Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   5864/09

 

 

 

CLAIMANT:                      XY

 

 

RESPONDENT:                Police Service of Northern Ireland

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

 

(1)            The Chairman makes an Order, at his own initiative, without objection, pursuant to Rule 59 and 54(4) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to omit from the Register and/or to delete from the Register any material likely to lead any member of the public to identify the claimant as the claimant to these proceedings; and also to identify the claimant’s ‘McKenzie Friend’ at the hearing of this         pre-hearing review.

 

(2)            Following an application by the respondent, pursuant to Rule 54(2)(a) of the said Rules of Procedure contained in Schedule 1 of the said Regulations, the Chairman considers that it is expedient in the interests of national security that an Order be made that the above-entitled proceedings be conducted in private; and it is so ordered. 

 

(3)            The Chairman further considers that, and it is so ordered, it is expedient in the interests of national security that an Order be made pursuant to Rule 54(2)(a) of the Rules of Procedure, that the identity of the witness, D, who appeared on behalf of the respondent at this pre-hearing review be concealed in this decision.

 

(4)            The Chairman considers that it is expedient in the interests of national security, pursuant to Rule 54(2)(c) of the Rules of Procedure, to keep secret part of the reasons for his decision; and it is therefore ordered that this decision will consist, in part, of a closed section and that the said closed section of the decision will be omitted from the Register.

 

Constitution of Tribunal:

Chairman (sitting alone):           Mr N Drennan QC

 

Appearances:

The claimant appeared in person and was unrepresented; but was assisted by C as a ‘McKenzie Friend’.

The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Crown Solicitor’s Office.

 

Reasons

 

1.1           This pre-hearing review was arranged to consider the application of the respondent to determine the following issue, as amended, without objection by the parties:-

 

“Whether the hearing should be conducted in private, pursuant to Rule 54(2)(a) of the Industrial Tribunals Rules of Procedure (‘the Rules of Procedure’) contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Regulations’).”

 

1.2           Given the nature of the issue to be determined by the tribunal, it was agreed that any determination of the said issue would involve “a determination of a person’s civil rights or obligations”; and that, pursuant to Rule 17(2) of the Rules of Procedure, that this issue should therefore be determined at a pre-hearing review and it was so ordered by the tribunal, with the consent of the parties.

 

1.3           In view of the issues to be determined and, in particular, the evidence which was to be given during the course of this hearing, it was agreed that the pre-hearing review itself should be conducted in private, having regard to the terms of the overriding objective and the powers of a Chairman to conduct any hearing in such a manner as he considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings and/or the powers of the Chairman to regulate his own procedure (see further Rule 14(3) and Rule 59(1) of the Rules of Procedure).  In the circumstances, I therefore made the said Order, by consent, to enable the hearing of the pre-hearing review itself to be conducted in private.

 

1.4           Under Rule 54(2)(c) a tribunal or Chairman may, if it or he considers it expedient in the interests of national security, by Order:-

 

“(c)     take steps to keep secret all or part of the reasons for its decision.”

 

As shall be referred to later in this decision, I have considered, in some detail, the phrase ‘expedient in the interests of national security’ when deciding whether I should make an Order to conduct the proceedings in private and/or to conceal the identity of a particular witness; but also to keep secret all or part of the reasons for my decision.  It is sufficient to state that, in light of my conclusions, that it was so expedient to make the said Orders; and I therefore ordered that part of this decision would have to be in ‘closed form’.  For ease of reference, I have segregated the ‘closed’ part of the decision into a ‘separate’ section at Paragraph 4 of this decision.  In making this said Order, to take steps to keep secret part of the reasons for my decision, I also had regard to the terms of Rule 54(4) of the Rules of Procedure, which states as follows:-

 

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

 

1.5     Before issuing my decision in this matter, and having regard to the matters that were the subject-matter of the pre-hearing review, which was held in private, as set out above, the decision itself and having also considered the decision of the Court of Appeal in the case of JR5  v  Department of Agriculture and Rural Development [2007] NICA 19, together with the terms of Rule 54(4) of the Rules of Procedure, as referred to above, I decided, at my own initiative, to make an Order, to which no objection was made by the parties, pursuant to Rule 59 and 54(4) of the Rules of Procedure to omit the claimant’s name, together with her ‘McKenzie Friend’ from the Register and/or to delete from the Register any material likely to lead any member of the public to identify the claimant as the claimant to these proceedings; but also to identify the ‘McKenzie Friend’ of the claimant, at the hearing of this pre-hearing review.  As a consequence the title of the claimant, for the purposes of these proceedings is XY and the claimant’s ‘McKenzie Friend’ is identified as C.

