a
counter-terrorist check (CTC). On 22 June 2006, his CTC clearance was
suspended. The Respondent conducted an investigation which included three
interviews with the appellant on 3 and 11 July 2006 and (following a period of
absence due to illness) on 23 November 2006. On 29 November 2006 Detective
Chief Superintendent Sait notified the Appellant that his CTC clearance was
withdrawn, that he had an internal right of appeal and a subsequent right of
appeal to the Security Vetting Appeals Panel (SVAP). After further periods of
absence due to illness, the internal appeal meeting was fixed for 20 June
2007. On 12 June 2007, the Appellant was notified that if the decision at the
appeal hearing confirmed removal of his CTC clearance, it was proposed to
recommend that he be dismissed. The appeal meeting was conducted by Deputy
Assistant Commissioner Clarke, who decided to uphold the decision to remove CTC
clearance. The Appellant then immediately resigned.
2.
The Respondent’s case is that the actions described above were taken
because security checks suggested that the Appellant may have attended a
terrorist training camp in Pakistan in 2001. The Appellant admits having
travelled to Pakistan in 2001, but denies that he attended a terrorist training
camp.
3.
By two originating applications served on 22 February 2007 and 18
September 2007, the Appellant complained to the Employment Tribunal of direct
and indirect race, religious discrimination. Consolidated grounds of claim
were served on 2 February 2009, to which the Respondent replied by consolidated
grounds of resistance served on 11 February 2009. The Respondent denies
unlawful discrimination and asserts that the actions taken were for the purpose
of safeguarding national and public security.
Procedural history
4.
On 8 November 2007, Regional Employment Judge Latham heard an
application by the Respondent for an order under rule 54(2) of schedule 1 to
the Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004 that the proceedings should be conducted in private and that the Claimant
and his representatives should be excluded from all or part of the
proceedings. He was entitled to make such an order if “he considers it
expedient in the interests of national security” to do so. The only evidence
put before him was the witness statement of DCS Sait and his oral evidence. He
confirmed the facts summarised above, but declined to answer any question in
open session about the claim that the Appellant may have attended a terrorist
training camp in Pakistan in 2001. Judge Latham determined that it was
expedient in the interests of national security to make the order sought and
ordered that the Claimant and his representatives should be excluded from part
of the proceedings and that the remainder should take place in private – i.e.,
that the Appellant and his representatives should be present, but the public
excluded. Pursuant to rule 8 of schedule 2 to the 2004 regulations, he
informed the Attorney General of the proceedings with a view to him appointing
a special advocate to represent the interests of the Appellant in respect of
those parts from which he and his representatives were excluded. A special
advocate, Martin Chamberlain, was so appointed. For the purposes of this
appeal, he has been replaced by Tariq Sadiq. Judge Latham’s order was not made
until 2 June 2008 and the reasons for it were not sent to the parties until 9
December 2008, for the (good) reasons explained in his determination.
5.
On 16–18 February 2010, Employment Judge Lewzey conducted a closed
hearing of submissions made by the Respondent and the special advocate. She
gave an open written decision sent to the parties on 22 February 2010 about one
of the issues considered at that hearing and ruled that, on a proper
construction of schedule 2 the special advocate was “free to communicate on
open matters” with the Appellant and his representatives.
The appeal and cross-appeal
6.
By Notice of Appeal dated 20 January 2009, the Appellant appealed
against Judge Latham’s order of 2 June 2008. The Appellant requested, with the
concurrence of the Respondent, that the appeal be stayed until after the Appellant’s
claim had been determined on its merits by the Employment Tribunal. On 10
February 2009, the Employment Appeal Tribunal stayed the appeal, but directed
that progress should be reported by 30 September 2009 and at three monthly
intervals thereafter. A series of excusable mishaps, which it is unnecessary
for me to set out in detail, then occurred which led to the making of an order
on 6 August 2010 that the stay be lifted and that unless the parties objected
with reasons within 14 days, the appeal would be dismissed without further
order. No response having been received, the appeal was dismissed on 20 August
2010. The Appellant’s solicitor (whose absence from work for good reason was
the principal cause of the difficulties experienced by her firm) has stated in
a witness statement dated 21 March 2012 that she has been unable to find any
record of the order of 6 April 2010 in her firm’s file. I accept that
evidence. She discovered what had happened in a telephone conversation with an
associate at the Employment Appeal Tribunal. On 21 November 2011, the Appellant
applied for a review of the decision to dismiss the appeal and/or for relief
from the sanction imposed pursuant to the “unless” order of 6 August 2010.
