Appeal No. UKEAT/0542/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 2007

Before
THE HONOURABLE MR JUSTICE BURTON
(SITTING ALONE)

MR A FAROOQ	APPELLANT

COMMISSIONER OF POLICE OF THE METROPOLIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PHILIP ENGELMAN
(of Counsel)
Instructed by:
Equal Justice
15 Southampton Place
Holborn
London WC1A 2AJ	
For the Respondent	MR KEITH BRYANT
(of Counsel)
Instructed by:
Metropolitan Police Service
Directorate of Legal Services
Wellington House 
67-73 Buckingham Gate
London SW1E 6BE

MS S RAHMAN
(of Counsel)
Instructed by:
Special Advocates Support Office
Treasury Solicitors
One Kemble Street
London WC2B 4TS	

SUMMARY

Unfair Dismissal - national security
The Appellant’s claim for discrimination against the Respondent Police Force was made, by ET Order of 3 September 2005, subject to ET Rule 54, when Orders made for (1) Special Advocate (2) Hearing in private and (3) Closed evidence heard before open evidence. Such Order was unsuccessfully appealed by the Appellant to the EAT.  At further CMDs in 2007, ET asked to reconsider Orders (2) and (3) and did not do so, on the grounds that there was no change of circumstance and such Orders remained appropriate. On appeal, Appellant (supported by Special Advocate) sought to challenge Rule 54 and Order (1), when such had been (a) already the subject of the unsuccessful appeal (b) was not the subject of any first instance submission at the ET nor the subject matter of the ET Order now appealed (c) was not only not in the Grounds of Appeal, but was expressly abjured in them. As to Orders (2) and (3), they had also been the subject of the prior unsuccessful EAT appeal, and there has been no change of circumstances, and in any event as to Order (3) no prejudice or error of law was shown. Dicta on the relevance of MB and approval of the words of the ET Chairman that there could and would be (i) review of the Rule 54 decisions by the ET as appropriate (ii) flexibility as to the holding of open and closed hearings.

THE HONOURABLE MR JUSTICE BURTON

1.	This has been the hearing of an appeal by the Appellant, Mr Farooq, against the decision of the Regional Chairman, Mr Latham, sitting as Chairman alone at London Central, in respect of two case management hearings held on 23 May and 28 June 2007, set out in reasons sent to the parties on 25 October 2007.

2.	The case relates to Mr Farooq’s claim against the Commissioner of Police for the Metropolis.  He claims, as a police officer involved at the material time in fire arms supervision and himself personally involved in high profile security matters, for direct race discrimination, direct discrimination on grounds of religion and/or belief, and victimisation within the meaning of the Race Relations Act 1976.  

3.	There are a number of issues in the case which I do not need to summarise, but the fundamental matter that underlies them is the decision by the Respondent not to permit Mr Farooq to continue in those high security duties and to suggest transfer to other duties, said to arise out of a failure by him to be successful in security vetting.  As a result the case is going to revolve around that issue with regard to all the matters that he has raised, primarily as a matter of justifying any conduct which the Respondent took, but no doubt also as part of the factual context which it will be necessary for the Appellant to deal with, in order to satisfy the initial onus in respect of all those claims.  Consequently, there has been an order made by the Tribunal under Rule 54 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004, which rule is headed up “National security proceedings”.  Schedule 2 deals with the procedures applicable to those tribunal hearings where an order under Rule 54 has been made. Rule 34 reads in material part as follows:
“	(1)	A Minister of the Crown 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 or part of particular Crown employment proceedings;
		(b)	exclude the claimant from all or part of particular Crown employment proceedings;
		(c)	exclude the claimant’s representative from all or part of particular Crown employment proceedings;
		(d)	take steps to conceal the identify of a particular 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)	do 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).”

There are other provisions which are not directly relevant to today’s hearing.

Sub-paragraph 2 concludes:
“The tribunal or chairman (as the case may be) shall keep under review any order it or he has made under this paragraph.”

Paragraph 8 of Schedule 2 of the Regulations deals with the appointment of a special advocate:

“	(1)	In any proceedings in which there is an excluded person the tribunal or chairman shall inform the Attorney General … of the proceedings before it with a view to the Attorney General … if he think it fit to do so, appointing a special advocated to represent the interests of the claimant in respect of those parts of the proceedings from which−
			(a)	any representative of his is excluded;
			(b)	both he and his representative are excluded; or
			(c)	he is excluded, where he does not have a representative.”

