The Employment Tribunal Procedure Rules 2024

Schedule 1 Procedure in national security proceedings

Rule 1(3)(a) Application and interpretation of Schedule 1 1 (1) This Schedule applies to national security proceedings. (2) In this Schedule, “excluded person” means, in relation to any proceedings, a person who has been excluded from all or part of the proceedings by virtue of a direction under rule 93(1)(b) or an order under rule 93(2)(a) (read with rule 93(1)(b)). (3) Any reference in this Schedule to a rule is a reference to a rule in Parts 1 to 15 of these Rules. Sending of documents 2 The Tribunal must not send a copy of the response to any excluded person. Witness orders and disclosure of documents 3 (1) Where a person or their representative has been excluded under rule 93 (national security proceedings) from all or part of the proceedings and the Tribunal is considering whether to make an order under rule 33 (disclosure of documents and information) or 34 (requirement to attend to give evidence), a Minister (whether or not the Minister is a party to the proceedings) may make an application to the Tribunal objecting to that order. (2) If an order under rule 33 or 34 has been made, the Minister may make an application to vary or set aside the order. (3) The Tribunal must hear and determine the Minister’s application in private and the Minister is entitled to address the Tribunal. Special advocate 4 (1) The Tribunal must inform the relevant Law Officer if a party becomes an excluded person. (2) The relevant Law Officer may appoint a special advocate to represent the interests of a person in respect of those parts of the proceedings from which— (a) the person’s representative is excluded; (b) the person and their representative are excluded; (c) the person is excluded and is unrepresented. (3) A special advocate must be a person who has a right of audience in relation to any class of proceedings in any part of the Senior Courts or all proceedings in county courts or magistrates’ courts, or must be an advocate or a solicitor admitted in Scotland. (4) An excluded person (where that person is a party) may make a statement to the Tribunal before the commencement of the proceedings or the relevant part of the proceedings. (5) The special advocate may communicate, directly or indirectly, with an excluded person at any time before receiving material from a Minister in relation to which the Minister states an objection to disclosure to the excluded person (“closed material”). (6) After receiving closed material, the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (7) or (9) or an order of the Tribunal. (7) The special advocate may communicate about the proceedings with— (a) the Tribunal; (b) the Minister, or their representative; (c) the relevant Law Officer, or their representative; (d) any other person, except for an excluded person or their representative, with whom it is necessary for administrative purposes to communicate about matters not connected with the substance of the proceedings. (8) The special advocate may apply for an order from the Tribunal to authorise communication with an excluded person or with any other person. If such an application is made— (a) the Tribunal must notify the Minister of the request, and (b) the Minister may, within a period specified by the Tribunal, send to the Tribunal and the special advocate notice of any objection to the proposed communication. (9) After the special advocate has received closed material, an excluded person may only communicate with the special advocate in writing and the special advocate must not reply to the communication, except that the special advocate may send a written acknowledgment of receipt to the representative for the excluded person. (10) In this rule, “the relevant Law Officer” means, in relation to England and Wales, the Attorney General, and, in relation to Scotland, the Advocate General for Scotland. (11) Reference in Parts 1 to 15 of these Rules and this Schedule to a party or parties includes any special advocate appointed in particular proceedings, except for references in rules 4, 6(2)(c), 35, and 37(2) and (3), the first reference in rule 38, and references in rules 39, 40, 47, 62, 64, 72 to 82, 92 and 95. Hearings 5 Subject to any order under rule 49 (privacy and restrictions on disclosure) or any direction or order under rule 93 (national security proceedings), any hearing must take place in public, and any party may attend and participate in the hearing. Reasons in national security proceedings 6 (1) The Tribunal must send a copy of the written reasons given under rule 60 (reasons) to the Minister. (2) The Tribunal must allow 42 days from the date that a copy of the written reasons is sent under paragraph (1) for the Minister to make a direction under paragraph (4). If after this period the Minister has not made a direction, the Tribunal may send the written reasons to each party and where the written reasons relate to a judgment, enter them onto the Register. (3) If the Tribunal considers it expedient in the interests of national security, it may by order take steps to keep secret all or part of the written reasons. (4) If the Minister considers it expedient in the interests of national security, the Minister may direct that the written reasons— (a) must not be disclosed to specified persons and require the Tribunal to prepare a further document which sets out the reasons for the decision, but omits specified information (“the edited reasons”); (b) must not be disclosed to specified persons and that no further document setting out the reasons for the decision should be prepared. (5) Where the Minister has directed the Tribunal to prepare the edited reasons, the presiding member must initial each omission. (6) Where a direction has been made under paragraph (4)(a), the Tribunal must— (a) send the edited reasons to the specified persons, (b) send the edited reasons and the written reasons to the relevant persons listed in paragraph (8), and (c) where the written reasons relate to a judgment, enter the edited reasons on the Register but must not enter the written reasons on the Register. (7) Where a direction has been made under paragraph (4)(b), the Tribunal must send the written reasons to the relevant persons listed in paragraph (8), but must not enter the written reasons on the Register. (8) The relevant persons are— (a) the respondent or the respondent’s representative, provided that they were not specified in the direction made under paragraph (4), (b) the claimant or the claimant’s representative, provided that they were not specified in the direction made under paragraph (4), (c) any special advocate appointed in the proceedings, and (d) where the proceedings were referred to the Tribunal by a court, to that court. (9) Where written reasons or edited reasons are corrected under rule 67 (correction of clerical mistakes and accidental slips), the Tribunal must send a copy of the corrected reasons to the same persons who had been sent the written reasons or edited reasons respectively.