AS TO THE ADMISSIBILITY OF
Application No. 30976/96
by Andrew BALFOUR
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 September 1994
by Andrew Balfour against the United Kingdom and registered on 10 April
1996 under file No. 30976/96;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1950 and living in
Weybridge. Before the Commission, he is represented by Mr. P. Leach,
a lawyer with Liberty, London.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
In 1969 the applicant began his career with the Foreign and
Commonwealth Office ("FCO").
In 1986 the applicant was posted to Dubai as vice-consul and visa
officer. There he had dealings with a man called A. In early 1989 the
applicant provided Mr. A. with the number of a bank account in the name
of the applicant's brother-in-law, a Mr. A.B., in the United Kingdom.
On 16 April 1989 the applicant issued a visa to Mr. A. and in May 1989
Mr. A. transferred £5,000 into Mr. A.B.'s account.
On 27 May 1989 the applicant was instructed to return to London
and he did so the following day. There he was interrogated and for a
time was detained pursuant to the Prevention of Terrorism (Temporary
Provisions) Act 1984. No criminal proceedings were brought.
On 16 March 1990 disciplinary proceedings against the applicant
were commenced. The principal complaint was in the following terms:
"[The applicant] approached an Iranian businessman in Dubai
with a request to borrow £20,000. The businessman agreed to
lend [to the applicant] £5,000. Subsequently £5,000 was
paid into [Mr. A.B.'s] bank account. [The applicant]
subsequently induced [Mr. A.B.] to write three fictitious
letters to the businessman purporting to show that the
£5,000 was payment for a transaction between [his] brother-
in-law and the Iranian businessman, Mr. A. ... It cannot be
proved why these considerable sums of money and gifts were
received by [the applicant]. But their receipt, unreported,
and in one instance with an elaborate attempt at
concealment, amounts ... to breaches of the following
diplomatic service regulations ("DSR"): - (a) DSR 8
(General Principles of Conduct) and (b) DSR 9 (Acceptance
of Gifts and Advantages)."
On 12 September 1990, the disciplinary board found, inter alia,
that a sum of £5,000 had been transferred from Mr. A.'s account to that
of Mr. A.B. and that the applicant was aware that three fictitious
letters had been written by Mr. A.B. in an endeavour to show that the
£5,000 was paid pursuant to a legitimate commercial transaction. The
board noted that no invoices had been issued for the £5,000 and
concluded that the applicant had breached DSR 8 and 9 para. 2. Certain
other disciplinary charges were found not to have been made out. The
applicant's dismissal was recommended.
On 10 October 1990 the applicant wrote to the Foreign Secretary
enclosing a notice of appeal. On 16 October 1990, he was suspended
without pay.
On 30 October 1990 the applicant sent detailed grounds of appeal
to the FCO. On 4 December 1990 the FCO convened a disciplinary appeal
board which heard and considered the applicant's appeal. Mr. A.B.
declined an invitation to appear. The applicant's appeal was rejected,
and the applicant was dismissed with effect from 15 February 1991.
Meanwhile, on 11 January 1991, the applicant submitted an
application to the London (South) Industrial Tribunal claiming, inter
alia, that his grounds for appeal had been classified "secret" under
the Official Secrets Act, that he was not able to provide details and
that the grounds for his dismissal were wrong and unfair.
The FCO answered that the applicant's conduct in question was
obtaining the transfer of £5,000 from an official contact, namely an
Iranian businessman, to the account of the applicant's brother-in-law
in breach of DSR 8 and 9, which, inter alia, require officers not to
use their official position to further their private interests and not
to accept gifts or advantages. The FCO further observed that the
applicant, in his grounds of appeal had included certain material of
a secret nature, disclosure of which would be contrary to the public
interest. For that reason the whole document was given a "secret"
classification.
In amended grounds of application the applicant contended that
he had been requested by the United Kingdom security services to
maintain contact with Mr. A. and that the transfer of £5,000 was a
legitimate business transaction between Mr. A. and Mr. A.B. The
applicant said that he did not know that the money had actually been
transferred, and, insofar as he was involved in the writing of
fictitious letters, that was only an error of judgment on his part.
On 26 June 1991 the Secretary of State for Foreign and
Commonwealth Affairs signed the first of two certificates claiming
public interest immunity. His second certificate was dated 26 January
1992. A third certificate signed by the Secretary of State for the Home
Department was signed on 27 January 1992. The three certificates were
in similar terms. Each raised objection to the production of any
evidence, documentary or otherwise, about the organisation of the
security and intelligence services, their theatres of operation or
their organisations and the threat to national security of disclosure.