Under sub-paragraph (4) and (5):
“	(4)	Except in accordance with paragraphs (5) to (7), the special advocate may not communicate directly or indirectly with any person (including an excluded person)−
			(a)	(except in the case of the tribunal, chairman and the respondent) on any matter contained in the grounds for the response …;
			(b)	(except in the case of a person who was present) on any matter discussed or referred to during any part of the proceedings in which the tribunal or chairman sat in private in accordance with a direction or order given or made under rule 54.
	(5)	The special advocate may apply for orders from the tribunal or chairman authorising him to seek instructions from, or otherwise to communicate with, an excluded person−
			(a)	on any matter contained in the grounds for the response referred to …; or 
			(b)	on any matter discussed or referred to during any part of the proceedings in which the tribunal or chairman sat in private in accordance with a direction or an order given or made under rule 54.”

4.	There has been a special advocate appointed in this case. Originally it was a Mr de la Mare of Counsel, who attended at the 23 May 2007 hearing, from which this appeal now takes place; and then he was replaced by Miss Rahman, who attended on the 28 June Case Management Discussion, and has attended helpfully before me on this appeal.  Miss Rahman has drawn my attention to a Guide to the Role of Special Advocates and the Special Advocates Support Office, which has been primarily been prepared with a view to the hearings which have now become fairly regular before the Special Immigration Appeals Commission (SIAC), in which special advocates are as a matter of course appointed when security issues arise. She has drawn my attention to paragraph 108 of that Guide relating to the conduct of an appeal hearing before that Tribunal, which reads as follows:
“The appeal itself will also be conducted in two parts to reflect the two types of evidence being presented … The open hearing will take place first at which the appellant and his representatives will be present and will take part.  This is the only other opportunity a special advocate will have to see how the case for the appellant is put and they receive some guidance on possible cross-examination topics from the lines of questioning pursued by the appellant’s counsel.”

5.	The case has been proceeding for some time, and there were interlocutory hearings in the course of 2005, on 6 May and 8 July, when an order was made in respect of the privacy of the hearing by reference to Rule 16 of the Employment Tribunals Rules.  That Order was made, if not by consent, certainly without opposition, and it is only subsequent to the making of the Rule 16 Order that the kind of issues canvassed now before me have been put forward on the Appellant’s behalf, and in due course by the Special Advocate, once appointed.  But I do not need to consider the applicability of Rule 16 because, as I have indicated, a Rule 54 Order was made: this was at a hearing before Mr Latham on 30 September 2005.  On that occasion, Mr Bryant of Counsel, who has appeared for the Commissioner of Police before me today, appeared, and other Counsel, not before me today, appeared for the Appellant.  Orders were made which are relevant to the issues before me today, and the orders are set out in paragraph 8 of the Reasons sent to the parties on 30 September 2005.  This was the hearing at which the Rule 54 order was imposed,  and the orders that were consequentially made are set out in paragraph 8.1 as follows:
“Under the provisions of Rule 54(2) of the 2004 Rules, as follows:-
8.1.1.	That all Hearings in this matter would be held in private;
8.1.2	That the Claimant would be excluded from parts of the proceedings when relevant evidence is being given that is the subject of this Order;
8.1.3	That the Counsel for the Claimant and any other representative of the Claimant would be excluded from parts of the proceedings when relevant evidence is being given that is the subject of this Order;
8.1.4	That the hearing be conducted in two parts, the first part being that to which Orders in paragraphs 8.1.2 and 8.1.3 above apply [that is the provision for closed evidence] and the second part, immediately following the first part, being the remaining parts of the Hearing, which nonetheless will be held in private but at which the Claimant and Claimant’s Counsel would be present.”

6.	I have been told that, that, so far as Counsel know, and I believe this was also, I am told, the view of Mr Latham, this is the first contested hearing which will have gone to a full hearing in an employment tribunal in which a special advocate will have been appointed under Schedule 2, and the provisions of Rule 54 applied. It is certainly my experience that there have been other cases in the tribunals in which Rule 54 has been applied or referred to, but I also know of no other case which has come to trial with a special advocate at the helm for the Appellant dealing with the closed elements.

