GULAMHUSSEIN AND TARIQ v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Applications nos. 46538/11 and 3960/12
Bilal GULAMHUSSEIN against the United Kingdom
and Kashif TARIQ against the United Kingdom

The European Court of Human Rights (First Section), sitting on 3 April 2018 as a Committee composed of:

Kristina Pardalos, President,
Ksenija Turković,
Tim Eicke, judges,
and Renata Degener, Deuty Section Registrar,

Having regard to the above applications lodged on 21 July 2011 and 10 January 2012 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the third-party Justice,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Bilal Gulamhussein, is a British, Yemeni national, who was born in 1967 and lives in London.

2. The applicant in the second case, Mr Kashif Tariq, is a British national, who was born in 1979 and lives in London. Both applicants were represented before the Court by Slater & Gordon Lawyers, a law firm based in London.

3. The United Kingdom Government (“the Government”) were represented by their Agents, Mr Paul McKell and Ms Yasmine Ahmed of the Foreign and Commonwealth Office.

A. The circumstances of the cases

4. The facts of the cases, as submitted by the parties, may be summarised as follows.

1. Mr Gulamhussein

5. Mr Gulamhussein was employed by the Home Office as an administrative assistant in the immigration service from 15 November 1999. On 17 January 2000 he obtained the security clearance required for the post. On 1 February 2005 his security clearance was suspended and he was suspended from duty. He was informed that this was because of:

“Association with individuals suspected of involvement and support for terrorism overseas, in particular the insurgency in Iraq.”

6. On 21 March 2005 Mr Gulamhussein was informed that the Home Office was minded to withdraw all levels of security clearance. On 4 May 2005 a decision was taken to withdraw all levels of security clearance. On 11 August 2005 his internal appeal was refused. He subsequently appealed to the Security Vetting Appeal Panel (“SVAP”).

7. On 3 August 2005 Mr Gulamhussein also commenced proceedings in the Employment Tribunal. Those proceedings were stayed awaiting the outcome of his appeal to SVAP and then consolidated with a second set of proceedings (see paragraph 17, below).

8. On 3 February 2006 the Home Office submitted its statement of case to the SVAP. It stated that Mr Gulamhussein:

“... had been identified as a close associate of a network of suspected Islamic extremists who were assessed to be supporting the insurgency in Iraq.”

9. The proceedings before the SVAP comprised an open stage, in which Mr Gulamhussein and his legal representatives could participate, and a closed stage, from which they were excluded. A special advocate was appointed to represent his interests as regards the closed material submitted in the case. However, he could only take instructions from Mr Gulamhussein before he had seen the closed material. After this point, the special advocate was precluded from meeting the applicant and taking instructions from him in relation to it.

10. At a hearing on 20 November 2009 the SVAP heard submissions from Mr Gulamhussein in which he argued that Article 6 applied to proceedings before the SVAP and challenged the procedures before the SVAP as being contrary to Article 6 of the Convention, relying on this Court’s judgment in A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009.

11. On 16 February 2010 the SVAP sent its ruling to Mr Gulamhussein’s solicitors. It held that Article 6 did not apply to proceedings before it because it was only able to make recommendations and not decisions, so the proceedings did not determine Mr Gulamhussein’s rights. It further considered that developments which had taken place in the Court’s case-law as regards the rights of civil servants (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007‑II) were not directly applicable as the present case concerned a special category of employment which required specific security clearance. It referred to the Commission decision in Leander v. Sweden, (no. 9248/81, Commission decision of 10 October 1983, Decisions and Reports 34, p. 78), which dealt specifically with a security vetting procedure, in which the complaint under Article 6 § 1 was found to be inadmissible. In the circumstances it was not strictly necessary to consider whether the requirements of fairness demanded the approach to disclosure set out by this Court in A. and Others. However, the SVAP indicated that even if, contrary to what it had decided, Article 6 did apply to the proceedings, the approach to disclosure set out in A. and Others, cited above, was not required to comply with that Article.

12. On 12 October 2010 the SVAP heard Mr Gulamhussein’s appeal. The proceedings began with an open hearing at which he was legally represented by counsel and by a solicitor. A special advocate was present. No information about the case against Mr Gulamhussein was provided at the open hearing. It is understood that following the open hearing, a closed hearing took place.