7.
The Respondent cross-appeals against the decision of Judge Lewzey that
the special advocate is free to communicate on open matters.
8.
All proceedings, both at first instance and on appeal, have effectively
been stayed, without the need for a formal order, pending the decision of the
Supreme Court in Tariq v. The Secretary of State for the Home Department
[2011] UKSC 35, in which judgments were handed down on 13 July 2011.
The appeal/application for review and relief from sanction
9.
Rules 33(1)(c), (2) and 37(1) of the Employment Appeal Tribunal Rules
permit me to revoke the order of 20 August 2010 dismissing the appeal on the
ground that the interests of justice require that I should do so. I am
satisfied that they do, for reasons which it is only necessary for me to
explain briefly. I have already stated that I regard the mishaps which caused
the order to be made as excusable and that I accept the evidence of the Appellant’s
solicitor that she did not realise until 4 October 2011 that it had been made.
She then acted reasonably promptly to put matters right. The grounds of appeal
are a root and branch challenge to the lawfulness of the statutory scheme under
which Judge Latham made his order. Ms Monaghan QC, for the Appellant, accepts
that the issue has been definitively determined by the Supreme Court in Tariq.
That decision may, however, not be the last word on the topic. An application
has been made to the Strasbourg Court (and an application may be made to the
European Commission for a reference to the Luxembourg Court) that the
proceedings infringed Tariq’s rights under Article 6 ECHR
(and, if the Commission agrees, under Union law). No decision has yet been
made by the Strasbourg Court on the admissibility of the application. If
either court upholds Tariq’s challenge, domestic courts may have
to reconsider. In that event, this Appellant’s appeal might not be academic,
as it now is. If that were to occur, the most economical means of dealing with
the many problems which would arise would be for this appeal to be revived and
determined. Accordingly, I make the following order:
(i) The order of 20
August 2010 be revoked.
(ii) The Appellant’s appeal be
reinstated.
(iii)
The appeal be stayed.
(iv)The stay may
only be lifted by order of the President of the Employment Appeal Tribunal.
The cross-appeal
The procedural rules
10.
Special provision is made in the 2004 regulations for “national security
proceedings”, as defined by regulation 2: proceedings in which a direction has
been given or order made under rule 54 of Schedule 1 to the regulations. Rule
54(1) permits a Minister of the Crown to direct a Tribunal to conduct
proceedings in private and to exclude the claimant and his representatives from
all or part of Crown employment proceedings. Rule 54(2) permits a Tribunal or
Employment Judge to order likewise “if it or he considers it expedient in the
interests of national security”. Rule 54(4) imposes a general obligation on a
Tribunal or Employment Judge:
“When exercising its or his functions, a Tribunal or Employment
Judge shall ensure that information is not disclosed contrary to the interests
of national security.”
11.
Schedule 2 to the 2004 regulations applies to “national security
proceedings”, i.e., those in which a direction or order has been made under
rule 54: rule 1(1) of schedule 2. The rules of procedure set out in schedule 1
are modified in accordance with schedule 2 (regulation 16(2)) and, where there is
conflict between them, the latter shall prevail (rule 1(2) of schedule 2). The
ordinary rules for responding to a claim contained in rule 4 of schedule 1 are
modified by rule 3 of schedule 2, in two cases: when a direction is given under
rule 54(1)(b) (exclusion of the claimant) by a Minister of the Crown or when a
Minister of the Crown has informed the Tribunal under rule 54(3) that he wishes
to address it with a view to the Tribunal making an order under rule 54(2).