It has not been suggested that the certificates lacked particularity
either as to the nature and content of the material which attracted
immunity or as to the reasons for the claim.
On 6 October 1991, following a directions hearing by the London
(South) Industrial Tribunal, listed for 26 September 1991, the regional
office of the industrial tribunals wrote to the applicant:
"... the Secretary of State has issued a certificate that
certain parts of the material submitted to the disciplinary
hearing ought not in the public interest to be disclosed.
For reasons stated in the certificate the chairman will
require cogent evidence before he is able to take any steps
to decide that the interests of justice outweigh the
Secretary of State's objections.
The applicant is accordingly required ... to send to the
Treasury Solicitor ... particulars of all facts and matters
relied upon in support of his allegation that his dismissal
was unfair. Treasury Solicitor is within 14 days thereafter
to indicate to the Tribunal whether and if so what parts
are in conflict."
The applicant then submitted more detailed grounds of
application, a list of documents of which he requested disclosure, and
a list of witnesses whom he wished to call at the Industrial Tribunal.
The list contained eleven documents and fifteen witnesses.
By letter of 15 November 1991 the Treasury Solicitor passed the
applicant's material (but not the documents requested therein) on to
the London (South) Industrial Tribunal, having deleted those parts
which the FCO felt fell within the scope of the Foreign Secretary's
public interest immunity certificate. The letter added that the
application for discovery would be resisted on grounds of public
interest immunity and relevance.
On 29 January 1992 the chairman of the London (South) Industrial
Tribunal conducted an interlocutory hearing and ordered disclosure by
the FCO of documents 3, part of 7 and 8 while refusing to order
disclosure of those documents referred to in the public interest
immunity certificates. The applicant's representative's note of the
decision reads inter alia:
"... documents 1, 2, 4, 5, 7 (part of), 9, 10 (part of)
were cited in the public interest certificates and the
chair believed that she had no jurisdiction to order their
disclosure. She accepted that disclosure would cause
unquantifiable damage to the functions of the security and
intelligence operations and the safety and security of
personnel involved. ... She also accepted that Conway
v. Rimmer [1968] AC 910 and Council of Civil Service Unions
v. Minister for the Civil Service [1985] 1 AC 374 were
authority for the propositions that the court was not
competent to weigh up the risks involved in disclosure as
it was not privy to all the relevant background material
and therefore it could not go behind the decision of the
ministers exemplified by the public interest certificates.
Chair reluctantly accepted that document 6 was covered by
Section 9 of the Interception of Communications Act 1985
and that therefore the court could not order disclosure
that might reveal the existence (or non-existence) of a
warrant authorising a telephone interception."
On 9 March 1992 the applicant sent a notice of appeal to the
Employment Appeal Tribunal. He claimed that the chairman of the
Industrial Tribunal erred in law in her order for discovery in that:
(i) the contents of documents 1, 2, 4, 5, 7 and 9 were relevant in
considering whether he was unfairly dismissed and that the interests
of justice were served by such discovery, and (ii) the contents of
documents 10 and 11 materially assisted him in establishing his case
and it was in the interests of justice that they were discovered.
On 29 January 1993 the Employment Appeal Tribunal dismissed the
applicant's appeal. It stated that though the chairman's reference to
the industrial tribunal "not having jurisdiction" was incorrect, the
principles applied in her decision not to order disclosure were
fundamentally correct. The Appeal Tribunal concluded:
"We would, for our part, prefer to describe the process
involved in deciding whether there should be discovery of
documents in respect of which public immunity is claimed
and it is shown by ministerial certificates that their
disclosure would or might endanger national security as one
where the scale against disclosure is decisively the
heavier rather than as one where there is no balancing
exercise at all. We accept that since Conway v. Rimmer
[1968] AC 910 it is the court that has to decide. But, in
the vast majority of cases raising issues of national
security, this is more a question of phraseology than of
principle because the end result is the same.
There also remains the need for evidence to link the
documents in question to the reasoning in support of the
claim to public interest immunity. It is for the court or
tribunal deciding on the question of discovery to be
satisfied as to this. But that does not lead to the
conclusion that in all cases the court must itself inspect
the document concerned.
For these reasons, we concluded that the principles applied
by the chairman were fundamentally correct if one
interprets the reference to absence of jurisdiction in the
wide sense of the tribunal not being qualified to evaluate
the strength or validity of the national security reasons
advanced in the ministerial certificates, and on that basis
we dismiss this appeal."
