Closed material procedure: "gisting" not required where claimant’s liberty not involved

Home Office v Tariq [2011] UKSC35 SC

national security proceedings | closed hearings and evidence

The Supreme Court has held that closed material procedures are not contrary to EU law or the European Convention on Human Rights and that, where an individual’s liberty is not involved, “gisting” is not required. 

Mr Tariq, a Muslim of Asian/Pakistani origin, was employed as an immigration officer by the Home Office. In 2006, he was suspended and his security clearance was withdrawn, due to the arrest of his brother and cousin on suspicion of planning to mount terrorist attacks. There was no suggestion that Mr Tariq was involved in any terrorist plot, but the Home Office was concerned that the suspects might put pressure on him to abuse his position in immigration. He claimed direct and indirect discrimination, arguing that the decisions to suspend him and revoke his security clearance were made merely because he was the same religion and race or ethnic origin as the suspected terrorists. 

Employment tribunals have the power to order a “closed material procedure” where it is expedient in the interests of national security. The tribunal in this case made such an order, whereby Mr Tariq and his representative should be excluded from parts of the proceedings when closed evidence was being considered. A special advocate was appointed to represent Mr Tariq’s interests during the closed parts of the proceedings. 

Mr Tariq appealed the tribunal’s decision to order a closed material procedure to the Employment Appeal Tribunal (EAT), arguing that the procedure is incompatible with EU law and his right to a fair hearing under the European Convention on Human Rights. The EAT held that, although the procedure is not unlawful under EU law, case law means that the Home Office was required to provide Mr Tariq with enough information on the allegations against him to enable him to give instructions to his legal team so that those allegations could be challenged effectively (a requirement known as “gisting”). 

The case went to the Court of Appeal, which upheld the EAT decision, and then to the Supreme Court. 

The Supreme Court agreed with the EAT and Court of Appeal decisions that the closed material procedure is not contrary to EU law or the European Convention on Human Rights. The Court stated that a line of European Court of Justice cases has established that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined. The crucial issues are whether or not the system in question is necessary, and whether or not it contains sufficient safeguards. The Court held that both tests are satisfied in respect of the closed material procedure. 

By an eight-to-one majority, the Court allowed the Home Office’s appeal against the Court of Appeal decision that “gisting” was required in this case. The Court found that the European Court of Human Rights has held that, where the liberty of an individual is involved, the European Convention on Human Rights means that “gisting” is required. However, in cases that do not involve the liberty of the individual in question, such as the present one, the question is whether or not the use of the closed material procedure will impair the “very essence” of the claimant’s right to a fair trial. The majority of the Court held that, in this case, Mr Tariq’s right to a fair trial would not be impaired: his claim will be determined by an “independent and impartial” tribunal, and the disadvantage to him will be minimised. 

Additional resources

• Home Office v Tariq [2010] IRLR 1065 CA Read HR & Compliance Centre's report on the Court of Appeal decision in this case. 
• Does national security justify dismissal? Dismissing staff who pose a national security risk could still land employers in a tribunal. David Appleton, partner, employment and incentives department, Lewis Silkin explains. 

Case transcript of Home Office v Tariq (on the BAILII website)