13. On 25 January 2011 the SVAP sent its decision to the solicitors for Mr Gulamhussein. It rejected Mr Gulamhussein’s appeal and recommended that the refusal of security clearance should stand. It stated that:

“The Panel has had the opportunity to review in depth the sensitive information on which the decision to withdraw security clearance was based. It is satisfied that the information is reliable and was properly assessed by those involved in the vetting process and provides a sufficient basis for the reasons given to the appellant. In light of this, and with regard to the sensitivity of the post occupied by the appellant, the Panel is satisfied that the decision to withdraw SC clearance was a proper one ...”

14. On 21 April 2011 Mr Gulamhussein lodged judicial review proceedings in respect of the decisions of the SVAP, arguing that they violated Article 6 of the Convention. On 7 July 2011 the judicial review proceedings were stayed pending a judgment of the Supreme Court in Mr Tariq’s case (see paragraph 35 below).

15. On 13 May 2011 the Home Office terminated Mr Gulamhussein’s employment as he did not have security clearance.

16. On 13 July 2011 the Supreme Court dismissed Mr Tariq’s appeal. Mr Gulamhussein’s subsequently withdrew his claim for judicial review.

17. On 4 August 2011 Mr Gulamhussein brought proceedings in the Employment Tribunals claiming direct and indirect race and religious discrimination, and unfair dismissal. These claims are the subject of a separate application to this Court, (see Gulamhussein v. the United Kingdom [dec.] no.18509/13, 3 April 2018).

2. Mr Tariq

18. Mr Tariq started employment with the Home Office as an immigration officer on 21 April 2003, having received the necessary security clearance on 18 February 2003.

19. On 10 August 2006 Mr Tariq’s brother and cousin were arrested during a major counter-terrorism investigation into a suspected plot to mount a terrorist attack on transatlantic flights. On 11 August 2006 inquiries were made to establish whether Mr Tariq was involved with the plot in any way. It was concluded that there was no information to suggest that Mr Tariq had himself been involved in any terrorism plot.

20. On 19 August 2006 Mr Tariq was suspended from duty on basic pay while consideration was given to the withdrawal of his security clearance on national security grounds. On 24 August 2006 Mr Tariq’s brother was released without charge; his cousin was later convicted, in September 2008, of conspiracy to murder.

21. On 30 August 2006 Mr Tariq was advised that the review of his security clearance had been prompted by national security concerns and that these related to his vulnerability. On 20 December 2006 the applicant was advised by letter that his security clearance had been withdrawn. The letter stated:

“The reason for the withdrawal of your security clearance is your close association with individuals suspected of involvement in plans to mount terrorist attacks. Association with such individuals may put you at risk of their attempting to exert undue influence to abuse your position.”

22. Mr Tariq lodged an internal appeal against the decision on 16 January 2007. Mr Tariq was informed by letter dated 9 August 2007 that his appeal had been dismissed.

23. On 4 September 2007 Mr Tariq submitted a further appeal to the SVAP. It was eventually heard and dismissed on 24 November 2010.

24. Meanwhile, on 15 March 2007, Mr Tariq commenced Employment Tribunal proceedings claiming discrimination on grounds of race and/or religion, contrary to the Race Relations Act 1976 and the Employment Equality (Religion and Belief) Regulations 2003.

25. On 10 July 2007 Mr Tariq supplied further particulars of the discrimination alleged. He contended, inter alia, that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or “brainwashing” and had indirectly discriminatory security policies, procedures and methods of investigation. The Home Office in its grounds of resistance dated 6 August 2007 denied this and maintained that it acted throughout to protect national security. It explained that there were concerns in August 2006:

“that [Mr Tariq] could be vulnerable to an approach to determine if terrorist suspects had been flagged to the authorities or to smuggle prohibited items airside.”

26. Mr Tariq was supplied with a bundle of papers (“the open bundle”). The Home Office indicated that a further bundle of papers (“the closed bundle”) would be made available only to the Employment Tribunal and any special advocate appointed.

27. Mr Tariq subsequently sought further disclosure from the Home Office regarding the basis of its security concerns. For the most part, the Home Office responded that for national security reasons it could provide no further information than that contained in the open bundle.

28. The Home Office subsequently made an application to the Employment Tribunal, asking it to order a closed material procedure with a special advocate under the discretionary power conferred by rule 54(2) of the Employment Tribunals Rules of Procedure (see “Relevant domestic law and practice”, below). Representations were heard from both parties on 10 January 2008. The Employment Tribunal concluded, in an order dated 15 February 2008, that it was expedient in the interest of national security to make orders under rule 54 that the whole of the proceedings be in private; that Mr Tariq and his representative be excluded from part of the proceedings when closed evidence and/or documents were being considered; and that the Employment Tribunal consider both open and closed documents and that the Home Office would make available the appropriate closed material to any special advocate appointed.