 

1.6     Under Regulation 2(1) of the 2005 Regulations, it is provided:-

 

“’National security proceedings’ means proceedings in relation to which a direction is given under Rule 54(1) of Schedule 1, or an Order is made under Rule 54(2) of that Schedule.”  [Tribunal’s emphasis]

 

As shall be referred to later in this decision, no such direction was given under Rule 54(1) of Schedule1.  However, I did make Orders, as set out in the Decision, under Rule 54(2).  Thus, following the making of the said Orders, these proceedings are therefore now national security proceedings. 

 

1.7     Under Rule 1(1) of the Industrial Tribunals (National Security) Rules of Procedure contained in Schedule 2 of the said Regulations, it is provided:-

 

                    “The Rules in this Schedule only apply to national security proceedings … .”

 

The Rules in Schedule 2 modify the Rules in relation to such proceedings.  Under Rule 1(2) of Schedule 2, if there is a conflict between the Rules in Schedule 2 and Schedule 1, the Rules in Schedule 2 prevail.

 

I considered whether, having made the said Orders and, as a consequence, the said proceedings had now become national security proceedings, it was necessary for me to comply with Rule 10 of Schedule 2 of the Regulations, in relation to the giving of reasons in national security proceedings. 

 

Rule 10(1) of Schedule 2 states:-

 

“This Rule applies to written reasons given under Rule 30 of Schedule 1 for a decision or order made by the tribunal or Chairman in national security proceedings.”

 

In particular, I considered whether it was necessary for the written reasons, for the making of the said Orders, pursuant to Rule 54(2) of Schedule 1, to comply with the provisions of Rule 10 of Schedule 2; and, in particular, required to be sent to the Secretary of State for Northern Ireland for a direction before the decision was issued to the parties. 

 

Mr Coll, on behalf of the respondent, submitted that it was not necessary or appropriate for me to do so; but reminded me of the provisions of Rule 54, referred to above, when issuing the said decision.  The claimant made no submissions on this issue.

 

Having considered the submissions of Mr Coll and the Rules of Procedure, I came to the conclusion it was not necessary for the written reasons, for the making of the said Orders under Rule 54(2) of Schedule 1, to be sent to the Secretary of State for Northern Ireland for a direction, pursuant to Rule 10 of Schedule 2, before the said decision was issued.  I so concluded because, in my judgment, the proceedings did not become national security proceedings unless and until any Order was made under Rule 54(2) of the Rules contained in Schedule 1 of the said Regulations.  It was only upon the making of the Orders, pursuant to Rule 54(2), as set out in the Decision, that these proceedings had now become national security proceedings.

 

I was confirmed in my view by reason of the decision, to which further reference shall be made elsewhere in this decision, of Mr Justice Underhill, in the Employment Appeal Tribunal, in the case of AB  v  Ministry of Defence [UKEAT/0101/09] – where an Order was made, pursuant to Rule 54(2) under the Rules of Procedure in Great Britain.  These rules are in similar terms, on this issue, to the Rules of Procedure which apply in Northern Ireland.  It does not appear from the judgment of Mr Justice Underhill that, before doing so, either the Regional Employment Judge who made the original Order or Mr Justice Underhill, who confirmed the said Order on appeal, considered it necessary to obtain, before issuing their decisions, any direction from the relevant Government Minister.  I note that Mr Justice Underhill adopted the procedure, which I have followed, that part of his decision was in ‘closed form’.

 

1.8     Having heard the evidence called by the respondent, in connection with the respondent’s said application, together with the submissions made by the claimant and the respondent’s representative, I reserved my decision.  As set out elsewhere in this decision, I ordered that the identity of the respondent’s witness at this pre-hearing review be kept secret and identified as D.

