Balancing the right to a fair and public hearing with national security

Home Office v Tariq [2011] UKSC 35 (13 July 2011)

Summary

In this case, the United Kingdom Supreme Court considered the nature and scope of the right to a fair hearing and, in particular, the circumstances in which the nature of allegations against a person can be withheld from them in the interests of national security.

Facts

Mr Kashif Tariq was employed with the Home Office as an immigration officer from 21 April 2003 until he was suspended from duty on basic pay on 19 August 2006. Mr Tariq was suspended while consideration was given to the withdrawal of his security clearance granted on 18 February 2003. On 20 December 2006, Mr Tariq's security clearance was withdrawn. His internal appeal and appeal to the Security Vetting Appeals Panel were unsuccessful.

On 10 August 2006, Mr Tariq's brother and cousin were arrested during a counter-terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariq's brother was subsequently released without charge. On 8 September 2008, Mr Tariq's cousin was convicted of conspiracy to commit murder, having previously pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance. Investigations revealed that Mr Tariq had not himself been involved but there was a concern that he could be vulnerable to attempts to have him abuse his position at the Home Office.

Mr Tariq commenced proceedings in the Employment Tribunal on 15 March 2007. He complained that his security clearance was withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion. Mr Tariq argued that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or people of Pakistani origin, such as susceptibility to coercion or brainwashing. The Home Office contended that there was no such discrimination and that the decisions made in relation to Mr Tariq were made for the purposes of safeguarding national security.

The Employment Tribunal made an order for a 'closed material procedure'. This meant that the applicant and his representatives were excluded from certain aspects of the proceedings on the grounds of national security. Mr Tariq's challenge to this order was dismissed by the Employment Appeal Tribunal on 16 October 2009 and the Court of Appeal on 4 May 2010. However, the Employment Appeal Tribunal's declaration that article 6 of the European Convention on Human Rights required Mr Tariq to be provided with allegations made against him in sufficient detail so as to enable him to brief a special advocate to effectively challenge the allegations, was upheld by the Court of Appeal. The Home Office appealed to the Supreme Court against this declaration. Mr Tariq cross-appealed against the order for a closed material procedure.

Decision

While the right to a fair trial was considered to be an absolute right, the Court noted that the elements of a fair trial, or the rights that are implied by the right to a fair trial, are not. Consequently, the Court had to determine whether the closed material procedure, in restricting a public hearing, would amount to a denial of the right a fair hearing to the applicant. In articulating the relevant issue, Lord Hope stated:

At the heart of both the appeal and the cross-appeal are two principles of great importance. They pull in different directions. On the one hand there is the principle of fair and open justice. … On the other there is the principle that gives weight to interests of national security. … The context will always be crucial to a resolution of questions as to where and how this balance is to be struck.

Lord Mance, with whom Lords Hope, Brown, Kerr (in part, see below), Dyson, Phillips, Clarke and Lady Hale agreed, referred to three cases of the European Commission and Court of Human Rights, which establish that national security is a relevant countervailing interest that may ”justify a system for handling and determining complaints under which an applicant is, for reasons of national security, unable to know the secret material by reference to which his or her complaint is determined.”

The Home Office argued that the scrutiny of the Employment Tribunal of the secret material and the appointment of a special advocate for the applicant is sufficient to overcome any disadvantage created by the closed material procedure. The majority of the Court agreed that within these circumstances, the right to a fair trial did not require a disclosure of allegations to the applicant. Lord Mance emphasised the fact that the case did not affect the liberty of the applicant and that the deprivation or interference with liberty is much more serious. Lord Mance, therefore, distinguished between criminal cases and those concerning surveillance and security vetting in determining whether a closed material procedure will prevent a fair trial.

Lord Kerr agreed that the closed material procedure is not necessarily incompatible with article 6 of the European Convention. However, Lord Kerr dissented on the question of whether the Court of Appeal was correct in finding that it was necessary for the Home Office to disclose sufficient information about the allegations against him. Lord Kerr noted

The opportunity to know and effectively test the case against him (the core irreducible minimum entitlement) surely captures the essence of the right [to a fair trial]. And it seems to me that the essence of the right cannot change according to the context in which it arises.

Consequently, Lord Kerr considered that it was necessary for a party to be provided with sufficient information about the allegations to allow him or her to give effective instructions to a special advocate. Lord Kerr would have dismissed both the appeal and cross-appeal.

Relevance to the Victorian Charter

As stated above, the UK Supreme Court found that the right to a fair trial is considered an absolute right. However, the elements of this right, or the rights implied by it, including the right for a trial to be heard in public, are not. This case may provide interpretative assistance for Victorian courts and tribunals in relation to the right to a fair and public hearing protected by section 24(1) of the Charter. This is particularly the case with respect to a court or tribunal's discretion to exclude persons from all or part of a hearing if permitted to do so by a law other than the Charter, provided by section 24(2).

The can be found online at: http://www.bailii.org/uk/cases/UKSC/2011/35.html

Aleisha Brown is a Law Graduate with Allens Arthur Robinson