29. A special advocate was subsequently appointed by the Attorney General.

30. The reasons for the Tribunal’s decision of 15 February 2008 were submitted to the minister in the first instance, in accordance with rule 10 of the ET National Security Rules (see “Relevant domestic law and practice”, below). He directed that one paragraph be abridged and another omitted. As a result, an edited version of the reasons was initially issued to Mr Tariq and his representatives on 15 October 2008. However, on 9 December 2008 the full reasons were released.

31. A full hearing on the merits of the claim was listed for 12‑20 January 2009. At the beginning of the hearing before the Employment Tribunal, Mr Tariq’s counsel submitted that the Tribunal should not consider any document which Mr Tariq had not seen nor hear any witnesses in his absence. On 19 January 2009 the Employment Tribunal ruled, unanimously, that it had the power to admit closed evidence and that it would hear the closed evidence before hearing the open evidence. The reasons for the decision were sent to the parties on 5 March 2009.

32. Mr Tariq appealed against the decision to the Employment Appeals Tribunal (“EAT”). On 16 October 2009 the EAT handed down its judgment. Referring to this Court’s judgment in A. and Others, cited above, the EAT concluded that the rule 54 procedure was not in itself incompatible with Article 6 of the Convention, but it considered that disclosure was required to enable a person to be provided with adequate details of the allegations against him to enable him to give effective instructions to his special advocate (“gisting”).

33. The Home Office and Mr Tariq appealed to the Court of Appeal. The Home Office argued that Article 6 did not require “gisting” in a case of this nature. Mr Tariq challenged the finding that the closed material procedure was compatible with Article 6. The court handed down its judgment on the appeal on 4 May 2010. It held that there was no inherent incompatibility between the closed material procedure and Article 6 of the Convention. However, it upheld the decision of the EAT on the need for disclosure of relevant documents for Mr Tariq to know the case against him. It therefore dismissed both appeals.

34. In the meantime, on 28 April 2011 Mr Tariq was dismissed from his employment on the basis he did not have the security clearance to work anywhere in the Home Office.

35. Both parties appealed to the Supreme Court. The case was heard by a panel of nine judges in January 2011 and judgment was handed down on 13 July 2011. The House, by a majority, upheld the appeal by the Home Office (Lord Kerr dissenting) and dismissed Mr Tariq’s cross-appeal.

36. Lord Mance, with whom the other majority judges broadly agreed, considered that the cases relied on by Mr Tariq, including A. and Others, cited above, in which more stringent disclosure requirements had been found to apply could be distinguished from the present case. He explained that those cases involved detention, control orders and freezing orders, which directly impinged on personal freedom and liberty in a way to which Mr Tariq could not be said to be exposed. In his view the balancing exercise between the public interest in counter terrorism efforts and the right to procedural fairness under Article 5 § 4 of the Convention discussed in A. and Others, cited above, § 217, depended on the nature and weight of the circumstances on each side. He continued:

“... [C]ases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself.”

37. He referred to the decisions in Leander, cited above; Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993, unpublished; and Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010 to support his view that the outcome of the balancing exercise could differ depending on the circumstances. He considered that these three decisions established that the demands of national security could necessitate and justify a system for handling and determining complaints under which an applicant was, for reasons of national security, unable to know the secret material by reference to which his complaint was determined. The critical questions under the Convention were whether the system was necessary and whether it contained sufficient safeguards. He was satisfied that in the civil, as opposed to the criminal, context, a balance might have to be struck between the interests of claimant and defendant if a defendant could only defend itself by relying on material the disclosure of which would damage national security. He therefore found that the closed material procedure, including the role of the special advocate, was lawful.

38. On the question of “gisting”, Lord Mance noted at the outset that the general nature of the Home Office’s case was communicated to Mr Tariq, namely his close association with suspected terrorists and his vulnerability. He continued:

“... Mr Tariq must be able to meet this case on a general basis, in particular, by disclosing and describing his relationship and the nature and extent of his association with those of his relatives suspected and his cousin who was ultimately convicted of terrorist activity; and he has, further, on the basis of, in particular, his questioning in interview also been able to mount a sufficiently arguable case of discrimination to avoid any application to strike out his claim ...”

