EAT considers the effect of S.56 Investigatory Powers Act 2016 in Employment Proceedings – NCA v DP and others
S.56 Investigatory Powers Act 2016 (IPA) provides that no evidence may be adduced, question asked, disclosure made, or thing done in legal proceedings which either (a) discloses, in circumstances from which its origin in interception-related conduct may be inferred, any content of an intercepted communication or (b) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.
In four linked appeals in the Employment Appeal Tribunal, the EAT considered the impact of S.56 IPA in the neither confirmed nor denied scenario of individuals who worked in roles dealing with such material.
The NCA argued that the impact of s.56 IPA in such proceedings was that any Employment Tribunal proceedings involving such individuals would have to be heard in closed proceedings, pursuant to paragraphs 14 and 15 of Schedule 3 IPA. As a result, those individuals would be excluded from the proceedings, with no evidence being disclosed to them.
The EAT considered whether the exceptionally wide literal interpretation was consistent with Article 6 ECHR. It noted that in normal closed proceedings, operating under R.93 Employment Tribunal Procedure Rules 2024, the Employment Judge can control what material is disclosed and what remains closed, by balancing the interests of national security against the principles of open justice and the employee’s Article 6 rights. Conversely, the proposed approach under s.56 IPA would remove any ability for the Employment Judge to undertake such a balancing act, since it would mandate closed proceedings.
The EAT sought to solve the problem having regard to its interpretative obligation under s.3 Human Rights Act 1998. It concluded that s.56 IPA should be construed as only applying to “particular” interception-related conduct. Such conduct could include the interception of a specific communication or group of communications, interception-related conduct targeting individuals or groups, and various different types of interception-related conduct. The Employment Tribunal would have to determine whether there had been such particular interception-related conduct. That determination would allow it to conduct a balancing of national security, open justice and Article 6 ECHR, in a manner similar to the approach adopted under R.93 Procedure Rules. The EAT noted that its approach went with the grain of the IPA and was consistent with the legislative intent, namely the imposition of a proportionate protection of national security, rather than a blanket exclusion of claimants from hearings which only involve a broad consideration of their job role in circumstances that will often not pose a risk to national security.
David Lemer acted as Special Advocate for all four non-state parties, instructed by the Special Advocates Support Office.
The Judgment is available here.
