Closed procedure (2)

Tariq v Home Office [2010] EWCA Civ 462, [2010] All ER (D) 08 (May)

The closed material procedure for national security cases prescribed in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 was not inherently unlawful by reference to EU law or the European Convention on Human Rights 1950 art 6. The claimant was entitled to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal representatives so that those allegations could be effectively challenged. The Secretary of State had to provide a gist of the closed material upon which it sought to rely to the claimant and his legal representatives in the tribunal proceedings. The instant case was not put in a different category by the fact that the Secretary of State was not seeking to subject the claimant to a control order but was simply defending a discrimination claim. If the claimant’s legal representatives, and/or the special advocate who would represent his interests in the closed part of the hearing, were of the opinion that his interests would be best served by hearing the open evidence before the closed evidence at the substantive hearing and made an application for a direction to that effect, there would have to be very cogent reasons indeed to justify a decision by the tribunal that the closed evidence should be heard before the open evidence.