Home Office v Tariq

Factual and Procedural Background

The Plaintiff, an immigration officer, was granted security clearance in early 2003. Following the arrest of certain relatives during a major counter-terrorism investigation in August 2006, the Defendant withdrew the Plaintiff’s clearance and suspended him. Internal and external appeals within the security-vetting system were unsuccessful. On 15 March 2007 the Plaintiff began Employment Tribunal proceedings alleging direct and indirect discrimination on grounds of race and religion under the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003.

The Defendant applied for, and on 15 February 2008 obtained, an order under Rule 54 of the Employment Tribunals Rules for a closed material procedure (“CMP”). A special advocate was appointed to represent the Plaintiff’s interests during the closed phases. The Employment Appeal Tribunal upheld the use of the CMP but declared that Article 6 ECHR required the Plaintiff to receive a “gist” of the allegations. The Court of Appeal affirmed that declaration. The Defendant appealed to the Supreme Court against the “gisting” requirement; the Plaintiff cross-appealed, arguing that any CMP in an employment tribunal was unlawful under EU law and the Convention.

Legal Issues Presented

1. Whether domestic provisions permitting a closed material procedure with a special advocate in Employment Tribunal proceedings are compatible with EU equality Directives and with Article 6 ECHR.
2. Whether Article 6 ECHR invariably requires that a claimant receive the “gist” of the closed allegations sufficient to instruct representatives, even where disclosure would harm national security.
3. Whether, absent such disclosure, the proceedings become non-justiciable, requiring either striking out of the claim or automatic State liability.

Arguments of the Parties

Plaintiff’s Arguments

• Rule 54 CMPs violate EU equality Directives because they undermine the effectiveness of the right not to be discriminated against.
• Article 6 and Strasbourg authority (A v United Kingdom; AF (No 3)) establish an absolute right to a “gist” of the case so that the claimant can give effective instructions.
• Without disclosure, the Plaintiff faces an insurmountable disadvantage and the essence of a fair trial is lost.

Defendant’s Arguments

• EU Directives regulate substantive equality rights, whereas the CMP concerns procedural rules, a matter for national law.
• Security-vetting and surveillance cases (Leander; Esbester; Kennedy) show that Article 6 permits withholding sensitive material where necessary to protect national security, provided a special advocate and judicial scrutiny exist.
• An absolute “gist” rule would force the State either to endanger national security or concede unmeritorious claims, an outcome contrary to the rule of law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court held that Rule 54 CMPs, authorised by primary legislation, represent a proportionate response to the legitimate aim of protecting national security. EU Directives oblige Member States to secure effective remedies but leave procedural design to national systems; effectiveness is assessed by reference to Convention standards. Strasbourg jurisprudence draws a distinction between liberty-threat cases (requiring “gisting”) and national-security vetting or surveillance cases, where secrecy may prevail if adequate counter-balances exist.

Those counter-balances include: (1) scrutiny by an independent tribunal; (2) appointment of a security-cleared special advocate who can contest non-disclosure and test closed evidence; (3) the tribunal’s ongoing duty to review whether material can safely be opened; and (4) the possibility of withdrawing reliance on closed material rather than disclosing it. The Court rejected the Plaintiff’s suggestion that the State must either disclose or concede, noting that such a rule would undermine the very object of vetting.

On the “gisting” question, the Court ruled that Article 6 does not impose an invariable obligation to provide the claimant with the essence of the allegations in every civil case. In security-vetting employment disputes, withholding sensitive details is permissible where disclosure would compromise national security and where the safeguards above exist. The Employment Appeal Tribunal’s declaration was therefore set aside.

Holding and Implications

Appeal allowed; cross-appeal dismissed. The closed material procedure with a special advocate is lawful and compatible with EU and Convention obligations in employment security-vetting cases. Article 6 does not mandate “gist” disclosure where national security would be jeopardised and sufficient procedural safeguards are in place.

Implications: Employment tribunals may continue to adopt CMPs in national-security contexts, but must rigorously police the balance between secrecy and fairness. The ruling clarifies that the absolute “gist” requirement applies principally to liberty-impact cases, not universally across all civil proceedings.