39. On the closed material procedure, Lord Hope added:

“As for the procedure that the 2004 Regulations provide for, several features indicate that the balance has been struck in the right place. First, there is the fact that, under the procedure provided for by rule 54(2) of Schedule 1 to the Regulations, the decision as to whether closed procedure should be resorted to rests with the tribunal or the employment judge. The fact that the decision is taken by a judicial officer is important. It ensures that it is taken by someone who is both impartial and independent of the executive. Second, there is the fact that, as this is a judicial decision, it will not be taken without hearing argument in open court from both sides. It will be an informed decision, not one taken without proper regard to the interests of the individual. Third, it opens the door to the use of the special advocate. Fourth, it is a decision that can and should be kept under review as the case proceeds: see the last sentence of rule 54(2). Fifth, the special advocate can and should be heard as the process of keeping it under review proceeds.”

40. He emphasised that this had to be balanced against the consequences for national security if this procedure were not to be available to the Tribunal, noting:

“Without it, there would be a stark choice: to conduct the entire defence in open proceedings however damaging that might be to the system of security vetting, and in particular to those who contributed to it in this case; or to concede the case and accept the consequences...”

41. Following the judgment of the Supreme Court, Mr Tariq pursued his claim before the Employment Tribunal. In light of the judgment of the Supreme Court, additional evidence was moved into the open proceedings before the Tribunal, including documents setting out the full reasons for withdrawal of security clearance.

42. After hearing open and closed evidence, the Employment Tribunal gave its reserved judgment on 17 July 2014; reasons were sent to the parties on 6 November 2014. It unanimously dismissed the applicant’s claims.

B. Relevant domestic law and practice

1. The Employment Tribunal and the closed material procedure

43. Employment Tribunals are established under the Employment Tribunals Act 1996 (“the 1996 Act”). Section 7 of the 1996 Act entitles the Secretary of State to make by regulations such provision as appears to him to be necessary or expedient with respect to proceedings before Employment Tribunals. Section 10 of the Act specifically authorises the making, in the interests of national security, of regulations providing for a closed material procedure, either by direction of a minister or by order of the Employment Tribunal, and for the appointment by the Attorney General in that context of a special advocate.

44. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 contain rules made under sections 7 and 10 of the 1996 Act.

45. Schedule 1 contains the Employment Tribunals Rules of Procedure (“the ET Procedure Rules”).

46. Rule 31 of the ET Procedure Rules allows the ET to order any person in its jurisdiction to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a County Court. Rule 32 permits the Tribunal to order any person in its jurisdiction to give evidence, produce documents or information

47. Rule 54(1) permits a minister to direct an Employment Tribunal, if he considers it expedient in the interests of national security, to:

“(a) conduct proceedings in private for all or part of particular Crown employment proceedings;

(b) exclude the claimant from all or part of particular Crown employment proceedings;

(c) exclude the claimant’s representatives from all or part of particular Crown employment proceedings;

(d) take steps to conceal the identity of a particular witness in particular Crown employment proceedings.”

48. Rule 54(2)(a) empowers an Employment Tribunal, by order, if it considers it in the interests of national security, to do anything which can be required by direction to be done under Rule 54(1). Pursuant to Rule 54(2)(b) and (c), an Employment Tribunal may order that any documents not be disclosed to an excluded person; and may take steps to keep secret all or part of the reasons for its judgment. The Employment Tribunal is required to keep under review any order it has made under Rule 54(2).

49. Rule 54(4) provides:

“When exercising its or his functions, a tribunal or Employment Judge shall ensure that information is not disclosed contrary to the interests of national security.”

50. Schedule 2 of the Regulations contains the Employment Tribunals (National Security) Rules of Procedure (“the ET National Security Rules”). Rule 8 provides for the appointment of a special advocate to represent the interests of a claimant excluded from any part of the proceedings. Pursuant to Rule 8(4) the special advocate is not permitted to communicate directly or indirectly with any person (including the excluded person) regarding the written grounds on which the claim is resisted or any proceedings in respect of which the judge sat in secret. However, Rule 8(5) and (6) permits a special advocate to apply to the Tribunal in writing for an order authorising him to seek instructions or otherwise communicate with an excluded person on these matters.

51. Rule 10 of the ET National Security Rules addresses the giving of reasons in national security proceedings. It provides that prior to reasons being sent to any party, a full copy of the reasons shall be sent to the minister. The minister may direct the Employment Tribunal that the full reasons should not be disclosed, in the interests of national security.

