Key facts of the case:
The appellant (C) was an employee who appealed against a decision stating that he was not entitled to disclosure of the reasons for his dismissal from his role as immigration officer. Before the initial tribunal C had brought an unfair dismissal claim alleging discrimination on race and religious grounds as no reasons were given for his dismissal. The secretary of state claimed this was on the basis of reasons of national security. The tribunal made interim orders to exclude C and his representatives from closed interlocutory hearings, to prevent disclosure of secret materials and to appoint a special advocate. C claimed this was not compatible with Article 6 of the ECHR but the tribunal held that it was. C appealed to the Employment Appeal Tribunal stating that the focus should be on EU law jurisprudence, in particular ZZ v Secretary of State for the Home Department (C- 300/11), rather than ECHR jurisprudence.
Outcome of the case:
The answer to the question was negative and the appeal was dismissed. The Court of Appeal submitted that, in the light of Article 6 (2) TFEU and Articles 27 and 52 of the Charter, it would be remarkable if there were a material difference between the general approach taken by ECHR and EU law in relation to such an important issue of procedureal justice. According to the Court of Appeal, the CJEU, in ZZ v Secretary of State for the Home Department, was not enunciating a universal principle of EU law which applied in the same way regardless of context and the CJEU made clear that it was interpreting Articles 30 (2) and 31 of Directive 2004/38.
18. It is also necessary to refer to the Explanations relating to the Charter published on 14 December 2007 (2007 C303/02). The Explanation on article 47 states that its second paragraph "corresponds" with article 6 of the Convention. It also states that in Union law the right to a fair hearing is not confined to disputes relating to "civil rights and obligations". It continues: "Nevertheless, in all respects other than their scope, the guarantees afforded by the [Convention] apply in a similar way to the Union". The Explanation on article 52 states that paragraph 3 is intended to ensure "the necessary consistency between the Charter and the [Convention], by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the [Convention], the meaning and scope of those rights, including authorised limitations, are the same as those laid down by the [Convention]". It also states that the last sentence of paragraph 3 is "designed to allow the Union to guarantee more extensive protection. In any event, the level of protection afforded by the Charter may not be lower than that guaranteed by the [Convention]".
In these circumstances, it is not surprising that in Tariq Lord Mance said at para 23:
"…..It is, however, clear from both Kadi cases that the Court of Justice will look for guidance in the jurisprudence of the European Court of Human Rights when deciding whether effective legal protection exists, and how any balance should be struck when a question arises whether civil procedures should be varied to reflect concerns relating to national security. A national court, faced with an issue of effective legal protection or, putting the same point in different terms, access to effective procedural justice, can be confident that both European courts, Luxembourg and Strasbourg, will have the same values and will expect and accept similar procedures. Article 6(2) of the Treaty on the European Union ("The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law") and the Charter of Fundamental Rights already point strongly in this direction. Assuming that the European Union will in due course formally subscribe to the European Convention on Human Rights, as contemplated by the Treaty amendments introduced under the Treaty of Lisbon, the expectation will receive still further reinforcement." [para. 18]
Mr Southey submits that the approach to fairness required by the Convention is not identical to that required by EU law in general and the Charter in particular. He accepts that Convention law permits the withholding of material from an excluded person in certain circumstances depending on the context and the rights that are at stake in the proceedings. But he submits that EU law does not. He says that EU law requires that an excluded person must always be provided with a core minimum of relevant information about the secret material where the vindication of EU rights is sought. [para. 32] I do not accept Mr Southey's submissions. The points made by Lord Mance at paras 23 and 61 of Tariq continue to hold good. In the light of article 6(2) of the Treaty on European Union and the passages from articles 47 and 52 of the Charter and the Explanations of them that I have set out at paras 15 to 17 above, it would be remarkable if there were a material difference of general approach between Convention law and EU law in relation to the important issue of procedural justice raised in this appeal. [para. 33] Mr Southey submits that ZZ (CJEU) supports his submission that such a difference is recognised in EU law. I need, therefore, to return to that decision. I can start with the opening words of para 50 of the judgment of the court (see para 28 above). [para. 34] The opening words of para 50 "It is in that context" show that the court was not purporting to enunciate a universal principle of EU law which applied in the same way regardless of the context. On the contrary, it made it clear in this paragraph (and other paragraphs) that it was interpreting articles 30(2) and 31 of the Directive. The particular feature of the context that it identified was that (i) article 30(2) contained a derogation from an EU right to be informed "precisely and in