 

2.1           Before setting out the findings of fact, which I have made, after considering the evidence which was given, together with the said submissions by the parties, I consider it is appropriate to set out, in some detail, Rule 54 of the Rules of Procedure together with any relevant decisions, which have been made in relation to the proper interpretation of this Rule. 

 

2.2           Rule 54 of the Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, as amended by the Industrial Tribunals (Constitution and Rules of Procedure) (Amendment) (No 2) Regulations (Northern Ireland) 2005, provides, insofar as relevant and material to this application, as follows:-

 

“(1)     The Secretary of State (whether or not he is a party to the proceedings) may, if he considers it expedient in the interests of national security, direct a tribunal or Chairman by notice to the secretary to –

 

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

 

...

 

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

 

(2)          A tribunal or Chairman may, if it or he considers it expedient in the interests of national security, by order –

 

(a)      in relation to particular proceedings before it anything which can be required by direction to be done in relation to particular Crown employment proceedings under Paragraph (1);

 

…

 

(c)      take steps to keep secret all or part of the reasons for its decision.

 

and the tribunal or Chairman (as the case may be) shall keep under review any order it or he has made under this paragraph.

 

…

 

(4)     When exercising its or his functions, a tribunal or Chairman shall ensure that information is not disclosed contrary to the interests of national security.”

 

          Under Rule 54(1) amongst the directions that can be made are:-

 

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

 

                    …

 

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

 

2.3     Prior to the said amendment of the said Rule, Rule 54(2)(a) had originally stated:-

 

“Do anything which can be required by direction to be done under Paragraph (1).”

 

I concluded, with which conclusion Mr Coll agreed, that the said amendment to Rule 54(2)(a) now provides clarification that the power, conferred by that Sub-section, applies to any proceedings where a national security issue is at stake and not just Crown employment proceedings. 

 

2.4     Under Article 23(2) of the Industrial Tribunals (Northern Ireland) Order 1996 ‘crown employment’ means employment under or for the purposes of a Government Department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision. 

 

          In the absence of the said amendment, providing the said clarification as set out above, it would have been necessary therefore for me to consider further, whether these proceedings were in the nature of Crown employment proceedings, as defined.  Mr Coll submitted, if it had been necessary for him to do so, these proceedings were Crown employment proceedings, by reason of the statutory provisions governing the respondent and the exercise of its functions.  In light of my conclusion, as set out above, it was not necessary for me to consider this issue further.

 

2.5     As far as I am aware there have been no relevant decisions, in this jurisdiction, in relation to the proper interpretation of Rule 54 of the Rules of Procedure.  However, Mr Justice Underhill, President of the Employment Appeal Tribunal, has given some guidance in his recent decision in the case of AB  v  Ministry of Defence, to which I have referred above.  In the circumstances, I consider this decision highly persuasive; but it is not a decision which is binding upon me.

 

It would appear, from the judgment of Mr Justice Underhill, before making his Order, the Regional Employment Judge had had very limited evidence before him.  Indeed, the Order, which was made by the Regional Employment Judge, appears to have been made, pursuant to Rule 54(2), without any evidence from any Minister and/or relevant witness or any written submissions on behalf of the respondent and the Regional Employment Judge relied, in particular, on oral submissions made to him by the respondent’s representative.  However, I note that, by the time of the appeal hearing before Mr Justice Underhill, there was a witness statement from a solicitor on behalf of the respondent, to which the claimant put in a witness statement in response, and further oral submissions were made by the representatives.  This confirmed to me the correctness of my approach, at this hearing, which was not to allow the respondent’s representative, as he had originally sought to do, to rely merely on oral submissions by the parties; but to require him to call oral evidence from relevant person(s).  In light of the foregoing, such oral evidence was called by the respondent. 

 

It was, in the above context, that I am of the opinion Mr Justice Underhill, in the AB case, came to suggest, at least in part, that it would have been preferable for the Regional Employment Judge to have limited any directions under Rule 54(2) to matters that were uncontroversial and/or had to be dealt with at that early stage and require the parties to re-visit the question of whether the substantive hearing should be conducted in private at a further Case Management Discussion, as the case continued and witness statements were exchanged and the full extent of any sensitive evidence would have been capable of being established with some more precision. 