2. The role of the special advocate

52. The general role of the special advocate was described by Sedley LJ in Murungaru v. Secretary of State for the Home Department [2008] EWCA 1015 (Civ) as follows:

“The ways in which a special advocate will seek to represent the interests of an appellant are, first, to test by cross-examination, evidence and argument the strength of the case for non-disclosure. Secondly, to the extent that non-disclosure is maintained, the special advocate is to do what he or she can to protect the interests of the appellant, a task which has to be carried out without taking instructions on any aspect of the closed material ... [T]he special advocate represents no-one. 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.”

3. The Security Vetting Appeals Panel

53. The Security Vetting Appeals Panel (SVAP) was established by the then Prime Minister in July 1997. It is a non-departmental public body, ultimately accountable to the Prime Minister and operating under the scrutiny and oversight of the Cabinet Office.

54. It is usually chaired by a senior serving or retired member of the judiciary, and is empowered to hear appeals against refusal or withdrawal of security vetting clearance. All those in the public and private sectors and in the Armed Forces who are subject to security vetting and have exhausted existing appeals mechanisms within their own organisations can appeal to the SVAP.

55. The SVAP may review the merits of the security vetting decision and the procedures which were followed in making that decision, and make recommendations to the relevant Head of Department in light of its findings. It can recommend:

(i) that the decision to refuse or withdraw security clearance should stand;

or

(ii) that security clearance should be granted or restored.

COMPLAINTS

56. Both applicants complained under Article 6 § 1 of the Convention. Mr Gulamhussein complained that the procedure before the Security Vetting Appeal Panel violated his right to a fair hearing.

57. Mr Tariq complained that the procedure before the Employment Tribunal interfered with his rights to an adversarial hearing, to equality of arms, and to a reasoned decision.

THE LAW

58. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

59. Article 6 of the Convention provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The parties’ submissions

60. The Government submitted that Article 6 does not apply to decisions of the SVAP because it is an advisory body and so does not determine civil rights. The government also argued that no “civil right” is determined by the decision to refuse security clearance and even if Article 6 did apply, the decisions taken in these cases were in accordance with the provisions of that Article. Equally, the proceedings before the Employment Tribunal met the standards of Article 6 § 1 for the reasons given by the Supreme Court (see paragraphs 17 to 40 above). Finally, they underlined that the Court in its case law has previously accepted use of the system of special advocates in the case of A. and Others, cited above.

61. Mr Gulamhussein submitted that he had rights under Article 6 to hold an employment position and to have respect for his reputation; those rights were determined by the SVAP. Therefore Article 6 applied to the proceedings before that body. Arguing that the procedures before the SVAP did not comply with Article 6, he advanced similar arguments to those of Mr Tariq concerning the unfairness of the proceedings, use of special advocates and the absence of any strict necessity to conduct secret proceedings in his case.

62. Mr Tariq argued that the use of the closed procedure and special advocates before the Employment Tribunal was fundamentally flawed because he could not instruct the special advocates by reference to any of the closed material, nor could they seek instructions from him on the closed material. Also, special advocates are appointed and instructed by the Government therefore they do not appear to be independent. He argued that secret proceedings should only be held where there is a strict necessity to do so and there was no such necessity in his case; the use of closed proceedings was therefore disproportionate. He also submitted that allowing the Employment Tribunal to see all the evidence does not amount to a counterbalancing procedure, and instead contributes to unfairness.

B. Third party submissions

63. Justice, a law reform and human rights NGO, submitted that neither the involvement of an independent and impartial tribunal nor the use of special advocates can properly be regarded as “counterbalancing measures” sufficient to offset the essential unfairness to the excluded party of closed material proceedings before the Employment Tribunals.

64. Emphasising the fundamental nature of the right to a fair hearing under Article 6, Justice considered that there is no strict necessity to use closed material proceedings, especially where less restrictive procedural measures are available such as use of “public interest immunity” proceedings. Justice proposed that cases which cannot proceed because part of the relevant information cannot be disclosed due to its security sensitivity should be stayed on the basis they are not fairly justiciable.

65. They also underlined that an independent tribunal and the use of special advocates will cause the parties to consider that they have not had a fair hearing and undermine public confidence.

C. The Court’s assessment

1. General principles

(a) Applicability of Article 6 § 1

66. For Article 6 § 1 to be applicable under its “civil” limb, there must be a “dispute” regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017).

