Al Rawi and Deghayes are the same case – called Al Rawi in the High Court and Court of Appeal, but Deghayes in the Supreme Court. Tariq is a separate case from Deghayes but was heard by the Supreme Court at the same time due to the overlap in issues.
Al Rawi concerned the power of the court to allow use of secret evidence in a civil claim for damages. Tariq concerned this power in relation to employment tribunal hearings.
The subject matter of the two cases is different, but similar principles are engaged in both. The first case, Al Rawi, former Guantanamo Bay detainees brought claims against UK Government agencies for complicity in their detention, rendition and mistreatment. The Government submitted that it had an implied right to utilise special advocates and a secret evidence procedure if it needs to rely on sensitive material to defend the claims. This material would not be shown to the claimant or his legal representatives but would be seen by a special advocate appointed to act on his behalf, The Government also wished the court to be able to give a secret judgment that would have been withheld from the claimants themselves. These steps were permissible but highly criticised and had never been used in civil claims before.
The second case, Tariq, involved an employment issue. Tariq was an immigration officer but had his security clearance withdrawn after the arrest of his brother and cousin during a major counter-terrorism investigation. Following his claim for racial and religious discrimination, Tariq objected to the Employment Tribunal’s decision that the Home Office was permitted to use the secret evidence procedure. The Home Office submitted that it was allowed to use secret evidence to protect national security.
JUSTICE intervened in these cases to urge the Supreme Court to dismiss the appeals on the grounds that a, in Al Rawi, a closed evidence procedure cannot be adopted without a specific statutory power and, in both cases, this procedure would not be compatible with the right to fair and public hearing.
In Al Rawi the UK Supreme Court ruled decisively against the use of secret evidence in civil trials without parliamentary authorisation. The Supreme Court reasoned that the courts had no power to adopt a procedure allowing the use of secret evidence, on the basis that it would cut across the constitutional principle of open justice and the right to a fair trial. As Lord Kerr, writing as part of the majority, said:
“The right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of fairness.”
Lord Dyson explained that closed material procedures depart from the common law principles of open justice and natural justice. He goes on to say:
“The common law principles to which I have referred are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved.”
However, in the second ruling, Tariq, the Supreme Court held that closed material could be used before the Employment Tribunal in a claim involving national security. This was due to parliament legislation specifically created an exception in such cases. Employment Tribunals are established under the Employment Tribunals Act 1996. Section 10 of this Act specifically authorises the closed material procedure in the interests of national security, either by direction of a minister or by order of the employment tribunal or judge, and for the appointment by the Attorney General in that context of a special advocate. The provisions made to exercise this power are found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861).
A majority of the Supreme Court also held that, in such cases, the government was not required to provide claimants with sufficient details of the secret evidence in order that they receive a fair trial. In doing so, the majority distinguished employment claims from cases involving restrictions on liberty: “Detention, control and freezing orders impinge directly on personal freedom and liberty in a way to which Tariq can not be said to be exposed.”[Lord Mance, 27]
JUSTICE intervened in both Tariq and Al Rawi jointly with Liberty. The interveners were represented pro bono by John Howell QC, Naina Patel and Herbert Smith LLP.
Tariq v UK was heard in the European Court of Human Rights in June 2012. Judgment is expected soon. Read JUSTICE’s written submission in Tariq v UK at ECtHR