The Administrative Court’s (as yet unreported) judgment in R (on the application of N) v a Local Authority in December 2010 saw the quashing of a decision to withdraw a licence to be in contact with children. The case concerned the familiar public law principles of judicial review and human rights, but from an information law perspective, the point of interests is this: in reaching its decision to withdraw the individual’s licence, the local authority compiled information on that individual, including the allegations made against him (namely, that he was a paedophile with a history of sexual offences) as well as its meetings with the individual. Ockleton J not only overturned the local authority’s decision, but also directed it to keep a copy of the judgment with its records relating to the matter, so that its records on this individual were full and accurate. Otherwise, he ruled, the local authority’s file on this individual was potentially misleading to anyone subsequently accessing it.
The European Court of Human Rights handed down a significant judgment today in Kennedy v. UK (application no. 26839/05).
A warrant under s. 8(1) of the Regulation of Investigatory Powers Act 2000 permits the interception of the communications of a particular person (or particular set of premises). Mr Kennedy sought to challenge the Art. 8 compatibility of the s. 8(1) warrant regime, and in particular sought to criticise its foreseeability. The Court unanimously rejected his challenge and, in a relatively detailed judgment, upheld the compatibility of the domestic law.
The case is also interesting for the Court’s analysis of Mr Kennedy’s Art. 6 complaint. Mr Kennedy had brought domestic proceedings in the Investigatory Powers Tribunal, which had resulted in two public decisions on legal issues, together with a final ruling that no determination had been made in his favour (i.e. that there had either been no interception, or that any interception that had taken place had been lawful). In Strasbourg, Mr Kennedy complained that the restrictive procedures of the Tribunal had breached Art. 6. In its judgment, the Court avoided deciding whether Art. 6 applied to such proceedings, but went on to confirm that if Art. 6 did apply then the Tribunal’s procedures satisfied its requirements.
On Tuesday of this week, the Court of Appeal handed down three important judgments on the question of how, in the context of civil litigation, courts should approach cases where the State is seeking to advance part of its case through a closed material procedure. The closed material procedure effectively operates to allow the State to put evidence and arguments before the court in closed session, which is to say in the absence of the other parties and their representatives. The excluded parties and their representatives will not be given access to any closed evidence or arguments. The procedure typically entails arrangements whereby the excluded parties will be represented in the closed session by a special advocate. All three appeals were decided by the same panel of judges, namely: Lord Neuberger MR, Maurice Kay LJ, Sullivan LJ. The following is a summary of the judgments:
HOME OFFICE v TARIQ  EWCA Civ 462 – T had been employed by the Home office as an immigration officer. T’s brother and cousin had been arrested in relation to alleged terrorist offences. The cousin was convicted and the brother released without charge. T was suspended from duty due to national security concerns. T, who was a Muslim of Asian/Pakistani origin, went on to bring claims in the employment tribunal of race and religious discrimination. The tribunal held that it had statutory powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to hear certain evidence relating to the claims in closed session, albeit that T would be represented in that session by a special advocate. The Employment Appeal Tribunal held that the decision to hear evidence in closed session was not unlawful but that T and his representatives should be informed of the gist of the closed material which was to be heard in the closed session. The Secretary of State appealed the decision that T should be told the gist of the closed material. T cross-appealed on the grounds that the convening of a closed session was itself unlawful under the European Directives from which his right to claim discrimination was derived and, further, under Art. 6 ECHR. The Court of Appeal, upholding the EAT’s judgment, held that: (a) the closed materials procedure, which entailed the use of a special advocate to represent T’s interests, did not contravene either the Directives or Art. 6 of the Convention; and (b) following Secretary of State for the Home Department v AF (No.3)  UKHL 28,  3 WLR 74, T was entitled to know the gist of the closed material so that he could fairly and effectively pursue his claims.
BANK MELLAT v HM TREASURY  EWCA Civ 483 – B was a bank which had been made subject to a direction under the Financial Restrictions (Iran) Order 2009. The order had been made pursuant to the Counter-Terrorism Act 2008. The Direction prohibited all persons operating in the financial sector from entering or participating in any transaction or business relationship with B. The basis of the Direction was that M ‘continued to engage in a pattern of conduct which supported and facilitated Iran’s proliferation-sensitive activities, that nuclear-related companies received funds from B, and that a company with alleged connections with other nuclear-related companies conducted business using B’. B sought to challenge the Direction under CPR 79. CPR 79 contains provisions allowing for a closed materials procedure to be adopted. T wished to treat certain evidence as closed evidence under the closed material procedure. B challenged T’s attempt to withhold the closed evidence from it. The High Court held that T was obliged under Art 6 of the Convention to afford B sufficient disclosure to enable it to give effective instructions about the essential allegations made against it. HELD: The Court of Appeal held that, where disclosure of evidence might be contrary to the public interest, Art 6 permitted a balancing exercise to be undertaken. However, in line with Tariq v Home Office, B should be given the gist of the information being withheld so that he could give effective instructions in relation to the case being put against him. The information provided to B had to be sufficient to enable B to give sufficient instructions not merely to deny, but actually to refute the essential allegations relied on by T.