67. The Court recalls that a right of access to state secrets is not guaranteed by the Convention (see Ternovskis v. Latvia, no. 33637/02, §§ 9 and 10, 29 April 2014). However, where the revocation of security clearance makes it impossible for an employee to continue an employment relationship and perform their duties in full, the link between the decision to revoke security clearance and the loss of duties and employment is more than tenuous or remote (see Regner, cited above, § 119).

(b) Civil nature of the right

68. Employment disputes arising from the revocation of security clearance tend to arise between civil servants and the State. According to the Court’s case-law, disputes between the State and its civil servants fall in principle within the scope of Article 6 except where two cumulative conditions are fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (see Regner, cited above, § 107).

(c) “Fair hearing”

69. In Regner (cited above, §§ 150-161) the Court examined the principles under this limb of Article 6 where the applicant contested the withdrawal of his security clearance, and neither he nor his lawyer had access to the classified documents or the decision to remove his security clearance, in so far as it was based on the classified documents.

70. The Court had regard to the proceedings as a whole, to determine whether the restrictions on the adversarial and equality-of-arms principles, were sufficiently counterbalanced by other safeguards.

71. Recalling that the rights under Article 6 § 1 are not absolute and that the Contracting states enjoy a margin of appreciation in this area, the Court underlined that the right to disclosure of relevant evidence is not an absolute right either. In the criminal context the Court has found that competing interests such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime must be weighed against the rights of the party to the proceedings (see Regner, cited above, § 148). In the context of the civil proceedings the Court considered that the principles under Article 6 § 1 were satisfied where the domestic courts had the necessary independence and impartiality; had unlimited access to all the classified documents which justified the decision; were empowered to assess the merits of the decision revoking security clearance and to quash, where applicable such a decision if it is arbitrary (see Regner, cited above, § 152). The Court also examined whether the domestic courts duly exercised the powers of scrutiny available to them, and whether their application of a restricted procedure for reasons of security appeared arbitrary or manifestly unreasonable (see §§ 156 and 159).

72. Finally, the Court underlined the desirability for the domestic courts to explain, if only summarily, the extent of the review they had carried out and the accusations against the applicant (see § 160).

(d) Use of Special Advocates

73. In I.R. and G.T. v. the United Kingdom ([dec.] nos. 14876/12 and 63339/12, 28 January 2014) the Court was satisfied that the use of special advocates in closed proceedings before the Special Immigration Appeals Commission (SIAC) provided sufficient guarantees under Article 8 alone and taken with Article 13 of the Convention (§ 65).

74. In its decision, the Court had regard to the independence of SIAC; the fact that SIAC sees all the evidence upon which the Secretary of State’s decision is based; and is competent to reject the Secretary of State’s decision. It considered that the use of special advocates also provides some form of – appropriately limited - adversarial proceedings on the use of classified information.

75. The Court noted the criticism made of the use of special advocates in A. and Others, cited above, in the context of Article 5 § 4. It contrasted the nature of the safeguards available under that article and in a criminal context with the procedural guarantees needed under Article 8 (see I.R. and G.T., cited above, § 61).

2. Application of the general principles to the present case

76. At the outset it should be noted that whilst both applicants complained about the use of the special advocate procedure, the two cases are not identical. Mr Gulamhussein focussed his complaint on the proceedings before the SVAP, and the parties disagreed about whether Article 6 applied to those proceedings. The Government argued that it did not, considering that SVAP’s processes were part of the internal decision making process of the State and that its recommendations were not “directly decisive for the right in question”.

77. Mr Tariq focussed his complaint on the proceedings before the Employment Tribunal. The Government accepted that Article 6 applied to those proceedings.

(a) Mr Gulamhussein’s proceedings before the Security Vetting Appeals Panel

78. The Court notes that the parties disputed whether any “civil right” is determined by the decision to refuse security clearance. In this connection the Court observes in light of its case law (see paragraph 67, above), that the link between the decision to revoke Mr Gulamhussein’s security clearance and his loss of duties and employment was more than tenuous or remote (see paragraph 15, above). However, as the applicant’s complaint is manifestly ill-founded for the reasons set out below, there is no need to come to any final conclusion on this point.

79. In respect of the SVAP, the Court considers that Mr Gulamhussein’s argument does not assist him. If he were correct to say that the SVAP’s recommendations are decisive, then Article 6 would be applicable to those proceedings. However, this conclusion would also suggest that the SVAP is empowered to assess the merits of the decision revoking security clearance and to quash, where applicable such a decision if it is arbitrary (see Regner, cited above, § 152). In so far as it considers that the use of the special advocate procedure provides an adequate safeguard in the present context (see paragraphs 84-85, below) the Court considers that the other elements set out in Regner are also fulfilled by the SVAP (see also paragraph 97 below). Therefore, the result of accepting either the Government’s or the applicant’s submission would be that Mr Gulamhussein’s complaint is inadmissible, albeit for different reasons.

