Christine Lee v Security Service
[2023] UKIPTrib 8
EFG v The Security Service
2 August 2024
[2024] UKIPTrib 2
Investigatory Powers Tribunal
A man challenged the fairness of a government security check affecting his job. He wanted a court order to stop the check, but the judge refused, saying it was better to let the process finish and deal with any problems afterward. The judge thought some of the man's arguments were weak.
Key Facts
- •Complainant (EFG) challenged the procedural fairness of a developed vetting (DV) clearance review process conducted by the Security Service.
- •EFG sought interim injunctions to restrain the review process and prevent termination of his employment.
- •The review process began on August 5, 2022, and was ongoing in November 2023 due to various factors, including a civil court challenge.
- •EFG alleged procedural unfairness, including the use of information obtained without caution, failure to implement occupational health recommendations, difficulties accessing redacted material, and limited access to independent legal advice.
- •The Security Service disputed EFG's factual claims and argued for a stay of proceedings to allow internal processes to conclude.
Legal Principles
Jurisdiction of the Investigatory Powers Tribunal (IPT) to grant interim relief in proceedings under s. 65(2)(a) RIPA is conferred by s. 67(6) RIPA. The application of principles for determining such proceedings mirrors that of judicial review.
Regulation of Investigatory Powers Act 2000 (RIPA), sections 65(2)(a), 67(2), 67(6)
The principles for interim relief in judicial review, as summarized in R (Public and Commercial Services Union) v Secretary of State for the Home Department [2022] EWCA Civ 840, including the American Cyanamid test (serious question to be tried, adequacy of damages, balance of convenience) apply to IPT applications.
R (Public and Commercial Services Union) v Secretary of State for the Home Department [2022] EWCA Civ 840
In public law claims, a 'strong prima facie case' is a significant factor in the balance of considerations for granting an interim injunction, though not a strict threshold test.
R (Governing Body of X) v Office for Standards in Education [2020] EWCA Civ 594
Courts should be slow to intervene in ongoing employment procedures, particularly where internal processes might resolve the dispute; micromanagement is to be avoided. A contractual implied duty of trust and confidence may impose an obligation to act fairly, but this is a high threshold.
Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC 3096; Gregg v Northwest Anglia NHS Trust [2019] ICR 1279
Article 6 ECHR applies to vetting processes with a decisive impact on employment, but doesn't require disclosure of all material or legal representation in all circumstances. The right to legal representation depends on the specifics of the case.
Various Claimants v (1) Security Service (2) GCHQ [2022] UKIP Trib 3; R(G) v Governors of X School [2012] 1 AC 167
Claims under Articles 8 and 14 ECHR regarding reasonable adjustments or intrusive questioning require careful consideration of whether they are properly brought to the IPT, rather than under the Equality Act 2010.
Various Claimants (paragraph 40)
Outcomes
The IPT refused the complainant's applications for interim injunctive relief.
While acknowledging a serious question for trial, the balance of convenience favored the respondent. Factors considered included potential prejudice to the complainant, the availability of remedies within the ongoing process, the public interest in concluding the vetting process, and the perceived weakness of some aspects of the complainant's case.
Similar Cases
Gilbert Robertson v Information Commissioner
[2024] UKFTT 1068 (GRC)
Solomon Browne v The Information Commissioner
[2024] UKFTT 428 (GRC)
John Alexander Melvin Hemming v Independent Office of Police Conduct
[2022] EWHC 3307 (Admin)
Radoslaw Kaleta, R (on the application of) v The Judicial Appointments and Conduct Ombudsman
[2024] EWHC 1038 (Admin)