7.	There was last week a hearing before Nelson J, a different judge of this Appeal Tribunal, dealing with issues of disclosure, in substantial part in closed session.  I do not know the details of what occurred, but I am told by Miss Rahman that the result of that hearing is that it is expected that, by agreement between herself and Mr Bryant, further documents than have previously been disclosed will be likely to be agreed to be transferred from closed to open, but there is not as yet any agreement in that regard.  The hearing is fixed for 26 November of this year, and will start, in accordance with that order made as long ago as 30 September 2005, with the closed hearing, at which Miss Rahman will be present as Special Advocate.  

8.	The reasons for that decision of 30 September were not supplied until 4 May 2007, and an appeal went forward to the Employment Appeal Tribunal, once those reasons had been received, against the imposition of Rule 54 and the consequent procedures, including the appointment of a special advocate.  I have seen the Notice of Appeal issued by the Appellant in May 2007 for the purpose of his appeal, and it was plainly directed towards the setting aside of the whole of the Rule 54 procedure.  There was, in addition, a specific reference in paragraph 7 of the Notice of Appeal to a complaint that even the open part of the hearing was to take place in private.  

9.	The appeal came on before Underhill J, sitting alone at the Employment Appeal Tribunal,
very speedily, on 17 May 2007, and he reserved judgment over to the following day, 18 May, when he delivered an oral judgment dismissing the appeal.  No transcript was sought by either side and so there is no detail of the judgment.  I have the benefit, supplied to me by Mr Bryant, of skeleton arguments for both sides, in which it is apparent that what I have indicated was indeed the substance of the appeal, namely a full-frontal attack on Rule 54, coupled with a specific addressing of the issue as to whether the open part of the hearing should be in private:  and, as I have indicated, the appeal was dismissed.  That was an appeal against the Order of 30 September 2005, as I have described.

10.	At the two case management hearings, which form the subject matter of the decision now appealed against, Mr Latham acted on the basis of the Order that he had previously made on 30 September 2005, which had thus been unsuccessfully appealed.  It is quite apparent from his decision that he appreciates two things. One is that he had the duty to re-examine or review the operation of Rule 54 at all times, pursuant to the requirement which I have quoted in Rule 54(2). Secondly, that there was then pending a decision from the House of Lords in an appeal from SIAC, now known as Secretary of State for the Home Department v MB, which had not yet been received. He indicated that he had been hoping that it if it had come forward it would have assisted him. He said in paragraph 29 that he had been attempting to reserve his decision until the decision from the House of Lords in that case, in order to take into account any particular aspects of their Lordships’ decision that might affect his considerations and deliberations. But that was not available, and of course knowing, as he did, that the hearing is fixed for November, he very sensibly did not in fact await the outcome of that appeal, which in the end was delivered on 31 October, as [2007] UKHL 46.  

11.	That appeal related to the imposition of a control order, which was found by their Lordships to have exceeded what was appropriate, made after a hearing which involved the special advocate procedure.  It had been postulated that it might be a possibility that the House of Lords might conclude that the special advocate system did not accord with fairness or justice or human rights and might be struck down in some way: but, albeit that a minority opinion was given by Lord Bingham which did not in the event go that far, but further than his colleagues, that was not the result of the House of Lords’ decision. What their Lordships did was, apart from dealing with the facts of the particular control orders, which were found to be too long, to express themselves in clear terms as to the dangers of a special advocate procedure. In particular, Mr Engelman, who has appeared very ably indeed on behalf of the Appellant before me today, has drawn my attention to a number of paragraphs of their Lordships’ opinions, to paragraph 35 of Lord Bingham’s speech, and then to paragraph 43, in which he says that 
“the concept of fairness imports a core, irreducible minimum of procedural protection”
which he had difficulty in concluding had been afforded to one of the appellants. Baroness Hale recited at paragraph 62 a passage from the European Court of Human Rights judgment of 7 June 2007 in Botmeh and Alami v United Kingdom, at paragraph 37:
“…in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.”

Lord Carswell recited at paragraph 82 with approval what Lord Woolf had said in R (Roberts) v Parole Board [2005] 2 AC 738 at paragraph 83:
“What will be determinative in a particular case is whether looking at the process as a whole, a decision has been taken … using a procedure that involves significant injustice to the prisoner.”
And at paragraph 91 Lord Brown said that: 
“in my judgment closed material must be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.”

