Various vs Security Service and Government Communications Headquarters

This case involved multiple complaints brought before the Investigatory Powers Tribunal (IPT) concerning vetting issues by the Security Service (MI5) and the Government Communications Headquarters (GCHQ).

TLDR:

• Tribunal examined jurisdiction over vetting complaints.
• Considered applicability of Article 6 of the ECHR to vetting complaints.
• Discussed principles of procedural fairness in vetting decisions.

The case involved four individual complaints selected as test cases to address preliminary issues common to all vetting complaints. The claimants were individuals who had either been refused Developed Vetting (DV) clearance or had their Security Clearance (SC) withdrawn by MI5 or GCHQ.

The Tribunal first addressed its jurisdiction in relation to vetting complaints, affirming that it has exclusive jurisdiction over claims against the intelligence services brought under section 7(1)(a) of the Human Rights Act 1998 (HRA). The Tribunal also clarified that it does not have jurisdiction over statutory employment rights, such as unfair dismissal and work-related discrimination claims under the Equality Act 2010.

Regarding the applicability of Article 6 of the European Convention on Human Rights (ECHR), the Tribunal acknowledged that there are circumstances where Article 6 applies to vetting decisions, particularly when the decision impacts existing employment. The Tribunal emphasized that while Article 6 does not require full disclosure of all material to the affected individual, the overall procedure, including the opportunity to bring a complaint before the Tribunal, ensures fairness.

The Tribunal also considered other principles of procedural fairness, noting that while there is no absolute right to be given reasons for a refusal of vetting clearance, as many and as detailed reasons as possible should be provided, consistent with national security. The Tribunal highlighted that fairness may require the provision of a gist of the concerns and an opportunity to respond, particularly when the refusal of clearance could cause serious damage to the individual's livelihood and reputation.

The Tribunal's ruling provided important guidance on the procedural aspects of vetting decisions, emphasizing the balance between national security interests and the rights of individuals. The Tribunal's decision is expected to have significant implications for future vetting complaints and the handling of such cases by the intelligence services.

Legal representatives: E appeared in person, Adam Heppinstall KC and William Hays (instructed by the Treasury Solicitor) for the Respondents, Julian Milford KC as Counsel to the Tribunal.

Judicial Panel: LORD JUSTICE SINGH (PRESIDENT), LADY CARMICHAEL, MR JUSTICE CHAMBERLAIN.

Case Citation Reference: [2022] UKIP Trib 3