The Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 2001

Insertion of rules 7A and 7B into Schedule 1

4.  After rule 7 of Schedule 1, insert—

“Special advocate

7A.—(1) In any proceedings in which there is an excluded person the tribunal shall inform the Advocate General of the proceedings before it with a view to the Advocate General, if he thinks it fit to do so, appointing a special advocate to represent the interests of the applicant in respect of those parts of the proceedings from which—

(a)any representative of his is excluded;

(b)both he and his representative are excluded; or

(c)he is excluded, where he does not have a representative.

(2) A special advocate shall be—

(a)an Advocate; or

(b)a solicitor who has by virtue of section 25A of the Solicitors (Scotland) Act 1980(1) rights of audience in the Court of Session or the High Court of Justiciary.

(3) Where the excluded person is the applicant, he shall be permitted to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.

(4) Except in accordance with paragraphs (5) to (7), the special advocate may not communicate directly or indirectly with any person (including an excluded person)—

(a)(except in the case of the tribunal and the respondent) on any matter contained in the particulars referred to in rule 3(1B)(b), or

(b)(except in the case of a person who was present) on any matter discussed or referred to during any part of the proceedings in which the tribunal sat in private pursuant to a direction of the Minister under rule 8(1)(a) or an order of the tribunal under rule 8(2)(a) read with rule 8(1)(a).

(5) The special advocate may apply for directions from the tribunal authorising him to seek instructions from, or otherwise to communicate with, an excluded person—

(a)on any matter contained in the particulars referred to in rule 3(1B)(b), or

(b)on any matter discussed or referred to during any part of the proceedings in which the tribunal sat in private as referred to in paragraph (4)(b).

(6) An application under paragraph (5) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and set out the grounds of the application.

(7) The Secretary shall notify the Minister of an application for directions under paragraph (5) and the Minister shall be entitled to address the tribunal on the application.

(8) In these rules, in any case in which a special advocate has been appointed to represent the interests of the applicant in accordance with paragraph (1), any reference to a party shall (save in those references specified in paragraph (9)) include the special advocate.

(9) The references mentioned in paragraph (8) are the following, namely those in rule 2(1)(b), 2(3), 3(3), 4(7)(a), 6(1) (on the second occasion “party” appears), 7(4) (on the second and third occasions “party” appears), 7(5), 7(6) (on the second occasion “party” appears), 7(7) (on the first and third occasions “party” appears), 7(8), 8(1), 8(3) (on the first occasion “party” appears), 10(7), 11(3), 12(3)(b), 14, 15(3), 15(4), 19(1), 23(4)(a), 23(4)(e) (on the second occasion “party”appears), 23(4) (in the full out words) and 23(10).

Reasons for the tribunal’s decision in national security cases

7B.—(1) This rule applies to the document setting out the reasons for the tribunal’s decision prepared under rule 12(3) in any particular Crown employment proceedings in which a direction of a Minister of the Crown has been given under rule 8(1)(a), (b) or (c), or an order of the tribunal has been made under rule 8(2)(a) read with 8(1)(a), (b) or (c).

(2) Before the Secretary enters the document referred to in rule 12(3) in the Register he shall send a copy of that document to the Minister.

(3) If the Minister considers it expedient in the interests of national security he may—

(a)direct the tribunal that the document referred to in rule 12(3) shall not be disclosed to any person who was excluded from all or part of the proceedings and to prepare a further document setting out the reasons for its decision but with the omission of such of the reasons as are specified in the direction;

(b)direct the tribunal that the document referred to in rule 12(3) shall not be disclosed to any person who was excluded from all or part of the proceedings but that no further document setting out the tribunal’s reasons for its decision should be prepared.

(4) Where the Minister has directed the tribunal in accordance with paragraph (3)(a), the document prepared pursuant to that direction shall be signed by the chairman and marked in each place where an omission has been made.”