12.	What therefore did not occur as a result of the House of Lords’ decision was any kind of end to the special advocate procedure, or any kind of suggestion that the procedures under Rule 54 and Schedule 2 of the Employment Tribunal Rules were not lawful.  But Mr Engelman relies upon that decision as a clear indication of the caution, to say the least, which courts, and in this case, an employment tribunal, must operate when using the procedure.

13.	There are three matters which have been argued before me today. 

14.	 The first is a case put forward only in Mr Engelman’s skeleton, seeking to challenge the use of Rule 54 and the closed evidence and special advocate procedure in this case at all.  I am entirely satisfied that, notwithstanding his blandishments, this is not a matter which falls to me to decide on this appeal.  First there was an appeal to Underhill J against the very Order which imposed this procedure, which appeal was decided, unfavourably to his client, by Underhill J in May. There has been no appeal, so far as I know, to the Court of Appeal, but at least unless and until there were one, that would be not only persuasive of the case so far as I am concerned, but within Henderson v Henderson [1843] 3 Hare 100 and the doctrine of estoppel per rem judicatam an impossibility for the Claimant to reopen, absent some change of circumstance or other special circumstance, capable of being relied upon before this Appeal Tribunal.  That is not to say that there would not be a ground for referring the Chairman of the Employment Tribunal at the hearing to the new case of MB, so that any reconsideration or review which the Chairman is obliged to apply under Rule 54(2) can be carried out.  That has not occurred here.  There can be no criticism of that, because the House of Lords’ decision did not come out until after Mr Latham’s decision, now appealed from, as he said, in paragraph 29 of his judgment, was the case. But the fact is there has not been any application to the Employment Tribunal, and so either there is nothing to appeal against at all or this is an appeal against the 30 September order, which it cannot be because there has already been one, and I cannot reopen Mr Justice Underhill’s appeal, and I am not, in fact, formally invited to do so in any event.  Further, there was nothing in the decision of 25 October, against which this appeal is now brought, which amounted to a challenge to Rule 54, against the refusal of which challenge there could now be an appeal before me.  Mr Latham did not deal with, and took for granted, the fact that, the appeal before Mr Justice Underhill having been unsuccessful, Rule 54 should continue.  I cannot therefore hear an appeal against a matter that was not even raised before Mr Latham:  this is an appellate tribunal not a first instance tribunal.  

15.	Thirdly, and in any event, simply to put the final kibosh on Mr Engelman’s prospects of success on this appeal, he has not even sought to put the matter forward in the Notice of Appeal, which was not his, but which he has inherited.  The Notice of Appeal is put forward on the basis of paragraph 15 of the Notice accepting that the closed part of the hearing which does involve national security should be heard in private;  and paragraph 34 positively states:
“For the avoidance of doubt the closed evidence should continue to be heard in private with the special advocate present under Rule 54.”
Doubt has thus been avoided, and there is none, namely that there is no matter raised in this appeal which could amount to a challenge to a decision, which was not in fact made in the decision now appealed against.  He has referred to Further and Better Particulars of the Notice of Appeal, which I ordered because it was not entirely clear which paragraphs of the decision were being challenged:  and there is nothing in those Further and Better Particulars which raises this point, certainly not so as to go behind the clear terms of the Notice of Appeal, which I have read.  And there is not, even today, any application for an amendment to the Notice of Appeal, which would be bound, for the other reasons I have given, to be unsuccessful 

16.	In those circumstances, I do not deal with as a matter of substance, but in any event reject, the first ground put forward.