 

I interpose here to make clear that, unlike in Great Britain, whether witness statements are ordered in this jurisdiction depends on the particular facts of each case; and it is by no means an Order which is made as a matter of normal practice.  In this particular case, I was satisfied that I was in a position, in light of the oral evidence which was given during the course of this pre-hearing review, together with the submissions of the parties, to make the Orders, which I made under Rule 54(2) at this stage of the proceedings; although the proceedings had not progressed much further than the presentation of the claimant’s claim form and the respondent’s response form and the interlocutory process was at a very early stage – to which I shall make further reference later in this decision. 

 

In this context, it was apparent that the claimant, who did not object to the making of the Order, was fully aware of the national security issues relevant to the respondent’s application.  No doubt, in other particular cases, the somewhat more limited procedure suggested by Mr Justice Underhill in Paragraph 11 of his judgment in the AB case may be more appropriate to be followed.

 

In deciding to proceed to consider the application, in full, at this stage and not to confine myself to giving limited directions, I took careful note of the guidance of the Court of Appeal in the analogous context of disclosure of sensitive documentary material in Coles  v  Barracks [2007] ICR 60.  In that case, the Court emphasised the undesirability of trying to deal prematurely with problems of this character.  Indeed, I was made very aware by the parties, in this case, that both parties were of the opinion that some interlocutory issues, such as discovery, were likely to have to be determined at a Case Management Discussion; and, at any such Case Management Discussion to consider the making of such Orders, similar concerns about national security were going to arise in any event.  To fail to give a detailed decision and to merely give limited directions, as some form of ‘holding’/’staying’ procedure, on foot of this application, did not seem to me, on the facts of this particular case, to be in accordance with the terms of the overriding objective.  It was apparent to me, and recognised by the parties, sooner rather than later the same issues of national security were going to be required to be the subject of determination by this tribunal, not least in the context of interlocutory applications. 

 

2.6     Further, I carefully took into account, before proceeding to determine this application, as I reminded the parties, that the tribunal/Chairman (as the case may be) is required under the provisions of Rule 54(2) to keep under review any Order it or he has made under the said paragraph.  Mr Justice Underhill suggested, in the course of his judgment in the AB case, that an application for review under the said Rule would be appropriate only if there has been some genuinely unforeseen change of circumstance.  I am not convinced, subject to hearing further argument, that the power of review is so restricted.  It may be necessary therefore, at some later stage in these proceedings, to consider further the precise scope of this power of review and whether it is as restricted, as suggested by Mr Justice Underhill in his judgment.

 

2.7     Under Rule 54(2) an Order can only be made to conduct the proceedings in private or to conceal the identity of a particular witness or to keep secret all of part of the reasons for the decision “if a tribunal or Chairman … considers it expedient [tribunal’s emphasis] in the interests of national security”.

 

Mr Justice Underhill in the case of AB set out in his judgment, in some detail, the various arguments in relation to what is meant by the term ‘expedient’; and, in particular, whether it means something less than necessary. 

 

I do not consider it necessary, for the purposes of this decision, to set out the various arguments referred to in his judgment in the AB case, in any detail, not least because there was no objection by the parties in this particular case to the making of the said Orders by the tribunal.

 

Whilst accepting that there was no doubt a conceptual difference between ‘expedient’ and ‘necessary’, Mr Justice Underhill concluded that, in this particular context, what is necessary is inevitably a matter of judgment and not an absolute; and at most, the difference between the party’s positions was one of emphasis about a distinction which was not capable of objective measurement (see Paragraph 18 of his judgment).

 

Mr Justice Underhill then proceeded to set out some useful guidance of the proper approach to be taken by a tribunal or Chairman if it or he considers it expedient in the interests of national security by Order to conduct proceedings in private. 

 

“19     What is in any event clear from the numerous authorities cited to me is that they contain no explicit consideration of the correct approach to be taken where a party ask the court to make an exception to the rule of open justice in the interests of national security.  For the reasons that I have given there is a limit to the useful guidance that can be given.  However, I think that it is possible to say the following:-

 

(1)      Any exception to the rule of open justice has to be justified.  It is, as emphasised in all the cases to which I have referred, a strong rule and any justification has accordingly to be cogent. 

