Open Justice in the Employment Tribunal

Tribunal Tweets prohibited from reporting

This morning Tribunal Tweets, a citizen journalist collective that ‘live-tweets’ court and tribunal hearings of public interest, was prohibited from doing so in McBride v Scottish Government. It is entirely unclear what legal power the Judge used to do this and consequently unclear whether this was lawful.

The collective has built up a stellar reputation for accurate, responsible reporting on matters of public interest with careful attention paid to instructions relating to privacy and anonymity. It has been praised by judges on several occasions, including by the Employment Appeal Tribunal.

Tribunal Tweets have a practice of requesting permission from Courts and Tribunals when they intend to live-tweet a hearing. Virtually every time that this is done, permission has been granted, including in the most recent Scottish case of Adams v Edinburgh Rape Crisis Centre. Last week it looked as though permission would be denied when the Judge invited Tribunal Tweets to make submissions as part of their request. Tribunal Tweets then instructed Naomi Cunningham, veteran barrister in this space and counsel for Roz Adams in that previous case.

In my view, this approach is entirely misconceived. Tribunal Tweets, out of an abundance of caution and - I suspect - sincere politeness, have been asking permission to do something they do not need special permission to do. The default in our legal system is not secrecy. Nor is it censorship. While Courts and Tribunals have powers to restrict reporting in the interests of justice, these powers must be specifically invoked and their use justified.

The Applicable Law

The Human Rights Act 1998 makes it unlawful via s.6 for any public authority, including Courts and Tribunals, to act in a way which is incompatible with a right protected under the European Convention on Human Rights. Article 10 protects the right to freedom of expression:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

It it important therefore to note that Article 10 protects not just the right to voice opinions but also to receive and impart information. This includes not only the right of Tribunal Tweets to impart information in the form of a contemporaneous report of this case, but also the right of many people who read Tribunal Tweets to receive this information.

Preventing Tribunal Tweets from live-tweeting this hearing interfered with their Article 10 rights but also interfered with the Article 10 rights of many people wishing to follow this case on social media. While the tribunal was available to watch remotely, the access link was only available upon email request to the tribunal services and this made it more cumbersome to receive live information about the hearing than it would otherwise have been.

Interference with Article 10 can be justified but that must be established and not presumed. Article 10(2) states:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The first requirement that must be met is that the interference is ‘prescribed by law’. Ordinarily this means that there must be some legal power or authority that permits, in this case the Employment Tribunal, to intervene and prevent reporting.

Rule 50 of the Employment Tribunals Rules of Procedure, found at Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 empowers the tribunal to make an order preventing or restricting the public disclosure of any aspect of proceedings “so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person”.

Under rule 50(2), a tribunal considering whether to make such an order must give full weight to the principle of open justice and to the requirements under Article 10 of the European Convention on Human Rights.

Rule 50 would clearly count as relevant law such that an order properly and lawfully made under it would ensure that interference with Article 10 was prescribed by law. It is not clear, however, that the Tribunal in this case made an order under rule 50. The Tribunal appears to have been operating under the presumption that Tribunal Tweets had to request permission to live-tweet and that the decision to grant that permission is within the discretion of the Tribunal. This cannot be correct. Without expressly making a rule 50 order, justified with reference to the full weight that must be given to the principle of open justice and the requirements under Article 10, the Tribunal may have made an error of law and acted ultra vires - beyond it’s lawful powers.

The considerations that must be accounted for when deciding whether a derogation from open justice is necessary are set out in the Practice Guidance (Interim Non-disclosure Orders) [2012] 1WLR 1003:

[9] Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see art.6.1 of the Convention, CPR r. 39.2 and Scott v Scott [1913] A.C. 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (2009) 50 EHRR 920 [75]ff; Donald v Ntuli (Guardian News & Media Ltd intervening) [2011] 1 W.L.R. 294 [50].

[10] Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R. v Chief Registrar of Friendly Societies Ex p. New Cross Building Society [1984] Q.B. 227, 235; Donald v Ntuli [52]–[53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

[11] The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M v W [2010] EWHC 2457 (QB) [34].

[12] There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] E.M.L.R. 419 [50]–[54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent.

[13] The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott (above) 438–439, 463, 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] Q.B. 103 [2]–[3]; Secretary of State for the Home Department v AP (No.2) [2010] 1 W.L.R. 1652 [7]; Gray v W [2010] EWHC 2367 (QB) [6]–[8]; and H v News Group Newspapers Ltd (Practice Note) [2011] 1 W.L.R. 1645 [21].

[14] When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of art.8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their art.8 Convention right is entitled. The proper approach is set out in H’s case.

Before making a Rule 50 Order, the judge must give proper weight to these considerations, including the approach set out in H v News Group Newspapers Ltd [2011] 1WLR 1651, where Lord Neuberger of Abbostbury noted:

Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions.

It is unclear to me whether the Tribunal in this case even saw itself as making a Rule 50 Order, having framed this matter as one involving refusal of permission that was asked for. Without such an order, there is no lawful basis for the interference with Article 10 which has just occurred. Even with such an order, the judge must be satisfied that the order is lawful and ECHR compliant. Even if the judge is satisfied that it is, that judgment may be mistaken in law for failing to give due weight to Article 10.

In my view, interference with Article 10 is unjustified in this case. It is unclear that it is prescribed by law, given that we can’t quite be sure at this point whether a Rule 50 Order has even been made. Even if it were, interference must then be in pursuit of a legitimate aim; rationally connected to that aim; the least onerous way of achieving that aim; striking a fair balance between the rights of Tribunal Tweets/those receiving information from them and the general interest in maintaining the authority and impartiality of the judicial system

There are clearly less intrusive means of maintaining this authority and impartiality: adequate instructions to witnesses as has been done in many other cases that Tribunal Tweets has reported on. For now, it appears as though this restriction will remain in place. I am very interested in reading the reasoning behind it, should it be provided.