17.	I turn to the first of the two grounds which were plainly in the Notice of Appeal, the second and third matters argued before me today.  That ground is a challenge to the conclusion of Mr Latham that the open part of the hearing should be heard in private.  Once again, this was not the subject of a fresh decision by Mr Latham at the hearing on 25 October, but at least the matter was, as I shall explain, raised before him, unlike the first ground with which I have already dealt. The Order which originally provided that the hearing would be wholly private, and thus the public be excluded from it, was made under Rule 16 at the two interlocutory hearings, which I have earlier mentioned, on 6 May and 8 July 2005.  But the primary ground upon which the Respondent supports the order made for the hearing to be in private is that of 30 September 2005 when Rule 54 was operated, and there was the express order in paragraph 8.1.1 and 8.1.4 of Mr Latham’s then Order, which I have recited.  The appeal before Underhill J did expressly raise the challenge to that aspect of the September 2005 Order, as I have described earlier in this judgment, and the appeal was unsuccessful.
18.	Once again therefore, it seems to me entirely clear that there is no basis upon which I can go behind Underhill J’s decision.  It is not simply a question that Henderson v Henderson, as Mr Engelman accepted in the course of his submissions, would be a difficulty for him if a matter ought to have been argued.  The matter, as is now plain, but it would have been clear in any event from the Notice of Appeal, was argued and dealt with, and argued by able and experienced Counsel.  Mr Engelman has submitted that his submissions on the point, referring not just to Scott v Scott but to a quantity of other cases underlining the importance which employment tribunals and the Courts place upon the open and public nature of their hearings in general terms, were not specifically referred to in the Notice of Appeal or the skeleton argument or in the judgment of Mr Latham of 30 September 2005, against which the appeal before Underhill J was brought.  But it is wholly clear that Mr Latham and those Counsel and Underhill J will have known the presumption in favour of public hearings, which is engrained in the common law and which does not need Article 6 to back it up.  It is clear that there is a very restricted right of a party to seek any kind of inhibition on publicity in the employment tribunals.  There is a very limited right to seek a restricted reporting order, which is only available in very special circumstances; and, absent that, however embarrassing, or confidential, any evidence that is sought to be brought by one side or the other may be, it is almost certain that the public will be entitled to come and listen to it, or at any rate to see its nature in a public judgment.  But Rule 54 is the exception to that rule, and it deals in terms with the exact position with which we are now concerned and gives the power to a chairman of an employment tribunal, which Mr Latham exercised, and which the Employment Appeal Tribunal on appeal upheld.  I have no doubt at all that there is no basis for challenge to that appeal decision, and that there is no basis for asserting that there was any error in it that can now be adjudicated, unless there is some special circumstance which gives rise for the need for reconsideration. That can arise, either on the basis that Henderson v Henderson can on occasion be avoided, by there being appropriate change of circumstances;  and Mr Bryant has drawn my attention to two authorities which are of assistance in this regard Goldman Sachs Services Ltd v Montali [2002] ICR 1251, particularly at paragraph 26, and Hart v English Heritage (Historic Buildings & Monuments Commission for England [2006] IRLR 915, particularly at paragraph 31.  

19.	Further, there is the review power and duty, to which I have referred, in Rule 54(2).   Mr Latham was asked to look again at this issue, and he dealt with it briefly - as Mr Engelman submits, too briefly - in paragraphs 21, 22, 24, 26 and 29 of his judgment.  I am entirely satisfied that there were no special, or any, circumstances showing a change in those circumstances since the decision that he had made in September 2005, which had so recently been considered by the Employment Appeal Tribunal in May 2007.  

20.	The only matter that might arise would be anything in MB, upon which Mr Engelman has relied.  He has submitted that the more stringent attitude of the House of Lords, if such it be, towards these kind of procedures should be regarded as a change of circumstance. I can see nothing which bears on the question which had been fully considered by Mr Latham and the Employment Appeal Tribunal so recently, as to whether the open parts of the hearing should be in private, which should have caused Mr Latham to reopen the issue. His decision is succinct, but in my judgment is sufficient to be compliant with Meek v City of Birmingham on this procedural matter, which had so recently been considered. It is quite plain that he was primarily looking, and rightly so in my judgment, for any change of circumstance since his own judgment and that of the Employment Appeal Tribunal, and there was none.

21.	Before I turn to consider the third ground, the second which was contained in the Notice of Appeal, I should address, and do, Mr Engelman’s cri de cœur, which is that the opportunity should be taken by this Appeal Tribunal to reconsider the issue of closed evidence in the light of MB, and to consider in broad terms whether there is any change of approach that should be adopted with regard to this particular case.  I have already indicated in terms that this is an appeal tribunal, and that if there is nothing against which an appeal can be brought forward, then, as with my dismissal of his first ground, this Court has no jurisdiction to deal with an issue which is not before it.  I have also considered the issue as to whether MB has any role to play in the Scott v Scott consideration as to whether the open part of the proceeding should be held in private, and have concluded that once again, for the reasons I have given, the matter is not before me.  I do bear in mind the fact that the Tribunal hearing is about to start on 26 November and every step should be taken to ensure both that fairness is carried out to both parties, but particularly to the Claimant, where there is the inhibition in this case which has been emphasised by their Lordships’ speeches, which I have cited, but that also, if at all possible the hearing should go ahead because this is now a very old case. It may be that some matters that have been canvassed in the course of this hearing, with the assistance of all three Counsel, may be of some use both in ensuring that the hearing does go ahead, and also, with luck, preventing the need for any further appeals, short of course of any appeal against the final decision which either side may wish or be entitled then to bring forward.  