 

(2)            It is uncontroversial that the interests of national security are capable of justifying such an exception.  But, as a matter of principle, in any case where the exception is invoked, and specifically in the case of an application under Rule 54(2) the court or tribunal must make a jurisdictional assessment of whether they do so in the particular case.  That will in principle involve striking a balance between, on the one hand, the seriousness of the prejudice to national security which is asserted, and the degree of risk that that prejudice may occur if the exception sought is not made; and, on the other, the extent to the infringement of the principle of open justice embodied in the Rule and the risk of prejudice to the public interest or the interest of the individual in the particular case.  On ordinary principles, the more serious the infringement of the principle the greater the prejudice, or risk of prejudice, needed to justify it : thus it will be easier to justify, say, the anonymisation of witnesses or the redaction of documents than the conducting of an entire hearing in private. 

 

(3)            Thus far the exercise would appear to be an application of the principle of proportionality of a conventional kind; and one where, because of the importance of the principle of open justice, there is a heavy burden on the parties seeking the restriction.  But that is not the whole picture ‘the interests of national security’ constitute a fact of a rather particular nature.  Where those interests are indeed genuinely engaged the stakes are high : they will involve real risks to the national interest generally and, typically, real risk (of a more or less direct nature) to the lives of members of the armed forces or the security services or of others [tribunal’s emphasis].  An established risk of such outcomes must of its nature weigh heavily in the opposite balance against the principle of open justice, important though that is.  Of course sometimes it will not be self-evident that any such asserted risk is indeed present or is serious.  In such a case, however, the tribunal needs to be aware that the risks in question will often be of a kind which it is not well placed to assess – even if, which will itself often be disproportionate or unrealistic, appropriate direct evidence relating to the risk could be adduced before it.  Tribunals therefore need to approach the task of assessing the risk with a clear understanding of the inherent limitations in their ability to do so.

 

(4)            Those cautionary observations do not mean that the proportionality exercise is unnecessary or they can only have one outcome whenever an application for measures under Rule 54(2) is made.  Tribunals can and should not abdicate their responsibilities to make the necessary assessment whenever national security is invoked.  But they do mean that it will be necessary for tribunals to approach any such application with a recognition of the weight which must necessarily be accorded to any real risk to the interests of national security and of the limits to the assessment of that risk which it may realistically be possible to carry out.

 

It may be that it was with these points in mind that the draughtsman chose the word ‘expedient’ rather than ‘necessary’.  Whether that is so or not, I believe that the question whether an Order under Rule 54(2) should be made should be approached in accordance with the foregoing guidance.”

 

2.8     I am satisfied that it is appropriate, in the absence of any other legal authority, in relation to the proper interpretation of Rule 54(2) from the Court of Appeal in Northern Ireland, to follow, at least in general terms, the guidance given by Mr Justice Underhill in the case of AB, as set out above.  In doing so, I think it is proper to point out that, during the course of his judgment and his review of the relevant authorities, reference was made by Mr Justice Underhill (Paragraph 16) to the decision of the House of Lords in the case of Re: Officer L [2007] 1 WLR 2135.  In that particular case, it was held there was no breach of Article 2 of the Human Rights Convention in relation to whether an Order should be made that a police officer should give evidence, without the protection of anonymity, to a public enquiry in Northern Ireland, notwithstanding his claim that to do so would expose him to the risk of death or injury by way of reprisal.  Lord Carswell in his opinion emphasised that Article 2 of the Convention was only engaged where the risk of life was ‘real and immediate’, which on the facts of that particular case it was not.  Underhill J felt that the decision was of little assistance to him in the AB case, as it was concerned only with a specific question about the compellability of a witness and the availability of Article 2 on the facts of the case as a reason why he should not be compelled.  For reasons, set out later in this decision, on the facts of this particular case, I was of the opinion Article 2 of the Convention, and the decision in Re L, was a relevant matter for me to further consider in the circumstances. 

 

2.9     Mr Coll, in the course of his submissions, acknowledged that the respondent had not made any application to the Secretary of State for Northern Ireland to direct a Chairman or tribunal by Notice to conduct these proceedings in private, pursuant to Rule 54(1)(a) of the Rules of Procedure.  Clearly, if such a direction had been given, I would have had no discretion and the proceedings would have been required to be conducted in private.