BISHER AL RAWI & 5 ORS v SECURITY SERVICE & Ors  EWCA Civ 482 – The appellants (X) appealed against a decision of the High Court that, as a matter of principle, it was open to the court to order a closed material procedure in the context of a civil claim for damages. X were former Guantanamo detainees. They had made various claims against the respondents (Y) including claims for damages for false imprisonment, trespass to the person, torture and negligence. Y invited the court to apply a closed material procedure which would enable them to rely on pleadings and evidence which would not be disclosed to X or their representatives, albeit that it would be disclosed to a special advocate representing X’s interests. Y argued that this approach was necessary in the public interest. X’s position was that it was not open to Y to use a closed material procedure and that its only option was to rely on the public interest immunity (PII) procedure. Under that procedure, any evidence which was subject to PII would be excluded altogether from the litigation process, which meant that neither party could rely upon it. Y argued that the closed material approach was preferable because the court would be more likely to arrive at a fair result if it could see the relevant material. HELD: The Court of Appeal, overturning the High Court’s judgment, held that it was not open to the court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. The Court commented obiter that different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations did not apply in the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no “triangulation of interests” would be involved.
What these judgments show collectively is just how difficult it is to strike a fair balance between the important public interest in protecting the basic rights of individuals to know what case is being put against them and the need to avoid disclosures which would themselves damage the public interest, for example, by jeopardizing national security. They also confirm that a distinction is to be drawn between those cases where there is a specific statutory or Parliamentary authority for a closed material procedure to be adopted (Tariq and Bank Mellat) and those cases where no such authority exists (Al Rawi). In respect of the latter cases, the Court of Appeal has effectively held that: (a) in general, the only procedural course available to the State is to make an application for evidence to be excluded under the PII procedure; although (b) there may be cases where exceptionally third party interests or the public interest warrant a different approach being adopted.
In an earlier post this month on the Al Rawi litigation, I reflected upon recent developments concerning the use of secret evidence in civil litigation. Yesterday, the House of Lords and House of Commons Joint Committee on Human Rights published its latest report on the human rights implications of UK counter-terrorism measures: Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In. In its report, the JCHR expressed serious concerns about the growth in the use of secret evidence procedures within the judicial system and the Government’s apparent failure to apply the restrictive principles outlined in the Article 6 cases of A v UK  49 EHRR and Secretary of State v AF  UKHL 28. The following paragraphs of the report are particularly worthy of note:
62. The Government’s response to the A and AF judgments suggest that it considers itself free to press on with the use of secret evidence and special advocates in the other contexts in which they are used, without pausing to take stock of the wider implications of these significant rulings. Although the Government says that it is considering whether changes to the Parole Board’s procedures are needed, we have not seen any evidence to suggest that the Government has in fact considered the implications of the judgment of the European Court of Human Rights in A v UK for all the other contexts in which special advocates and secret evidence are used. We recommend that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgments of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing as interpreted in those judgments, and to report to Parliament on the outcome of that review.
64. We are not satisfied that the Minister’s answer meets the special advocates’ concerns about the difficulty of distilling the relevant principles from closed judgments, or about the necessary accessibility of the law. We recommend that the Government include arrangements for law reporting in the review of the use of secret evidence that we have recommended above.
Employment vetting is of great interest to information lawyers. Any vetting scheme depends on the systematic sharing of information about individuals. Such schemes will always give rise to difficult questions about fairness. An important recent decision of the Court of Appeal explores some of these issues, in the context of article 6 of the European Convention on Human Rights (ECHR).
Governors of X School v Queen on the application of G  EWCA 1 concerned a teaching assistant at X school (“the employee”), who was accused of having sexual contact with a 15 year old boy on work experience at the school. The school governors conducted a disciplinary hearing, and dismissed the employee. The employee brought judicial review proceedings to challenge the governors’ decisions not to allow him legal representation at the disciplinary hearing or at a forthcoming appeal hearing. He argued that these decisions violated his right to a fair hearing, under article 6 of the European Convention on Human Rights (ECHR). The employee’s claim succeeded at first instance. The Court of Appeal upheld that decision, rejecting the governors’ appeal.
The basis of the employee’s claim was that an adverse finding in the disciplinary proceedings would expose him to statutory procedures that would prevent him from working with children. The Court of Appeal summarised the relevant procedures, by reference to three phases in the employment vetting regime: (i) the “list 99” procedure, under section 142 of the Education Act 2002, prohibiting certain individuals from working in education; (ii) the transitional regime, under the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”), whereby after 20th January 2009 certain cases under section 142 were referred to the new Independent Safeguarding Authority (ISA); and (iii) the substantive regime under the 2006 Act, whereby list 99 was replaced with effect from 12th October 2009 by the “children’s barred list”, established under section 2(1)(a) of the 2006 Act.
