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

	APPEARANCES

For the Appellant	MS KARON MONAGHAN 
(One of Her Majesty’s Counsel)
Instructed by: 
Russell Jones & Walker Solicitors 50–52 Chancery Lane
London 
WC2A 1HL	
For the First Respondent	MR KEITH BRYANT
(of Counsel)
Instructed by: 
The Metropolitan Police Service Legal Services 
New Scotland Yard 
Broadway 
London 
SW1H OBG
	
For the Second Respondent	MR ADAM TOLLEY
(of Counsel)
Instructed by: 
Treasury Solicitor’s Department  One Kemble Street 
London  
WC2B 4TS	
Special Advocate	MR TARIQ SADIQ 
(of Counsel)
Instructed by: 
The Treasury Solicitor’s Department 
Special Advocates Support Office One Kemble Street
London 
WC2B 4TS	

SUMMARY
RACE DISCRIMINATION
Direct
Indirect
NATIONAL SECURITY
PRACTICE AND PROCEDURE – Postponement or stay

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  On 29 November 2006 Detective Chief Superintendent Sait notified the Appellant that his CTC clearance was withdrawn, that he had an internal right of appeal and a subsequent right of appeal to the Security Vetting Appeals Panel (SVAP).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.