full" of the grounds on which the decision was taken unless this was contrary to the interests of state security and (ii) this derogation had to be strictly construed. As Mr Bourne QC says, the court would not have expressed itself in these terms if it was of the view that article 47 of the Charter requires disclosure of the essence of the grounds in every case where a person seeks to vindicate an EU law right. If it had intended to say that the ECtHR context-dependent approach to article 6 of the Convention did not apply in EU law, it would surely have said so. [para. 35] The entire discussion by the court was directed to the question of what information a person affected by a decision under article 27 of the Directive is entitled to have by reason of articles 30(2) and 31. Paras 65 and 66 of the judgment (which I have set out at para 29 above) are likewise directed to that issue. It is true that the court did not say that articles 27, 30(2) and 31 have unique features. But importantly, there is nothing to suggest that the court was of the view that its conclusion as to the extent of the disclosure obligation in that case applied to all cases within the scope of EU law. Nor is there anything in the judgment to suggest that the court was purporting to lay down some new general principle of law. In so far as it stated a general principle, it is perhaps to be found in para 53, where the court said:
" According to the Court's settled case-law, if the judicial review guaranteed by Article 47 of the Charter is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information (Joined Cases C-372/09 and C-373/09 Peñarroja Fa  ECR I-1785, paragraph 63, and Case C-430/10 Gaydarov  ECR I-11637, paragraph 41), so as to make it possible for him to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the national decision in question (see, to this effect, Case 222/86 Heylens and Others  ECR 4097, paragraph 15, and Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  ECR I-6351, paragraph 337)." [para. 36] Mr Southey also relies on European Commission v Kadi (No 2)  1 CMLR 24. The applicant's name was placed on a list so that his assets in the European Union were frozen. The CJEU referred at para 100 of its judgment to the fundamental right enshrined in article 47 of the Charter which (the court said) requires that the person concerned must be placed in a position:
"…..so as to make it possible for him to defend his rights in the best possible conditions and to decide with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction and in order to put the latter in a position to review the lawfulness of the decision in question." [para. 37] In support of this statement, the court referred to ZZ (CJEU). At para 102, it said:
"Further, the question whether there is an infringement of the rights of the defence and of the right to effective judicial protection must be examined in relation to the specific circumstances of each particular case…including, the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question." [para. 38] In my view, this passage is entirely consistent with the context-specific approach adopted by the ECtHR in relation to the Convention and inconsistent with the absolutist approach advocated by Mr Southey. At paras 125 to 130, the court conducted an exercise which mirrors precisely that set out at paras 61 to 68 of ZZ (CJEU) i.e. the court has to decide whether the reasons relied on against disclosure are well-founded, and if so it has to strike a balance between the right to effective judicial protection guaranteed by article 47 of the Charter and the requirements of state security. At para 129, the court said:
"In order to strike such a balance, it is legitimate to consider possibilities such as the disclosure of a summary outlining the information's content or that of the evidence in question. Irrespective of whether such possibilities are taken, it is for the Courts of European Union to assess whether and to what the extent the failure to disclose confidential information or evidence to the person concerned and his consequential inability to submit his observations on them are such as to affect the probative value of the confidential information." [para. 39] I can see no inconsistency between this approach and that adopted in the Convention jurisprudence in relation to article 6 of the Convention. Kadi (No 2) provides no support for the idea that article 47 of the Charter requires the essence of the factual basis of a decision to be supplied to the person concerned in all cases, regardless of the context and the particular circumstances. [para. 40] I should add that there is nothing in the Court of Appeal decision in ZZ which casts doubt on this. All that the court was doing was to interpret ZZ (CJEU). The circumstances and context of that case were materially different from those of the present case. [para. 41]
To summarise, therefore, I agree with what Langstaff J said at para 40 of the EAT judgment:
"Though I accept Article 47 applies, I do not accept [Mr Southey's] categorisation of the statement in ZZ as being one of fundamental principle, if by "fundamental" he means (as I understand him to submit) that which must apply across the board, and can in no circumstances be departed from; nor do I accept his submission that the CJEU was adopting a more rigorous standard than was the ECtHR, such that Lord Mance was wrong to reason as he did in Tariq. I accept instead Mr Bourne QC's submissions that the statement of principle in ZZ was, to the contrary, related to the particular context—that of restrictions on the fundamental rights of free movement and residence of Union citizens under European Union law—and did not indicate the adoption of a more demanding standard in all contexts." [para. 42]