22.	It is in the context of consideration of the third ground that it may be that there are matters with which I can helpfully deal. This third ground is the challenge to the order by Mr Latham, to which I have already referred, that the closed evidence should be given first and the open evidence follow.  Once again, the jurisdictional position is very similar indeed to that reviewed when I dealt with the second ground. The order in this regard was contained in a decision of 30 September 2005 at paragraph 8, which I have quoted, it was not dealt with in the reasons which were given for that decision, in the separate document sent to the parties on 4 May 2007, but of course, being a relatively concise procedural matter, it would not necessarily need a great deal of reasoning. However, whether Meek-compliant or otherwise, appropriate or not, it was the subject of an order which was appealed unsuccessfully to the Employment Tribunal, and, for the reasons I have previously given, I am satisfied that there is no basis in those circumstances on which it can be reconsidered, unless there has been a change of circumstance or some fundamental point of law which was not considered, and which could give ground to the need for review or reconsideration.  

23.	Two points are raised by the two Counsel supporting this appeal.  Mr Engelman makes the point, rightly, that Igen Ltd v Wong [2005] IRLR 258 regularises the effect of the Burden of Proof Directive on discrimination cases, and imposes a not easy regime on tribunals, whereby there is consideration first whether the Claimant has satisfied the onus of proof of establishing an act of discrimination, at which stage only to a limited extent can the evidence or the case for the Respondent be considered, which only becomes primarily relevant when the onus shifts, if it does, to prove justification. But it is quite plain from any consideration of Igen v Wong and the other similar cases, that what this refers to is the need for great care by a tribunal in sifting and making use of the evidence and submissions that it has heard.  Indeed, there are other well established cases which very much deprecate any strike-out orders or submissions of no case in discrimination cases, and which emphasise the need for a tribunal, in most cases, to consider the evidence in full before making its mind up.  I am satisfied that there is nothing in the principles of Igen v Wong which require that the Appellant must give his evidence first.  That may be the practice in most tribunals, and Mr Engelman has referred to an old case Barnes v BBC Business Forms Ltd [1975] ICR 391, a decision of Phillips J sitting in the Queens Bench Division, which almost elevated procedural matters into points of law.  But that was before the establishment of the Employment Appeal Tribunal, before the well tried and tested rules of procedure and practice which have been operated by the Employment Appeal Tribunal and the employment tribunals now for many years, and it is totally clear that the order of witnesses is a matter primarily for the agreement of counsel but always subject to practice directions given by an employment tribunal or the chairman of an employment tribunal.  I see no basis on which it can be said that the Igen v Wong argument, even though it might well have been more thoroughly raised, if it was not raised, on 30 September, or even on appeal before Underhill J, can now justify reopening this issue. What it means is that this Tribunal will need to be careful in its sifting and assessment of the evidence so as to be sure what use they can make of it, as they ordinarily in any event would be doing.

24.	The submission by Miss Rahman, however, is a different one. That is that she would wish to hear the Appellant’s open case first, not because of Igen v Wong or anything of that kind, but because of her task as a Special Advocate. She would wish to know, before she comes to deal with the closed evidence, as much as she can about the open case of the Appellant, and she says she would like to hear the witnesses cross-examined on the open evidence by open Counsel, if I can so describe he or she who will be representing Mr Farooq at the Tribunal.  She refers to the fact that the ordinary procedure in SIAC is for the open evidence to be heard first.

25.	I am wholly unpersuaded that the procedure of SIAC must be imposed on the employment tribunals, but in any event I return to the point that this order has already been made and unsuccessfully appealed; and I certainly am unpersuaded that citation of the practice of SIAC, which apparently was not referred to before the Chairman, for good reason, namely because the special advocate had no role to play at that stage, makes all of the difference so far as reopening the order is concerned.  What is necessary, particularly in the light of the words of their Lordships’ House in MB, is for every possible step to be taken to ensure that this difficult procedure, as one which carries with it prima facie unfairness to a claimant, is as fairly operated as possible.  The reasons which the Chairman gave for rejecting the arguments before him, which have now become the subject of appeal, as to changing the provision for the order of open and closed evidence, are set out in paragraphs 7, 10, 25 and 29.  Once again they are, as Mr Engelman has said, brief, and he would submit not Meek-compliant, but I am again satisfied that they are compliant, in so far as the primary reason that the Chairman relied upon was the absence of any change of circumstance since the recent appeal before Underhill J and his own decision on 30 September.  He referred at paragraph 10 to the fact that he had thought when he made the original order that it would be of assistance to the lay members and the Tribunal as a whole in determining the element of the discrimination, to have heard the evidence:  but his primary decision is based upon no change of circumstance. 

