Privacy and restrictions on disclosure in Tribunals

As a postscript to my post on open courts and the ‘right to be forgotten’:

PA Media Lawyer has highlighted that a new Rule 50 of the Employment Tribunal Regulations 2013 stipulates a new provision for “Privacy and restrictions on disclosure” (PA: subscription required).

In Mr Justice Underhill’s Review of the employment tribunal rules published in 2012 he discussed privacy, restricted reporting orders and anonymity, finding that (Meeja Law’s emphasis):

The current Rules provide a limited and sharply-defined regime governing where anonymity and restricted reporting orders can be made, deriving from the prescriptive terms of sections 11 and 12 of the Employment Tribunals Act 1996. These have been held by recent case-law to be out of step with the requirements both of the Human Rights Act and of EU jurisprudence. Our proposed new rule 55 provides for a more flexible regime which allows Tribunals to take appropriate steps to balance the important principles of open justice and freedom of expression on the one hand and of privacy and effective justice on the other. The [proposed] rule goes beyond the explicit rule-making powers conferred by the 1996 Act but we have no doubt that it is within your powers under the Human Rights Act. The complications of the different vires have regrettably made the rule rather more elaborate than we would have wished. It is perhaps worth saying that this is not a case where the requirements of the ECHR compel a British legislator or tribunal to take steps that are contrary to domestic policy: the existing regime was poorly conceived and drafted and required revision in any event.

The government’s consultation on the review [PDF] asked whether respondents agreed with the recommended approach to make the privacy and restricted reporting regime “more flexible“. Of 48 responses, 36 said yes, 4 said no and 8 were unsure. The 4 ‘nos’ were in the Business Representative organisation / TU category.

The majority of responses (75% ) to this question welcomed the new rule which is a simplification of what was considered by many to be an overly prescriptive provision. It was widely felt that a more generic rule for when the proceedings, or part of the proceedings, could be held in private would allow judges the discretion they need to decide on the most appropriate action in individual cases.

However, we did receive strong representations from groups representing the media, who felt that this new approach was contrary to the principles of open justice and out of step with the prevailing degree of openness witnessed in other courts and tribunals. These responses considered that a more flexible privacy regime represented a move towards an augmentation in the number of closed hearings, with parties putting undue pressure on judges to restrict the reporting of tribunals for fear of damage to a business’s reputation if cases were widely reported. These responses also demanded a fuller explanation of why Government was taking this approach to the privacy rules.

In response, in March 2013, the Government said (Meeja Law’s emphasis):

It is not the Government’s intention that the new rules on privacy should restrict the ability of the media and other commentators to report on proceedings where it is appropriate to do so. The old rules on privacy and restricted reporting were designed to deal with specific instances where hearings should be held in private, and covered proceedings that involved, for the main part, allegations of sexual misconduct or disability discrimination. Mr Justice Underhill felt that it was important that his review brought the provisions on privacy in Employment Tribunals more into line with the requirements of the Human Rights Act 1998 and jurisprudence of the European Court of Human Rights and new rule (new rule 60) is therefore less prescriptive. Whilst the suggested changes to the rules widen the existing legislative provisions in this area, and give judges more discretion and flexibility in the rules for deciding whether anonymity or restricted reporting orders are required, such power already exists (see the case of F v G [2012] ICR 246). In F v G, the Employment Appeal Tribunal said that where anonymisation or reporting restrictions are needed to protect a party’s rights under article 8 of the European Convention on Human Rights, an Employment Tribunal can use its general powers under rule 10 to order such privacy measures. Nonetheless, it is not the intention that simply because a power is stated explicitly in the new rules it will be exercised substantially more frequently than it currently is. In making these recommendations, Mr Justice Underhill has sought to balance the needs for open justice on one side with the need for privacy and an effective tribunal system on the other.

Government believes that Mr Justice Underhill’s suggested rule on privacy and restricted reporting strikes the difficult balance between the need for the justice system to be as open as possible whilst also ensuring that judges have the provisions they need to manage sensitive cases in the most efficient and effective way. The new rule on privacy is much simpler to understand for all parties, and provides judges with the clear case management powers they need to approach sensitive claims on a case by case basis. However, Government recognises the concerns of the media around this amendment, and agrees that it should not become the normal practice of tribunals to hold proceedings in private. As it is now, reporting should only be restricted where it is in the interests of justice to do so. To address these concerns the new draft of the rules makes clear that in making a decision on privacy, the tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

These provisions are now Rule 50 in the The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, entitled “Privacy and restrictions on disclosure” (Meeja Law’s emphasis):

50.—(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include—

(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;

(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;

(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;

(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.

(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.

(5) Where an order is made under paragraph (3)(d) above—

(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.

(6) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998(22).

via The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

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