 

Mr Coll did not dispute that, whether or not I made any Order pursuant to Rule 54(2) of the Rules of Procedure, was a matter of discretion; and, in particular, I had to be satisfied that I considered it expedient in the interests of national security to make any Order, pursuant to the said Rule.  Evidence was called by the respondent, but not by the claimant.  The claimant indicated that she did not wish to object to the making of the Order to conduct the proceedings in private.  When doing so, she made it clear, as she was entitled to do at this hearing, that she continued to challenge various issues of fact contained in the respondent’s response form.  Despite the agreement between the parties in relation to the making of the Order, I considered that, regardless of any such agreement, it remained necessary for me, as Chairman, to be satisfied, upon the basis of evidence, any such Order should be made.  I considered this was of particular importance, where I had been asked to make such an Order which would be contrary to the normal Rules of the tribunal that all proceedings are conducted in public; and in circumstances where the respondent had decided not to make an application to the Secretary of State for Northern Ireland to seek a direction, as set out above. 

 

2.10    National security is not defined in the 2005 Regulations.

 

In the case of Secretary of State for the Home Department  v  Rehman [2001] UKHL 47, which is not an employment case but related to issues of anti-terrorism, Lord Hoffman, in the course of his judgment, at Paragraph 50 stated:-

 

“There is no difficulty about what ‘national security’ means.  It is the security of the United Kingdom and its people.  On the other hand, the question of whether something is ‘in the interests’ of national security is not a question of law.  It is a matter of judgment and policy.  Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision.  They are entrusted to the Executive.”

 

Under the Rules of Procedure, applicable to industrial tribunals, there is provision for a decision to be made by the Executive in relation to such matters, namely the Secretary of State (see Rule 54(1)(a)).  Under that Rule the Secretary of State for Northern Ireland can give a direction that proceedings must be conducted in private if he considers it expedient in the interests of national security in appropriate proceedings.  However these Rules also allow a tribunal or Chairman to make a similar decision, in the exercise of its or his discretion (see Rule 54(2)).  Given the fact that tribunals are normally held in public, witnesses are identified by name, decisions are issued in full and recorded in a Register, to which the public has access, and issues of national security are matters which normally fall within the  decision-making processes of the Executive, I concluded that, before exercising my discretion to make such an Order, it was necessary for oral evidence to be given and it was not sufficient for me to make a decision on the basis of oral submissions by both parties.  This was so, even if both parties were in agreement that such an Order should be made.  In reaching that decision, I considered it was also consistent with the guidance given by Mr Justice Underhill in the AB case, as referred to above. 

 

2.11    In the course of submissions at this hearing, reference was made by Mr Coll to Article 6 of the European Convention on Human Rights and whether it was in fact engaged in this particular case.  I think there is little doubt that there is a strong common law presumption in favour of open justice.  This is confirmed by the jurisprudence of the European Court of Human Rights, in relation to Article 6; but the Article also allows for the exclusion of the press and public from all or part of a hearing, in a number of exceptions, such as national security.  In the circumstances, it was not necessary for me to consider further, on the particular facts of this case, whether Article 6 was in fact engaged, in light of the European Court of Human Rights judgment in the case of Pellegrin  v  France [1999] 3 IEHRR 651, and subsequent cases.  This is because this case involved the activities of police officers:-

 

          In the case of Pellegrin it was held:-

 

“The court therefore rules that the only disputes excluded from the scope of Article 6(1) of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service insofar as the latter is acting as the depository of public authority responsible for protecting the general interest of the state or other public authorities.  A manifest example of such activities is provided by the armed forces and the police … .”

 

In another case, it may be necessary to further consider whether or not Article 6 is engaged in any similar application and the relevance of the above case law in more detail.  However, I was satisfied that I could determine this application, on the facts, in light of the guidance referred to above by Mr Justice Underhill in the AB case, without further specific consideration of Article 6 of the European Convention and/or the Human Rights Act 1998. 

 

3.1           By letter dated 10 December 2009, the respondent’s representative set out the reasons for making its application, pursuant to Rule 54(2) of the Rules of Procedure:-

 

“ … The reasons for making this being the subject-matter of the disciplinary process in respect of which the claimant makes her complaint to the tribunal is in the view of the Chief Constable such as to give rise to concern for national security if the hearing was to proceed in public. 