26.	 I have considered carefully whether what has been said to me does amount to an important element, not previously referred to or relied upon because of the absence of the Special Advocate in the Underhill appeal, and such as to cause it to be necessary at the Appeal Tribunal level to reopen the failure to review by the Employment Tribunal Chairman in his decision of 25 October.  I am satisfied that the reasons put forward by Miss Rahman do not lead to that conclusion.  I have already referred to the fact that the Employment Tribunal does not need to follow the SIAC procedure. I can, in fact, see good arguments for the case going forward on the basis of the Tribunal hearing the substance of the closed evidence before then dealing with the oral part of the case so far as open evidence is concerned.  It will enable the Tribunal fully to understand what the nature of the case is on the closed side and thus the better appreciate any arguments by the Special Advocate as to unjustness or unfairness or inconvenience or inappropriateness, which she can then put forward to an informed Tribunal.  I can understand that there may well be the need for her to apply under Rule 8(5) of Schedule 2 to the Tribunal for the opportunity to take instructions on matters that arise during the closed hearing, so that she can deal more adequately with them, and so that, if necessary, the open hearing can be expanded as a result, if the application she makes is successful.  She may also be able to make applications that some part of the closed evidence should not remain closed because the Tribunal having heard it, and she having heard it, she would now argue that there was no justification for it having been closed to start with, or remaining closed.  She may also be able to make an argument that injustice cannot be done without some course or other, which she may suggest, being taken. But it will mean that she and the Tribunal will be fully informed as to what the nature of the evidence is. I see no advantage to her or to the Appellant if the oral evidence goes forward first. The nature of the oral evidence is known, and nothing additional is likely, in my judgment, to be learnt as a result of the hearing of the open evidence compared with the advantage of full disclosure to the Tribunal and to the Special Advocate of the closed evidence.  I can see that she may need to make application - as she no doubt will stay on for the open part of the hearing, having been present in the closed part - in the light of any matters that she hears, for the closed hearing to be reconvened, but that has been expressly allowed for by Mr Latham in paragraph 15 of his judgment.  He says this:
“Closed period evidence of at least two witnesses would start on 27 November 2007.  Thereafter open and closed hearings would be held as required.”

That shows, in my judgment, a flexible and sensible approach by the Chairman.  

27.	So far as the particular matter which she raised before me, namely as to her need, as she saw it, to hear how the open case was put and how the open advocate was going to cross-examine witnesses, I see no inhibition whatever, and after taking instruction, she confirmed that she now saw no inhibition, and Mr Bryant sees no inhibition, upon the Appellant supplying her with whatever he wishes so far as his case is concerned. He will obviously be supplying her with his open oral submissions. She already has the open witness statements. If the Appellant wishes to supply her with something more, including the nature of the questioning that his Counsel proposes to adopt in open hearing of the Respondent’s witnesses, which is something that she said she would have liked to have known about by sitting and listening, then that can be done also.  I do not see any inhibition whatever, as she feared might be the case, arising out of the wording of Rule 85 to her receiving communications from the excluded person for the purposes of better informing her for the closing hearing on matters which will be the subject matter of the open hearing. In those circumstances, if anything, in my judgment, it is advantageous to everyone to have the closed hearing first, but I can certainly see no basis for any fundamental flaw in an order which has already been unsuccessfully appealed, such as to justify it being reviewed at this stage.  

28.	The best time for matters to be reviewed under Rule 54 is and when the Tribunal becomes fully informed as to the facts.  I only add that I am wholly uninformed as to the facts.  I have not seen any of the closed evidence and consequently, even had the matter come properly before me on appeal, in so far as there having not been all these procedural hurdles in the way of the Appellant, I would still have concluded that the best person to resolve these issues under Rule 54 is the first instance tribunal with full knowledge of the facts, including the closed evidence.  In those circumstances this appeal is dismissed.