Lewis Graham, PhD Student at Pembroke College, Cambridge.
The First Section Committee recently handed down its Decision in Gulamhussein and Tariq v the United Kingdom (Application Nos. 46538/11 and 3960/12) (hereafter “Tariq v UK”). It acts as a de facto appeal from a UK Supreme Court decision handed down seven years ago, and sees the European Court of Human Rights returning to the thorny issue of Article 6 protections in the context of closed material procedures. The takeaway point is this: the ECtHR has clarified the position of its previous case law, and in doing so has ultimately approved the UK courts’ approach to Article 6 in the context of closed material procedures.
Facts and Background
The facts are as follows: Mr Tariq was employed by the Home Office as an immigration officer until the revocation of his security clearance in 2006. He was informed that this had taken place due to his “close association with individuals suspected of involvement in plans to mount terrorist attacks”. As such a clearance was a necessary prerequisite to employment in his position, he was subsequently dismissed from his post. Tariq sought to challenge this decision, alleging discriminatory behaviour, in the domestic employment tribunal. There, certain general information about his case was provided to him by the Home Office, and certain further information was sent to the relevant tribunal. Tariq sought access to this additional information to help him make his case; he objected to the court being able to access documents about his own case that he himself was unable to consult. The Home Office refused this; any further disclosure, it asserted, would risk revealing potentially sensitive information relating to the protection of national security.
Under domestic rules, a “closed material procedure” was set up. This is a controversial process whereby the court appoints a special vetted counsel to communicate the interests of a party without risking the exposure of sensitive national security details. The limitations of the advocate’s role was provided by Sedley LJ in a domestic case:
“A special advocate system is thus not a substitute for the common law principle that everyone facing an accusation made by the State is entitled to a fair chance to know the evidence in support of it and to test and answer it in a public hearing. But it is the best procedure so far devised to mitigate the effect of trial without disclosure if such a trial is unavoidable.”
Tariq argued that this was not enough. He asserted that compliance with Article 6 ECHR required further disclosure than he was provided with and that the special advocate procedure fell below this standard. He argued that at the very least, he should be given the “gist” of the accusations against him so he could effectively argue against them. For this, he relied on the Grand Chamber’s landmark 2009 ruling of A and Others v United Kingdom.
In that case, also concerning the use of closed procedures, the Court suggested that in deciding whether to withhold information from a given party, the starting point should be that as much as possible should be provided, but where this is impossible, this must be significantly “counterbalanced” (para ) so as not to deny the very essence of the right to a fair trial under Article 6. Consequently, despite the existence of weighty public interest grounds for redacting the information (), the use of special advocates (), and oversight by an independent tribunal (), the Court found that the applicant in that case – seeking to challenge a control order – was simply not given enough information to be able to challenge his case fairly. Failure to provide this information (the so-called ‘gisting’ requirement) ultimately lead the Court to find a breach of Article 6. The domestic court subsequently adopted this position in an analogous case.
In Tariq’s case, whilst the Employment Appeal Tribunal and Court of Appeal, relying on A and Others, found that he was entitled to further disclosure in his case, the Supreme Court was not convinced. It distinguished A on the grounds that the claimant in that instance had sought to challenge the imposition of a control order, under which he suffered from a severe restriction on movement, akin to a deprivation of liberty. Tariq’s case, the Supreme Court held, was different. His was not “a case where he is the victim of action taken against him by the state which deprived him of his fundamental rights” () but “an entirely different case” (). The ‘gisting’ requirement in A and Others did not translate directly to cases such as his. Rather, in such situations, Article 6 compliance denotes a lower threshold, one which could be satisfied with minimal disclosure and the safeguards inherent to the special advocate scheme itself. No Article 6 breach had therefore occurred. Lord Kerr dissented (against a majority of eight judges, no less), suggesting that the approach laid down in A and Others had universal application, and ‘gisting’ was required in all circumstances. Therefore, he would have found a breach of Article 6 on the facts.
The majority’s categorical approach (elsewhere described as a “sliding scale” or “spectrum” approach) has since been adopted in a number of other domestic cases; ‘gisting’ requests have been denied in cases involving a number of situations falling short of liberty deprivations (including, remarkably, threats to life and limb). The approach of the majority of the Supreme Court, then, seems to have become settled law in the United Kingdom.
It is worth mentioning at this stage that in the period between the handing down of the A and Others case (February 2009) and Tariq’s appeal to Strasbourg (April 2018), the European Court had the opportunity to assess the legality of non-disclosure of information, in similar (but in each case, notably different) contexts.
The first case to note is Kennedy v United Kingdom. In that case, the applicant, complained to the Investigatory Powers Tribunal, a specialist domestic tribunal, about an alleged interference with his personal communications. He was told very little about the determination of his case, only that his claim was ultimately unsuccessful. Further information about his case was withheld from him to ensure the integrity of any state surveillance regime, which the Court found was permissible given “the importance of such measures to the fight against terrorism and serious crime” (Kennedy, para ). Owing to the seriousness of the national security concerns in play and the limited safeguards, including the expertise and independence of the tribunal itself, ultimately no breach was found.
