Tariq v Home Office [2011] UKSC 35
Facts
Tariq worked for the Home Office and lost security clearance after concerns associated with a terrorism investigation involving members of his family. He brought an employment discrimination claim. National-security provisions allowed the tribunal to consider some material in closed proceedings, with a special advocate rather than full disclosure to him. The dispute reached the Supreme Court over whether he had an absolute entitlement to enough information about the allegations to give effective instructions. The Home Office challenged a declaration requiring that level of disclosure in the proceedings.
Legal Issue
Whether Article 6 required the AF (No 3) level of disclosure as an absolute minimum in an employment discrimination claim using a statutorily authorised closed-material procedure.
Held
The Supreme Court allowed the Home Office's appeal on the disclosure issue by a majority. It rejected an absolute requirement to apply the AF (No 3) disclosure standard irrespective of the nature and circumstances of these proceedings. The majority distinguished measures imposing serious restrictions on liberty from Tariq's civil employment claim and considered the safeguards of the authorised tribunal procedure. This did not remove the duty to secure a fair hearing or prevent scrutiny of particular withholding decisions. Lord Kerr dissented, favouring a stronger minimum entitlement to information needed for effective instructions. The decision therefore requires contextual fairness analysis rather than either unrestricted secrecy or a universal disclosure formula.
⭐ Legal Principle
In the authorised employment-tribunal closed procedure, Tariq rejected an absolute entitlement to the disclosure standard required in AF (No 3). Fairness remained necessary, but its requirements depended on the proceedings, competing interests and available safeguards.
Significance
Tariq demonstrates that closed-material fairness cannot be reduced to a single rule detached from the proceedings. The majority distinguished an employment discrimination claim from control-order proceedings directly restricting liberty. That distinction did not remove the obligation of a fair hearing or make national security a complete answer to every disclosure request. The case should be read alongside AF (No 3) and Al Rawi: one concerns disclosure requirements, another the legal authority to use a closed procedure. Lord Kerr's stronger disclosure position was a dissent.
Common exam questions about this case
Why did the majority distinguish AF (No 3)?
AF concerned measures directly restricting personal liberty, whereas Tariq was pursuing an employment discrimination claim against the state. The majority considered that difference relevant to the disclosure safeguards required. It declined to transfer AF’s minimum-disclosure formulation automatically to every civil case involving closed material, while retaining the requirement of overall fairness.
Did the Home Office gain an unrestricted right to withhold information?
No. The decision rejected an absolute disclosure rule in this particular statutory setting. The tribunal still had to administer the closed procedure fairly and scrutinise the treatment of sensitive material with the relevant safeguards. National security did not remove Article 6 or automatically justify every proposed restriction.
How is Tariq different from Al Rawi?
Tariq involved an employment tribunal procedure authorised by legislation, with its own safeguards. Al Rawi concerned whether courts could introduce a closed-material procedure into ordinary civil litigation without statutory authority. Establishing legal power to use a procedure and deciding what fairness requires within an authorised procedure are separate questions.