The Court of Appeal considered whether the school disciplinary proceedings were a determinant of the employee’s civil right to practise his profession as a teaching assistant, so as to engage article 6 of the ECHR. Dismissal by the governors would not itself preclude the employee from practising his profession. A decision to include the employee on a statutory barring list would, however, have that effect. The question was whether the disciplinary proceedings had a substantial influence or effect on the barring proceedings, and therefore on the determination of the employee’s civil right to practise his profession. The answer was yes: therefore, the disciplinary proceedings engaged article 6.
The Court went on to consider whether article 6 required that the employee should be entitled to legal representation in the disciplinary proceedings. Article 6 did not entail a right to legal representation in every case: but in this case there was such a right, given the seriousness of what was at stake for the employee, and given the potential for legal representation to make a difference to the outcome.
The above analysis assumed that the case was to be treated as civil rather than criminal for the purposes of article 6. The employee argued that the case ought to be treated as criminal: given its other conclusions, the Court of Appeal did not need to decide this point.
The governors were a public authority under the Human Rights Act 1998, and therefore subject to the duty under section 6(1) of that Act, not to act incompatibly with Convention rights. The implications of the Court of Appeal’s decisions for private sector employers are uncertain. Such employers are not subject to the section 6(1) duty, and are not susceptible to judicial review. But in an unfair dismissal claim against a private sector employer, the employee might well rely on Governors of X School in order to argue that a failure to permit legal representation would render any dismissal unfair.
The case is of very considerable importance. It illustrates the wide consequences of the vetting scheme introduced by the 2006 Act. The scheme will give rise to a host of difficult legal issues: the Courts are only just beginning to explore them.
Yesterday, the High Court handed down a controversial judgment on the use of ‘the closed material procedure’ (CMP) in civil litigation: Al-Rawi & Ors v The Security Service & Ors (judge – Silber J). The background to the judgment is that a number of individuals who had been detained at Guantanamo Bay had brought claims for damages against the defendants on the basis that they had caused or contributed to the claimants’ unlawful detention and ill-treatment by foreign governments. A preliminary issue then arose in these cases as to whether the defendants could put evidence before the court using the CMP. The CMP, in effect, allows defendants to put documents in evidence before the court whilst at the same time withholding them from the claimants. The only way in which the claimants have any say on the closed material is through the use of special advocates appointed to act on their behalf. However, the role of special advocates is heavily circumscribed, not least because they cannot convey to their clients the content of the closed material.
The CMP has formerly been used in the context of deportation appeals heard by the Special Immigration Appeals Commission (SIAC). However, the CMP has not previously been a feature of civil litigation. Instead, in the context of civil litigation, if the government was concerned that the disclosure of particular information would be contrary to the public interest, the best it could hope for was to rely on the public interest immunity (PII) procedure. The crucial difference between the PII procedure and the CMP is that the former procedure operates so as to ensure that the PII material is not put before the court at all, whereas the latter procedure allows the government to put the closed material before the judge whilst at the same time not disclosing that material to the other side. Thus, there is an inherent asymmetry present in the CMP which is not present in the PII procedure.
In a controversial judgment, Silber J decided as a preliminary issue that use of the CMP was permissible in a civil claim for damages, albeit only in exceptional cases. In reaching this conclusion, Silber J rejected arguments that the High Court had no jurisdiction to permit the use of the CMP; that use of the CMP was inconsistent with the requirements of the CPR and that it was otherwise at odds with the established PII procedure. It is highly likely that this judgment will go on appeal. 11KBW’s Karen Steyn acted on behalf of the defendants.
Information law overlaps with employment law in two main ways, in relation to employment vetting and employment monitoring. Broadly speaking vetting is about the enquiries that an employer can make before recruitment, and monitoring is about checking on the performance and behavior of existing employees.
The legal framework for employment vetting is changing radically, as the Safeguarding Vulnerable Groups Act 2006 is brought into force. The Act implements the Bichard Report, which followed an inquiry into the notorious 2002 Soham murders. It establishes a new vetting and barring scheme for those working with children or vulnerable adults, to be operated by a statutory body called the Independent Safeguarding Authority (ISA).
With effect from 20th January 2009, the ISA was given responsibility for decision-making under the 3 existing employment barring lists: the education list, (popularly known as “List 99”), the PoCA list (for those working with children) and the PoVa list (for those working with vulnerable adults). As from 12th October 2009 these 3 lists will be replaced by two new lists introduced by section 2 of the 2006 Act and maintained by the ISA – the children’s barred list and the adults’ barred list. Employers, social services and professional regulators will have a duty to share information with the ISA. From July 2010, new entrants to roles working with vulnerable groups and those switching jobs within the sector will be able to register with the ISA, and employers will be able to check registration status online. The legal requirement for new entrants and those moving jobs to register with the ISA, and for employers to check on their status, will come into force by November 2010. The intention is to bring the whole of the existing workforce into the scheme by 2015.
I will be delivering a paper about employment vetting at the Local Government Group conference on 29th April, and the paper will be available on 11KBW’s website after the conference. For consideration of whether the existing PoVA list is compatible with articles 6 and 8 of the European Convention on Human Rights, see R (ota Wright) v Secretary of State  UKHL 3. For the timetable for implementing the 2006 Act, see here and here.