Similar results were reached in two more recent ECHR decisions, Regner v Czech Republic (see commentary here) and IR and GT v UK. In Regner, the reasons for the revocation of a security clearance were provided to the court, but not to the applicant who relied on the clearance. No breach of Article 6 was found. In the latter case, the Court dismissed a claim relating to access to information, in the context of deportation proceedings. In that case, concerning Article 8, A and Others was also distinguished; the Court found that the special advocate procedure provided sufficient safeguards to satisfy the requirements of that Article. Whilst that case concerned a different substantive Article, it concerns the Special Vetting Appeals Panel – the same one Mr Tariq complained about in the present case.
By the time of the Tariq decision, then, the Strasbourg Court had at its disposal both the substantive judgment in A and Others, but also a number of subsequent decisions which touched on very similar points of law.
Tariq v the United Kingdom
To reiterate, the question in Tariq’s case, was whether the domestic interpretation and application of ECtHR case-law was correct. Tariq sought clarification by the European Court and the result of that appeal was handed down (in a decision joined with Mr Gulamhussein, a separate claimant) on 26 April 2018. Ultimately, it agreed with the Supreme Court, and rejected Tariq’s complaint, finding it manifestly ill-founded.
As Mr Tariq specifically complained about the proceedings of the Employment Tribunal (Tariq v UK, para ), the Court accepted that Article 6 was engaged; the Tribunal, as an official judicial body, was subject to a duty to comply with the requirements of Article 6 in any proceedings it conducted. In comparison, the complaint of the other claimant, Mr Gulamhussein, was dismissed, because the body involved – the Special Vetting Appeal Panel – had a role which was merely highly persuasive” rather than “directly decisive” to the outcome of his case (para ). The Court raised an issue at the outset regarding Tariq’s decision not to appeal the specific outcome of the Employment Tribunal’s determination (para ) but proceeded onwards regardless.
The Court then moved on to the primary issue of whether Article 6 ought to have granted Tariq further disclosure in his case. The government repeated the argument which prevailed in the domestic court: that it did “not accept… that [the] Court’s findings in A and Others… mean that in the present context… it is invariably essential for someone to know the “gist” of the case against them” (para ). Tariq argued that even if the A and Others principle was not of universal application, it should nonetheless have benefitted him on the facts.
The Court reiterated that Article 6 is not an absolute right in every respect, although it features at its core a “very essence” which cannot be interfered with by any means. In other words, “only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible” (para ). It also repeated that safeguards and protections present in the scheme “as a whole” (para ) can aid in “counterbalancing” any violence to Article 6’s core. Provided such safeguards are sufficiently robust, they can render interferences permissible (para ).
And, indeed, the Court did find that there existed sufficient safeguards within the closed material procedure system as a whole, at least in Tariq’s case, to render it compatible with Article 6. Most importantly, the Court drew attention to the fact that, though imperfect, Tariq had the special advocate at his disposal; through that individual, “arguments were made on the applicant’s behalf” (para ). This seems like a shift in tone for the Court, as the same procedure was lambasted for its defects in the aforementioned A and Others case. The Court makes a passing reference to this criticism in Tariq v UK (para ) but does no more than acknowledge that it has been “noted”.
Other factors which the Court deemed sufficient to mitigate the unfairness of withheld information included: the fact that he did have knowledge of a small amount of information regarding his case and was not completely in the dark (paras , ); the Employment Tribunal was independent and impartial (para ) with access to all the relevant documents and information itself (para ), the choice to withhold information was not arbitrary or unreasonable (paras -, although the Court spends no great amount of time questioning this) and the domestic courts had explained to Mr Tariq in their open judgment that they had at their disposal further closed information, and that such material had been considered by them in his case (para ). Finally, the Court implies (at para ) that the availability of judicial review may have served as an additional safeguard, although it should be noted that this safeguard may have been weakened as the UK Supreme Court recently held that judicial review proceedings concerning a decision that was made under a closed material procedure can itself be undertaken in closed proceedings if necessary.
As such, the Court considered that the safeguards included in the closed material procedure, particularly the involvement of the special advocate, mitigated the overall adverse impact of non-disclosure of materials to Mr Tariq.
The result, in one sense, is unsurprising, given the trajectory of the Strasbourg case law, above. The domestic authorities had relied heavily on Kennedy in reaching their conclusion. At Strasbourg, both Regner and IR and GT were referenced frequently in the Court’s decision – whilst A and Others is cited, it is mainly found in the sections detailing the parties’ submissions and domestic history. It would seem that the European Court now sees the Regner case as espousing the authoritative version of the law (notwithstanding its many detractors, even within the case itself), and is trying to reinforce this through its judgments. The message is thus clear: national security can trump fair trial rights; the stringent approach in A and Others is (at least now) restricted to only the most exceptional cases.
This outcome is bad news for the many sceptics of the closed material procedure. One of its most ardent criticisms is that whilst the withholding of information may be justified in certain specific instances, grounding this possibility as a legitimate institutional option risks opening the process to ever-increasing number of permissible situations, the dilution of oversight, and the overall ‘normalisation’ of a once-exceptional procedure. Indeed, the ECHR’s approach, moving from its position in A to a much more permissive one in IR, Regner and now Tariq, may constitute evidence of the “slow creep of complacency” (Lord Hope in AF, para ) of which these critics warn.