Neither provision applies in this case. The Respondent presented a response
compliant with rule 4 of schedule 1 and set out, to the extent that he was able
to do so, the grounds upon which he wishes to resist the claim in accordance
with rule 4(3)(d) of schedule 1. Rule 3(3) of schedule 2 provides:
“In a case falling within sub-paragraph (1)(b) where the
Tribunal or Employment Judge makes the order, or in a case falling within
paragraph (1)(a) the respondent shall within 44 days of the direction or order
being made, present to the Employment Tribunal Office (and where applicable to
the special advocate) the written grounds on which he resists the claim and
they shall be treated as part of the response.”
Again, this provision is not directly applicable to this case,
because no Minister of the Crown informed the Tribunal before Judge Latham made
his order that he wished to address him with a view to his making that order.
12.
Rule 8 of schedule 2 makes provision for the appointment and functions
of a special advocate. I have already referred to rule 8(1). Rules 8(4) to
(7) make provision for communication by the special advocate to the claimant
and his representatives:
“(4) Except in accordance with paragraphs 5 – 7, the special
advocate may not communicate directly or indirectly with any person (including
an excluded person) –
(a) (except in the case of the
Tribunal, Employment Judge and the respondent) on any matter contained in the
grounds for the response referred to in rule 3(3).
(b) (except in the case of a person
who is present) on any matter discussed or referred to during any part of the
proceedings in which the Tribunal or Employment Judge sat in private in
accordance with a direction or an order given or made under rule 54.
(5) The special advocate may apply for orders from the Tribunal
or Employment Judge authorising him to seek instructions from, or otherwise to
communicate with, an excluded person –
(a) on any matter contained in the
grounds for the response referred to in rule 3(3); or
(b) on any matter discussed or
referred to during any part of the proceedings in which the Tribunal or
Employment Judge sat in private in accordance with a direction or an order
given or made under rule 54.
(6) An application under paragraph (5) shall be made in writing
to the Employment Tribunal Office and shall include the title of the
proceedings and the grounds for the application.
(7) The Secretary shall notify the Minister of an application
under paragraph (5) and the Minister shall be entitled to address the Tribunal
or Employment Judge on the application”.
An “excluded person” means a person who has been excluded from
all or part of the proceedings by virtue of a direction or order under rule 54:
regulation 2(1).
13.
In every other circumstance in which a special advocate is appointed to
represent the interests of an individual in a national security case, the
special advocate is free to communicate with the individual and his
representatives until he first sees the closed material. From then on, he is
not permitted to communicate at all with the individual or his representatives
without the express permission of the Court or Commission: rule 36 Special
Immigration and Appeal Commission (Procedure) Rules 2003 SI 2003/1034, CPR
Part 76.25 (Control Orders), CPR 79.20 (Financial Restrictions Orders), CPR
80.21 (TPIMs) and rule 10, Proscribed Organisations Appeal Commission
(Procedure) Rules 2007 SI 2007/1286. Neither Mr Bryant, for the Respondent
or Mr Tolley, for the Home Secretary have been able to offer any explanation
for the difference between rule 8 of schedule 2 and those provisions. In
paragraph 2.38 of the Green Paper on Justice and Security of October 2011, the
Government proposes to make necessary amendments to the Employment Tribunal
Rules to bring them into line with other special advocate regimes – an implied
acceptance of the likelihood that schedule 2 (which first appeared in 2001 and
so was the first of the closed material procedures to be approved by
Parliament) is not as satisfactory as the other codes.
Submissions
14.
Mr Tolley and Mr Bryant submit that rule 8 should be construed so as to
produce, as far as possible without distortion, the same outcome as those
codes. The key is to be found in the words in rule 8(4)(a), “on any matter
contained in the grounds for the response referred to in rule 3(3)”: those
grounds are “the written grounds on which he resists the claim…(which) shall be
treated as part of the response”. Thus, anything which is in the response
presented under rule 4 of schedule 1, in particular the grounds upon which the
respondent wishes to resist the claim, and the written (closed) grounds on
which he resists the claim, which are to be treated as part of the response,
are matters contained in the grounds for response. Rule 3(3) has been used by
the draftsman to define the matters set out in rule 8(4)(a), not to specify the
trigger for the application of rule 8(4)(a).
