Following much controversy, the Justice and Security Act 2013 came into force in July 2013. Part II extends closed material proceedings to cover all civil proceedings. These proceedings are not new in employment cases (see old rule 56 and, since July 2013, rule 94 of the ET Rules) but their use has been gaining momentum in the last few years.

The controversy

‘He asked, “And why am I under arrest?” “That’s something we’re not allowed to tell you. Go to your room and wait there.”’ This extract from Franz Kafka’s novel The Trial describes Joseph K’s fictional ordeal, but it could equally have been describing a CMP in Great Britain in the 21st century.

CMPs represent a departure from the basic common law principles of natural and open justice by allowing the government to rely upon ‘closed material’ against a claimant without disclosing it to them or their lawyers or giving them the opportunity to challenge it where disclosure is likely to damage national security. Disclosure is permitted to an SA who is a security-cleared lawyer appointed by the Attorney General to represent the claimant’s interests at the CMP.

Although SAs see the closed material, they are forbidden to disclose that material – or even a gist of it – to the claimant, nor are they permitted to take instructions from the claimant on it. At CMPs, the claimant and her/his open legal representatives are excluded from the hearing, leaving the SA to challenge the closed material and the witnesses in support without the claimant having had the chance to see the material or challenge it, or to give proper instructions to the SA. The task of the SA was described by the late Lord Bingham, the former Lord Chief Justice, as like ‘taking blind shots at a hidden target’.

Criticisms of the system of CMPs are widespread and well documented. The Joint Committee in Human Rights in its report, ‘Counter-Terrorism Policy and Human Rights’ (26 February 2010), was scathing about CMPs. Having heard evidence from a number of SAs, the committee concluded:

‘After listening to the evidence of the special advocates, we found it hard not to reach for well-worn descriptions of it as “Kafkaesque” or like the Star Chamber… Indeed, we are left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.’

The employment cases

Typically, cases involve the removal of security clearance, suspension and ultimately the dismissal of employees who are suspected of having links with alleged terrorists, terrorist organisations or unfriendly foreign governments.

The leading case is the Supreme Court decision in Tariq. Mr Tariq was summarily dismissed from his job as an immigration officer at the UK Border Agency. He was told that he had been dismissed because he was closely related to a suspected terrorist and, although they had no suspicions regarding him personally, the UKBA were concerned about the pressure that might be brought to bear on him by his relatives and associates who were possibly involved in terrorism. Mr Tariq brought a claim for race and religious discrimination.

The Supreme Court held by a majority of eight to one (Lord Kerr dissenting) that the ET Rules providing for CMPs were necessary to protect national security. The alternative of the Home Office having to pay off unmeritorious claims was not a possibility that the law should accept and the system contained sufficient safeguards in the form of SAs who could protect the claimant’s interests. Further, neither the common law nor ECHR Article 6 required that Mr Tariq should have disclosure of any of the case against him, not even a gist. The basis of this finding was that his liberty was not at stake, in contrast to cases involving loss of liberty such as control orders and detention orders, which required the disclosure of the gist of the allegations, regardless of how important the competing national interest might be in favour of withholding the information (see AF (No.3)).

But, as Lord Kerr pointed out in his dissenting judgment in Tariq, why should the right to a fair trial be based on the nature of the claim being made? A fair trial in any context demands that certain indispensable features are present to enable a true adversarial contest to take place. Moreover, SAs themselves don’t believe that their presence in closed hearings safeguards fairness.

Tariq is currently before the ECtHR with the claimant challenging whether the system of CMPs provided for in the ET Rules is compatible with his Article 6 rights.

These cases are not just limited to public sector employees. A recent example is Jamiluddin, which the tribunal described as a ‘unique and unprecedented case’. It involved an airline pilot whose pass for flying duties was withdrawn because of his links with two men arrested for alleged terrorist offences who had sought flying lessons in order to fly commercial aircraft. Although there was no evidence of any wrongdoing or misconduct on the part of Mr Jamiluddin, the tribunal dismissed his claims for race and religious discrimination on the basis that he was perceived to be a significant risk to aircraft safety and security.

The experience

The experience of CMPs generally, and in the employment context in particular, has been most forcibly put by SAs themselves in their consultative response to the Justice and Security Green Paper. In summary, they include:

• the prohibition on any direct communication with open representatives after the SA has received the closed material
• the inability effectively to challenge non-disclosure
• the lack of any practical ability to call evidence
• the difficulty in identifying a provision, criterion or practice for the purposes of an indirect discrimination case without full access to internal policies or procedures or statistics
• the apparent willingness on the part of judges to grant rule 54 orders, even when unsupported by adequate evidence
• the shortage of security-cleared employment judges, lay members, and employment tribunal staff. Most employment-related claims from around the country have been transferred to London Central Employment Tribunal, where there are only a small number of security-cleared employment judges dealing with such claims. Closed decisions need to be approved by a minister, and this leads to extensive delay
• since SAs are not permitted to give an indication of the impact of closed material on the merits of a claim (or indeed, on quantum issues), quite how the open representatives can then advise their clients as to the conduct of the litigation, including making and responding to offers of settlement is problematic.

No less problematic is how the appellate courts will deal with the issue of appeals. Will the EAT, Court of Appeal and the Supreme Court be willing to hold closed hearings to look at the closed material themselves and give closed judgments?

In Bank Mellat, the Supreme Court felt this was unpalatable. It reluctantly held a closed hearing and said afterwards that it had been unnecessary to decide the issue on appeal.

The future

The Government is rightly concerned about the dangers that can arise from the disclosure of sensitive material. Its premise is that CMPs will apply to a small number of cases where they are necessary to defend employment claims. The question being asked is whether the inroads into CMPs is a price worth paying when it comes to the departure from fundamental principles of natural and open justice. Strasbourg may yet hold the key to that dilemma