On 19 January 1993 the applicant appealed to the Court of Appeal.
On 9 December 1993 the Court stated, upholding the decision of the
Employment Appeal Tribunal, that:
"... counsel for the applicant, whose basic submission was
that we should direct the industrial tribunal to inspect
the material in respect of which public interest immunity
is claimed so that the tribunal could thereafter rule on
its admissibility in the applicant's claim, referred to and
cited from a large number of authorities.
...
Further in the Council of Civil Service Unions case [1985]
ICR 1 Lord Diplock said, at p. 39: 'National security is
the responsibility of the executive government; what action
is needed to protect its interests is ... a matter upon
which those on whom the responsibility rests, and not the
courts of justice, must have the last word. It is par
excellence a non-justiciable question. The judicial process
is totally inept to deal with the sort of problems which it
involves.'
In this appeal [the applicant's counsel] boldly invites
this court to depart from these powerful dicta, contending
that they were obiter and that in the society in which we
now live, the time is ripe for what he described as a more
open approach when issues of national security are raised
by the appropriate ministers. Even if not constrained by
authority we firmly decline to accept that invitation, for
it seems to us to be contrary to principle and to good
sense. In this case the court has not abdicated its
responsibility, but it has recognised the constraints
placed upon it by the terms of the certificates issued by
the executive. There must always be vigilance by the courts
to ensure that public interest immunity of whatever kind is
raised only in appropriate circumstances and with
appropriate particularity, but once there is an actual or
potential risk to national security demonstrated by an
appropriate certificate the court should not exercise its
right to inspect. We recognise the importance of this case
to the [applicant] but, in our judgment, the uninhibited
prosecution of his claim for unfair dismissal cannot
prevail. We do not accept, as counsel submitted we should,
that in such a situation a defendant should abandon his
defence just as the Crown will abandon a prosecution where
there exists a risk of the innocent being convicted."
The Court of Appeal refused to give leave to appeal to the House
of Lords. The applicant made a petition for leave to appeal to the
House of Lords, in which he set out his grounds for appeal and the
principal questions of law that arose in his case.
On 24 March 1994 the applicant's petition was refused by the
House of Lords.
On 20 September 1995 the London (South) Industrial Tribunal found
that the applicant had not been unfairly dismissed. It stated inter
alia:
"40. The difficulty we find in accepting the applicant's
argument, based upon this matrix of possibilities, is the
lack of evidence to provide any credible explanation as to
why the Intelligence Services, or the Security Department
of the [FCO], would seek to achieve the dismissal of the
applicant. By his own evidence he acted throughout in close
co-operation with the Friends [MI6] working in Dubai and
there is no apparent reason for any lingering hostility
towards the applicant because of the events which had taken
place a few years earlier in Syria ...
41. Whilst there was concern about the applicant's work
and associations in Dubai independent of the specific
charges he later faced - he would hardly have been brought
back to the United Kingdom as he was had there not been -
we are satisfied, that the reason for the applicant's
dismissal was his conduct in relation to the transfer of
£5,000 by Mr. A. to the account of Mr. A.B., and the breach
of the Diplomatic Service Regulations it was believed to
entail. ...
...
48. We turn to the question whether the [FCO] had
reasonable grounds for its belief as to the applicant's
conduct, having carried out as much investigation as was
reasonable in circumstances of the case. There was a
notable consistency in the account of the transfer of the
£5,000 as given by Mr. A. and by Mr. A.B. and, as far as it
went, by Mr. G. ... It is clear, however, from [Mr. A.B.'s]
statement that he knew nothing of a prospective printing
order. There is, moreover, no credible explanation of why
Mr. A. should advance a substantial sum of money before he
had asked for even a quotation as to the cost of printing
work or, if he had done so, why he should not say so. ...
...
50. ... There was, in the opinion of the Tribunal,
evidence ... on which the disciplinary board could have
formed an honest belief, this on the balance of
probabilities as they expressed it to be, that the
applicant had contravened DSR 8(1)(b)(f)(g) and 9(2) by
accepting for himself or a member of his family 'gifts or
advantage' from someone with whom he had dealings in his
official position as entry clearance officer in Dubai. ...