15.
Mr Sadiq accepts the proposition in the last sentence of the previous
paragraph, but contends that the definition does not include what Judge Lewzey
described as “open matters”. Otherwise, the special advocate could never
communicate without the permission of the Tribunal, about the open case even
before he had seen any closed material.
16.
Ms Monaghan submits that rule 8(4)(a) only applies when the procedure
referred to in rule 3(1)(b) has been invoked by a minister – i.e. when, and
only when, a minister has appeared before and addressed the Tribunal with a
view to the making of an order by the Tribunal under rule 54(2). Any wider
construction would be stretching the statutory language beyond permissible
limits.
17.
I accept the submissions of Mr Tolley and Mr Bryant, for the following
reasons. A special advocate can be appointed “in any proceedings in which
there is an excluded person”, not just those in which a minister makes a
direction or addresses the Tribunal with a view to the making of an order under
rule 54(2): rule 8(1). Accordingly, it would have been surprising if the
draftsman of rule 8(4) had defined what could not be communicated to an excluded
person by reference to the circumstances in which an order under rule 54 had
come to be made. The draftsman has used the concluding words of rule 3(3) to
define the matters about which the special advocate is prohibited from
communicating with the excluded person: the written grounds on which the respondent
resists the claim. Those grounds include all of the written material, both
open and closed, which has been supplied to the special advocate. The effect
of rule 8(4)(a) is to prohibit the special advocate from communicating with the
excluded person or his representatives about anything to do with the substance
of the respondent’s case, whether open or closed.
18.
That interpretation of the rule has an unwelcome by-product. It means
that the special advocate cannot, without the permission of the Tribunal,
communicate with the excluded person and his representatives about the open
case, even before he has seen any closed material. This is an unavoidable
consequence of the use of the words “any matter contained in the grounds for
the response” in rule 8(4)(a). The drafting technique was to treat the closed
grounds of resistance as part of the response and to prohibit communication
about the response. That necessarily includes the open, as well as the closed,
part of the response. The difficulty – and possible unfairness – caused by
that interpretation of the rule can readily be remedied by an act which is
within the power of the Tribunal. When making an order under rule 54, the
Tribunal can and should routinely direct that the appointed special advocate
may communicate freely with the excluded person and his representatives at any
time before he sees the closed material upon which the respondent relies to
resist the claim.
19.
Thus construed, the rules provide substantially the same degree of
protection for a respondent as “standard” closed procedure rules and avoid what
Parliament has considered in other contexts to be the undesirable consequence
of leaving it to the special advocate alone to make a judgment about what he
may communicate to an excluded person after he has seen closed material.
Nevertheless, the two sets of rules are not precisely aligned. The special
advocate is free to communicate with the excluded person and his
representatives about any matter which is not to do with the substance of the
respondent’s case, without first seeking the permission of the Tribunal. For
example, he would be free to discuss procedural questions with the excluded
person’s open representatives. The practical difference between proceeding
under the schedule 2 rules and the “standard” closed procedure rules is
unlikely to be great.
20.
For the reasons given, I allow the cross-appeal.
Further observations
21.
Brief submissions were made to me about that part of the order which
requires that the whole of the proceedings should be conducted in private. I
understand that such orders are kept under regular review by the Employment
Tribunal. When that order is reviewed in this case, it should be borne in mind
that there is a legitimate public interest in those parts of the proceedings
from which the Appellant and his representatives are not excluded. Cogent
grounds would be required to justify the exclusion of the public from that part
of the case.
22.
When Judge Latham heard the application for an order under rule 54(2),
he did not have the advantage of the guidance given by Underhill J in AB
v. Secretary of State for the Defence [2010] ICR 54 at paragraph 11,
especially p.61 c-d. He was obliged to decide the application on the material
recited above. In theory, his decision was open to criticism because he had
not been able to satisfy himself that the DCS Sait’s inability to give open
evidence about the closed grounds of resistance was justified. I have now seen
the material which underlay his answers. I am satisfied that, in the light of
that material, Judge Latham’s order was justified – indeed, that any other
order would have been wrong.