80. However, whilst observing that the above analysis demonstrates that the Court considers the procedural safeguards before the SVAP to have been of a high standard, it agrees with the Government that Article 6 did not apply to the proceedings before the SVAP.

81. Given that the SVAP is staffed by senior members of the judiciary and has access to the same evidence under similar procedural rules to the domestic courts, the Court acknowledges that its recommendations must be highly persuasive. However, this does not amount to their being “directly decisive”. It recalls in this connection that the SVAP’s recommendation does not have any particular consequence; it makes its recommendation to the relevant Head of Department who then takes the final decision concerning security clearance. It is also clear from the SVAP’s working methods and its conclusion in the present case that it may only make recommendations (see paragraph 55). Therefore the SVAP was not able to take a decision that would be “directly decisive for the right in question” and so Article 6 did not apply to the proceedings before it.

(b) Mr Tariq’s proceedings before the Employment Tribunal

82. Mr Tariq did not appeal the decision of the Employment Tribunal. Therefore arguably, he did not provide the domestic courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 § 1 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. However, the government did not, as required by rule 55 of the Court’s Rules of Court, raise any argument in their written observations on admissibility to the effect that his claim was inadmissible due to his failure to exhaust domestic remedies (see Mooren v. Germany [GC], no. 11364/03, § 57, 9 July 2009). The Court also notes that the applicant did pursue his interlocutory claim concerning the substantive points of his application to the Supreme Court. In any event, there is no need to examine this question further, as his claim is manifestly ill‑founded, for the reasons set out below.

83. The gravamen of Mr Tariq’s complaint is that he was unable to challenge the decision to withdraw his security clearance because the evidence against him was classified. The use of special advocates in closed proceedings could not counterbalance the unfairness to him in the proceedings before the Employment Tribunal. Relying on A. and Others, cited above, he submitted that special advocates should only be used in situations of “strict necessity”, and his case was not such a situation. Also, he was entitled to know the “gist” of the case against him.

84. The Supreme Court found that this Court’s criticisms of the special advocate procedure in A. and Others, cited above, were specific to their context and could not automatically be applied in the context of Article 6 in its civil limb. The Supreme Court highlighted that in the civil context, a balance might have to be struck between the interests of claimant and defendant (see paragraph 35 above). This Court has come to the same conclusion for similar reasons in the context of Articles 6 and 8 (see, respectively Regner, cited above, § 148, and I.R. and G.T., cited above, § 61). Accordingly, it does not accept the applicant’s submissions that this Court’s findings in A. and Others, cited above, mean that in the present context, the use of closed material proceedings and special advocates should only be permissible in situations of “strict necessity” or that it is invariably essential for someone to know the “gist” of the case against them.

85. As to Mr Tariq’s submissions criticising the general functioning of the special advocate system, the Court has previously accepted that the special advocate provides an important, additional safeguard through questioning the State’s witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure system (see A. and Others, cited above, §220 and I.R. and G.T., cited above, § 63). The applicant has not submitted any arguments which would cause the Court to call that conclusion into question.

86. The Court recalls that the rights deriving from the principles of Article 6 § 1 are not absolute rights, and the entitlement to disclosure of relevant evidence also not absolute. However, only measures restricting the rights of a party to the proceedings which do not affect the very essence of those rights are permissible under Article 6 § 1. For that to be the case, any difficulties caused to the applicant party by a limitation of his or her rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Regner, cited above, § 148).

87. At the outset, the Court observes that the restrictions imposed on the proceedings brought by the applicant were due to the fact that the documents in the closed proceedings were not available to him or his lawyer. The Court will therefore consider whether the limitation identified was sufficiently counterbalanced. In doing so, the Court will have regard to the proceedings considered as a whole (see Regner, cited above, § 151). It will also take into account the criteria identified in Regner, cited above, § 152, as being necessary to satisfy the principles of Article 6 § 1, at the same time noting that for the reasons set out below (see paragraph 88), the restrictions on the proceedings in Mr Tariq’s case were fewer than those considered in Regner.

88. First, the applicant was able to know the essence of the decision revoking his security clearance, even though it was based on classified information (see paragraphs 21 and 25). Indeed, the Supreme Court found that he was able to meet the case against him in general terms (see paragraph 38, above). Further, and again unlike the applicant in Regner, arguments were made on the applicant’s behalf on the classified evidence by the special advocate acting in closed proceedings.