 

In particular, the Chief Constable believes that the discussion of the disciplinary issues in an open forum would place ongoing police operations at risk, reveal information that may lead to the identification of police sources and information-gathering methods and pose unacceptable risk to           third-parties and their Article 2 rights.  The Chief Constable is also mindful that the claimant is a serving police officer and that the disciplinary process was considered in private and without public access  … .”

 

3.2           The claim against the claimant, who is a police officer, relates to the outcome of a disciplinary hearing, where she was charged with allegations of breach of confidentiality, breach of integrity and bringing the Service into dispute and/or the penalties imposed against her, when the charges were upheld against her; and the contrast between the penalties imposed at disciplinary hearings against her and male colleagues in relation to the same charges and arising out of the same incident.  Her ‘McKenzie Friend’ is also a police officer.

 

3.3           Having considered the submissions of the claimant and the respondent’s representative and of the oral evidence given, in relation to this application, by D, a senior police officer, I was satisfied that it was expedient in the interests of national security that these proceedings be conducted in private; and it is so ordered.  In deciding to make the said Order, I emphasise that I have come to no conclusion on the matters, which are in dispute between the parties and the subject-matter of these proceedings.

 

I was also satisfied, and it is so ordered, that it is expedient in the interests of national security, that the identity of the respondent’s witness, D, referred to above, be concealed; and further that part of the reasons for this decision be kept secret and consist, in part, of a closed section, which section will be omitted from the Register.

 

3.4           In reaching my said conclusion it was so expedient and therefore it was appropriate for me to make the said Order to conduct the proceedings in private, I was satisfied, after applying the guidance set out in the case of AB, that, in the course of these proceedings it would be necessary for the tribunal, during the course of these proceedings, to hear evidence and, in particular, evidence relating to the nature of and/or background to the charges, the subject-matter of the disciplinary hearings.  In doing so, I was satisfied there was a real risk to ongoing police operations, and further that such disclosure, during the course of these proceedings, could place the claimant and/or third parties in risk of their lives.  I further considered, in the circumstances, the risk was real and immediate and sufficient to engage their Article 2 rights (see further Re: Officer L [2007] 1 WLR 2135 and Paragraph 19(4) of AB case).  However, I was not satisfied that any issue arose in relation to the identification of police sources; and having regard to the details which are already in the public domain, following the various recent public inquiries, such as those involving the deaths of Rosemary Nelson and Robert Hamill, I was not persuaded, in the circumstances, that the risk of revealing information of police-gathering methods was sufficient, in itself, to make the said Order.  The fact the claimant and/or the said witness are police officers, and the disciplinary process was conducted in private, would not have persuaded me to make the said Order, in themselves, but were relevant  in the context of the matters found by me, as set out above.  Taking into account those matters found by me, and after carrying out the necessary balancing exercise referred to in the guidance in the AB case, I concluded that the risk to the interests of national security, in these particular circumstances, outweighed the principle of open justice, however important that principle is and not least in tribunal proceedings.  I did so, in particular, in light of the clear and cogent oral evidence presented to me by D.  By giving evidence to this pre-hearing review about these matters, but also having regard to his senior position and his particular duties with the respondent, I was satisfied there was a similar real and immediate risk to the life of D if his identity as a witness, at this hearing, was not concealed in this decision; and it was therefore expedient in the interests in national security to make such an Order.  

 

In light of the foregoing, I also similarly concluded that, in the circumstances, that that part of my decision setting out the detailed reasons for my conclusions required to be kept secret. 

 

I was not satisfied that to merely anonymise witnesses and/or to redact documents, where appropriate, would be sufficient, in the circumstances, to prevent the risk to the interests of national security, if the proceedings were conducted in public rather than in private.

 

4.       ‘CLOSED’ SECTION OF THE DECISION

 

5.       Following this decision a Case Management Discussion will require to be arranged, pursuant to Industrial Tribunals (National Security) Rules of Procedure contained in Schedule 2 of the Regulations, to enable relevant case-management directions/orders to be given to enable the claim to be listed for hearing and to determine any outstanding interlocutory issues.  The parties will be notified in due course of the date and time of the Case Management Discussion.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         5 January 2010, Belfast

 

 

Date decision recorded in register and issued to parties: