In AB v Sect. of State for Defence [2010] ICR 54 Lord Justice Underhill stated of exceptions to the open justice principle, in the national security context:
In Tariq v Home Office [2011] UKSC 35 , [2012] 1 AC 452 , the Supreme Court considered the compatibility of the Special Advocate procedure with Convention rights. Lord Mance stated:
Lord Hope held:
Lord Dyson held:
What is apparent from these authorities is that the CLOSED procedure can be compatible with Article 6 fair trial rights, in large part because its applicability, and the possible provision of some information to the employee, is under the control of an Employment Judge, who must balance the competing factors to ensure fairness, only necessary derogation from the open justice principle, and compatibility with Convention rights.
In R (Unison) v Lord Chancellor [2017] UKSC 51 , [2020] AC 869 Lord Reed JSC stated, in the very different context of the Employment Tribunal fees regime then in place, of any limitation to access to justice :
To consider the extent of any "implied limitation" and whether the claimant's suggested application of the Section 3 HRA interpretative obligation gives rise to an impossible interpretation, it is necessary to consider the objectives that Section 56 IPA is intended to serve. In doing so, it is important to have in mind Lord Justice Underhill's comments in AB about the particular nature of the interests of national security, which the Employment Tribunal (or indeed EAT) may not be well placed to assess; and the importance of recognising the weight which must be accorded to any real risk to the interests of national security; and of the limits to the assessment of that risk which it may realistically be possible to carry out. All that said, as Lord Justice Underhill stated, tribunals cannot abdicate their responsibilities to make the necessary assessment whenever national security is invoked.
The core purpose of the IPA is to outlaw certain methods of the interception of communications generally; but to permit the lawful interception of communications in limited circumstances, including where it is necessary in the interests of national security. Section 56 IPA is to be construed in that context. In broad terms, section 56 IPA prevents evidence being given in proceedings that relates in any way to intercepted communications, primarily to protect the interests of national security.
It is obvious that evidence about the interception of communications could damage the interests of national security. There may be powerful reasons why the content of intercepted communications must be kept secret. The protection will often extend to the methods by which communications are intercepted and the identity of those whose communications are intercepted; either individually or because of their membership of some group. I shall refer to information that requires protection in the interests of national security as "sensitive information".
The paradigm example of the application of Section 56 IPA in the Employment Tribunal is where there is evidence, of which the employee is unaware, disclosure of which could result in sensitive information becoming known to the public and/or to the claimant and any people whom the claimant might tell about it. It is easy to understand why the consideration of sensitive information can make the CLOSED procedure appropriate in such cases.
In the scenario considered in this appeal, it is assumed, being neither accepted nor denied, that employees work with intercepted communications. Any content, origin, individuals involved and method of such assumed interception is unlikely to be relevant to any claims of such employees in the Employment Tribunal. It is unlikely that there would be evidence that would result in the disclosure of sensitive information in the scenario that has been assumed.
The respondent's interpretation of Section 56(1)(b) IPA would require that the Employment Tribunal proceedings be conducted in CLOSED in the absence of the employees. While Special Advocates could be appointed they could not discuss the material relied on by the respondent with the employees or their legal representatives as a result of the provisions of Paragraphs 14 and 15 of Schedule 3 IPA .
On a literal interpretation, the scope of Section 56(1)(b) IPA is exceptionally wide ranging. If a company supplied headphones to an "intercepting authority" and there was a commercial dispute about the sale of those goods, it could be argued that the sale of headphones tends to suggest that "interception-related conduct may be going to occur" and so any evidence about the sale of the headphones or their specifications would be precluded by Section 56(1)(b) IPA . It might be said that is an absurd example, but is it so much more surprising than the respondent's contention that, merely because an employee is assumed to have worked in a role that involved some consideration of intercepted communications, the employee must be excluded from Employment Tribunal proceedings and cannot be told about, or give instructions on, the evidence, even if the determination of the complaints would not require the consideration of any sensitive information?
The problem with the respondent's interpretation is that it means that by operation of Section 56(1)(b) IPA the discretionary CLOSED procedure in the Employment Tribunal becomes mandatory in interception-related conduct cases; which undermines the basis upon which the CLOSED procedure has been held to be lawful; i.e. because it involves an Employment Judge weighing up the competing interests; including the interests of national security, the open justice principle and the Article 6 rights of the employee. Paragraph 15 of Schedule 3 IPA prevents an Employment Judge from considering the possibility of even providing a gist of any relevant evidence to the employee. The Employment Judge would not be able to consider whether the interests of national security could be secured by any of the less invasive orders that are available in cases involving issues that may impact on national security, such as holding part of the hearing in private.
Having regard to the Section 3 HRA interpretative obligation, I consider that the problem can be resolved by limiting Section 56(1)(b) IPA , in this employment law context, to apply to particular interception-related conduct. I use the term "particular" rather than "specific", as was suggested by the claimants, to provide a broader protection than would apply if Section 56(1)(b) IPA only covered "specific" interceptions of communications. The term is designed to be sufficiently flexible so that it will be for a Court or tribunal to determine in the factual circumstances of the case whether there is, or is not, particular interception-related conduct. Particular interception-related conduct could include the interception of a specific communication or group of communications, interception-related conduct targeting specific individuals or groups and various different types of interception-related conduct. It would be for the Employment Tribunal to determine whether there is particular interception-related conduct having regard to factors such as the seriousness of the prejudice to national security if the existence of the interception-related conduct were to become known and the risk of that occurring. The Employment Tribunal can have regard to the prejudice to the fair trial rights of the employee if Section 56(1)(b) IPA applies and to the other options available to ensure that sensitive information does not get into the public domain. Cases which involve interception-related conduct would be dealt with in a manner similar to other national security cases, the Employment Tribunal being under an obligation pursuant to Rule 94 ( ETR 2013 (now Rule 93 ETR ) to "ensure that in exercising its functions, information is not disclosed contrary to the interests of national security". The Employment Tribunal would balance the relevant interests in a similar manner to how it does generally when deciding whether to order that a hearing takes place in CLOSED. The Employment Tribunal can ensure that the degree of intrusion on the employee's participation in the hearing is not greater than is justified by the objectives which Section 56 IPA is intended to serve.
In effect, Section 56(1)(b) IPA would be rewritten in this employment law context as follows:
I can see nothing to suggest that this is an impossible interpretation. It goes with the grain of the IPA and is consistent with its purpose in preventing sensitive information getting into the public domain contrary to the interests of justice. It can only be assumed that the legislative intent behind Section 56 IPA was a proportionate protection of national security rather than a blanket exclusion of claimants from hearings which will only involve a broad consideration of their job role in circumstances that often will not pose a risk to national security.
In disposing of the individual appeals my intention is that the management of the proceedings will be for the Employment Tribunal, which will be best placed to ensure that any orders necessary for the protection of national security are in place, that they are kept under regular review and if, as disclosure takes place, witness evidence is exchanged and the hearings proceed, there is evidence about particular interception-related conduct, that Section 56 IPA is applied.
Within 14 days of the hand down of this judgment the parties should provide written submissions as to the next stages of dealing with the determination, and disposal of, the individual appeals, including whether CLOSED material should now be made available to the claimants, whether a further hearing is required, or the remaining matters can be dealt with on paper, and any orders that may be necessary to protect the interests of national security in these appeals.