89. Turning then to the criteria identified in Regner, the Court observes first that the parties accepted that the Employment Tribunal had the necessary independence and impartiality.

90. Second the Employment Tribunal had unlimited access to all the classified documents which justified their decisions, as indicated in its rules of procedure (see paragraph 46). In this connection the Supreme Court in its judgment provided guidance on the use of closed procedures which emphasise the importance of the scope of the domestic court’s review as follows:

“67. Clearly it is a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it will lead to a claimant not knowing of such allegations in detail. As the Home Office acknowledges, it is an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.”

91. Third, as to the question of whether the Employment Tribunal duly exercised the powers of scrutiny available to it, the Court notes that the Employment Tribunal held a number of hearings allowing submissions from the parties on the appropriateness of using closed proceedings and the degree to which evidence could only be disclosed in the closed proceedings, which it considered in detail (see paragraph 28 above). Those proceedings culminated in an interlocutory appeal to the Supreme Court which concluded that use of the closed proceedings was appropriate and provided guidance to the domestic courts (see paragraph 90 above). That guidance included the indication that the use of closed proceedings should be kept under review. The Court also notes that following the judgment of the Supreme Court, additional information was disclosed in the proceedings (see paragraph 41 above). Accordingly, it appears that the Employment Tribunal duly exercised the powers of scrutiny available to it.

92. Fourth, as to whether the use of closed proceedings by the Employment Tribunal was in any way arbitrary or manifestly unreasonable, the Court notes that the Employment Tribunal applied the closed proceedings on the basis that it was “expedient in the interest of national security” (see paragraph 28 above). It this connection it observes that the Employment Tribunal reviewed in detail the justification provided for revoking the security clearance and the steps taken by the Home Office prior to and after the removal of security clearance, and analysed the decisions of the officials concerned. Rejecting the arguments made by the applicant in those proceedings that there were fundamental defects in that process the Tribunal in its final judgment stated:

“43. We cannot agree with this characterisation of the evidence. The plot that had been uncovered was one that posed a grave threat to national security. A prime mover was a relative of the Claimant. His own brother was arrested, although not charged. The relationship with Mr Khan was a proper area of enquiry ...

...

47 ... Looking at the entire chronology, we can find no valid criticism of the procedure used, the decision making or the rationale adopted ... We conclude that the Respondent acted reasonably in treating the substantial reason, namely the concerns of national security, as a sufficient reason for dismissal in all the circumstances...”

93. In light of the above, the Court considers that the decision to use closed proceedings was fully understandable and there is nothing to suggest that the use of such proceedings was in any way arbitrary or manifestly unreasonable.

94. Fifth and finally, the Court notes that the Employment Tribunal was empowered to assess the merits of the decision revoking security clearance and to quash, where applicable such a decision if it is arbitrary. It may be noted however that the Employment Tribunal did not direct its examination to the merits of the decision revoking security clearance. Indeed, this is not what was sought by Mr Tariq, who did not complain about his proceedings before the SVAP, or bring a judicial review of the decision to withdraw his security clearance but instead pursued a claim before the Employment Tribunal claiming discrimination on grounds of race and/or religion.

95. However, in view of the fact that his security clearance was a sine qua non for his employment (see paragraph 34 above), and that the basis of his claim before the Employment Tribunal was the discriminatory nature of the decision to revoke that security clearance, the Court considers that in the circumstances of the present case, those proceedings can be considered to have assessed the merits of the decision revoking security clearance in its main aspects.

96. In light of the above the Court concludes that all the elements identified in Regner, cited above, were satisfied in the proceedings before the Employment Tribunal, which therefore accorded with the principles under Article 6 § 1.

97. In addition, the Court notes that both applicants were aware in general terms of the content of the decisions taken to revoke their security clearance; the domestic bodies gave reasons for their decisions to use closed evidence and for their conclusions in substance. The domestic courts also summarised how much open and closed evidence they had seen; giving reasons for their decisions in the open proceedings and explaining how those reasons were affected by the material in the closed proceedings. This latter element was one that the Court identified as “desirable” in Regner, cited above, (see paragraph 67 above).

98. In light of the above, the Court considers that the applicants’ complaints are manifestly ill-founded.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 26 April 2018.

              Renata DegenerKristina Pardalos
              Deputy RegistrarPresident

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