Closed Proceedings

[Thanks to Emma Price of Temple Garden Chambers for providing this case summary]

The Court of Appeal has handed down its Judgment in The Home Office v Tariq , which is authority for the proposition that: 1) an ET has the power to order a closed material procedure; but 2) the Crown must provide an employee and his legal representatives with a gist of the closed material on which it seeks to rely.

It was held that the ET Rules 2004 and the ET (Nat Sec) Rules 2004 did not breach EU law or Article 6 of the ECHR. However, the Home Office had an obligation, arising from the control order cases of A and AF No.3). Lord Justice Kay cited Lord Brown's interpretation (in AF(No.3)) of the impact of Strasbourg decision in A, that a "suspect must always be told sufficient of the case against him to enable him to give 'effective instructions' to the special advocate". That the Secretary of State was not seeking to subject Mr Tariq to a control order but was simply defending a discrimination claim did not mean that A and AF(No.3) did not apply.

The decision may mean the somewhat unpalatable choice open to public authorities is between disclosure of sensitive information and capitulation.