51. ... The applicant raised, in the matrix of
possibilities, a number of matters that he contends should
have been further investigated, such as regularity in the
issue of visas, the activities of the Friends [MI6], the
circumstances of his recall to the United Kingdom, and his
arrest under the Prevention of Terrorism Act. ... The
applicant had given a single explanation of how the £5,000
came to be paid into the account of Mr. A.B. and we
consider that the investigation by the board into that, and
also into the other two matters before it which were less
serious, was both sufficient and reasonable. The
disciplinary board, and the appeal board would have wished
to have carried the investigation further by interviewing
Mr. A.B. and Mr. A. but there was no power to compel the
attendance of either. How matter involving national
security impinged on the issues which the board had to
consider, in view of the explanations for the payment given
by the applicant, was not clearer to us than it was to the
Court of Appeal when it earlier considered an application
for disclosure. Thus it was not alleged that a member of
the Friends [MI6] solicited the applicant to seek a loan of
money from Mr. A. or to discuss business matters with him
- on his own evidence he was asked only to effect an
introduction. It was not necessary for the disciplinary
board to find the existence of corruption on the part of
the applicant, for example in the issue of visas, to
sustain a complaint under DSR 9(2).
...
54. ... We are satisfied that the applicant would, as an
experienced diplomat, have appreciated fully that,
occupying the position he did, he would be regarded by
outsiders as an influential person and that he would be
more likely to be the subject of approaches than officers
holding less obviously prominent positions. ..."
COMPLAINTS
The applicant complains that he has suffered through the use of
public interest immunity certificates in relation to classes of
documents relevant to proceedings concerning his dismissal. He submits
that denial of access to these documents greatly hindered his action
for unfair dismissal and resulted in that action being dismissed by the
industrial tribunal. He invokes Article 6 para. 1 and Article 14 of the
Convention.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)
of the Convention, which provides, so far as relevant, as follows.
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law. ..."
The Commission must determine whether Article 6 para. 1
(Art. 6-1) of the Convention is at all applicable to the proceedings
by which the applicant challenged his dismissal.
The Commission first notes that the issue before the Industrial
Tribunal was the question whether the applicant had been unfairly
dismissed. The proceedings therefore determined, in an immediate and
conclusive manner, whether the termination of the applicant's
employment had been lawful, and whether, if it was not, he was entitled
to compensation. There was accordingly a dispute over a "right" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The next matter for the Commission is whether that "right" was
a "civil" one.
The Commission recalls that in the case of Neigel v. France (Eur.
Court HR, judgment of 17 March 1997, Reports 1997, paras. 43 and 44),
the Court noted that the law of many member States of the Council of
Europe discloses a basic distinction between civil servants and
employees governed by private law, which had led it to hold that
"disputes relating to the recruitment, careers and termination of
service of civil servants are as a general rule outside the scope of
Article 6 para. 1 (Art. 6-1)" (para. 43, with further reference). In
that case, the Court found that the applicant's request for
reinstatement to the permanent post of shorthand typist which she had
previously held related to her "'recruitment', her 'career' and the
'termination of [her] service'. It did not therefore concern a 'civil'
right within the meaning of Article 6 para. 1 (Art. 6-1)."
The Commission, too, has held that the dismissal of a high
ranking soldier was a matter where the State acted in the field of
public law such that no "civil rights" were at issue (see, for example,
E.S. v. Germany, No. 23576/94, Dec. 29.11.95).
It is true that in the present case, the domestic rules make no
special provision for civil servants: although the applicant was an
entry clearance officer, and therefore a member of the diplomatic
staff, he was nevertheless entitled to bring his allegation of unfair
dismissal before an industrial tribunal in the ordinary way. Further,
he could have brought an action for breach of contract had the occasion
arisen.
However, the Commission considers that in the light of the
Court's judgment in the Neigel case, the manner in which domestic law
treats employees of the State cannot be the prime consideration in
determining whether a dispute over a right is "civil": the question is
one for the Convention organs to determine.
Accordingly, the Commission finds that the dispute between the
applicant, a civil servant, and his employer, the State, did not
determine his "civil" rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) therefore does not apply in the
present case.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant also alleges a violation of Article 14 of the
Convention, taken together with Article 6 (Art. 14+6).
The Commission recalls that where Article 1 of Protocol No. 1
(P1-1) proves to be inapplicable, Article 14 (Art. 14) of the
Convention cannot be combined with it (Eur. Court HR, Marckx v. Belgium
judgment of 13 June 1979, Series A no. 31, p. 23, para. 50).
The Commission has found that Article 6 (Art. 6) of the
Convention does not apply to the proceedings in the present case. It
follows that the Commission cannot deal with the complaint under
Article 14 (Art. 14) in combination with it.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy