Home Office (Appellant) v XX (Respondent) [2011] UKSC 35
- 2011
- United Kingdom
Topics
Public securityLegal bases
European Convention on Human Rights United Kingdom: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 United Kingdom: Employment Tribunals Act 1996Courts
The Supreme Court (UKSC), United KingdomLaws
Right to a fair trialFacts
Mr. XX is a British citizen employed within the Home Office as an immigration officer. In 2006 his employment was suspended, and his security clearance was withdrawn following an investigation into a suspected plotted terrorist attack on transatlantic flights, for which his brother and cousin were arrested. His cousin was later convicted in 2008 of various offenses in relation to the plot. No information suggested that the applicant was linked to the plot. Mr. XX commenced proceedings in an Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion. He alleged that the Home Office had relied on stereotypical assumptions about him being a Muslim and an individual of Pakistani origin and as such susceptible to undue influence. In their defence, the Home Office said the decisions made were based on the appellants association with the individuals involved in the investigation; that they could use this association to exert influence on the appellant to abuse his position. Following this decision, the Employment Tribunal made an order for a closed material procedure – for the applicant to be excluded from the proceedings when considering any materials as a matter of national security. The applicant appealed against this decision. The appeal was dismissed by the Employment Appeal Tribunal and the Court of Appeal. However, the Court of Appeal declared that Article 6 of the European Convention on Human Rights required Mr. XX “to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively”. The Home Office appealed to the Supreme Court against this decision and Mr. XX cross-appealed against the conclusion that a closed material procedure was permissible.
Legal grounds
Section 10(6) of the Employment Tribunals Act 1996 (adopting closed material procedure in interest of national security); Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (adoption of closed material procedure); Article 6 of the ECHR.
Findings
The Supreme Court dismissed Mr. XX’s appeal on a majority of 8-1, on the grounds that a closed material procedure is compatible with Article 6 of the ECHR and European Union Law. According to the Court, “the system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimant’s interests. For these reasons the use of the closed material procedure in this case was lawful.”