Motion to Approve
That the rules laid before the House on 27 June be approved.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments
My Lords, I beg to move that the Civil Procedure (Amendment No. 5) Rules 2013 and the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 be approved. The Civil Procedure (Amendment No. 5) Rules 2013 amend the Civil Procedure Rules 1998 to make provision for closed material procedures in civil proceedings in England and Wales pursuant to the provisions of Part 2 of the Justice and Security Act 2013. The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 similarly amend the rules of the Court of Judicature to make provision for CMPs in civil proceedings in Northern Ireland brought in under the same Act.
I am sure that many of your Lordships present will be very familiar with the background to these rules: the provisions of Part 2 of the Justice and Security Act, which were debated thoroughly and considerably in your Lordships’ House, but perhaps I may set the context. Part 2 of the Act makes provision establishing a closed material proceedings regime for civil proceedings in the High Court, the Court of Appeal, the Court of Session, and the Supreme Court. CMPs allow national security-sensitive material which is held by a party and relevant to the proceedings to be taken into account through its disclosure to the court and a special advocate representing the interests of the other party. The other party cannot themselves see the material.
It is worth reiterating at the outset that CMPs will be available only in civil proceedings—cases where someone is suing or challenging the actions or decisions of the Government. They will not be available for inquests or for criminal trials and will not allow a person to be found guilty of a crime without knowing the evidence against him or her.
A CMP will be available in relation to any proceedings only if the court makes a declaration that the proceedings are ones in which it should be possible to apply to disclose material by way of a CMP. This can happen only if the court is satisfied not only that the material in question is relevant and that its disclosure would be damaging to the interests of national security but that it would be in the interests of the fair and effective administration of justice for a CMP to be available in principle in those proceedings. In cases where the availability of CMP has been requested by the Secretary of State, the court must also be content that he or she has first considered a claim for public interest immunity in respect of the sensitive material in issue.
If those tests are met, the court may—but, equally, may not—grant a CMP declaration which establishes the principle that closed proceedings may be used in the relevant parts of the case where sensitive material would be in issue. Of course, a special advocate will already have been appointed to represent the interests of the other party. The party holding the sensitive material must then apply again for individual pieces of material to be held in closed proceedings and, in each instance, the judge must decide whether or not the disclosure of the material would damage national security. If not, it is heard in open proceedings; and, if it would and should be heard in closed proceedings, whether it may be summarised by a gist disclosed in open—that is, to all parties to the litigation.
Once that stage—known as pre-trial disclosure—is complete, the judge must review the original declaration to ensure that the tests are still met. If not, he must revoke the declaration. Indeed, the judge may revoke the declaration at any point if he or she considers that it is no longer in the interests of the fair and effective administration of justice.
Turning to the specific rules, the rules before your Lordships’ House this evening insert a new Part 82 in respect of England and Wales into the Civil Procedure Rules and make consequential amendments and modifications.
Section I of Part 82 contains rules about the scope, interpretation and application of the part. Rule 82.2 modifies the overriding objective of the Civil Procedure Rules for the purposes of Part 82 by placing a duty on the court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty.
The overriding objective continues to apply, so the court must still further the objective of dealing with the case justly, but it must also ensure in doing so that information is not disclosed where such disclosure would be damaging to the interests of national security. That, and the rest of Part 82, is, moreover, subject to Section 14(2) of the 2013 Act or in rules made by virtue of them is to be read as requiring the court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.
A recent briefing published by Justice on the rules appears to suggest that new Rule 82 provides for the overriding objective and other provisions of the Civil Procedure Rules to be set aside. This is not the case. The overriding objective of the Civil Procedure Rules is still applicable, and is still the objective of,
“enabling the court to deal with cases justly”,
and, since the amendments made pursuant to Lord Justice Jackson’s recommendations, “at proportionate cost”. The court is still enjoined to deal with cases justly, subject to new Rule 82.2. It is not enjoined to ensure non-disclosure at the expense of dealing with the case justly.
The Justice briefing also appears to suggest that the rules somehow override or displace the provisions of the statute under which they are made. Again, that is not nor can it be the case. The rules must be read in conjunction with the primary legislation from which they flow, and cannot override that primary legislation. Section 11(4)(a) of the Act provides that,
“proceedings on, or in relation to, an application for a declaration under section 6”,
are to be treated as Section VI proceedings for the purposes of Sections 8 to 14. Section 8(1)(c) provides that rules of court must secure,
“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.
Rules of Court in relation to proceedings on, or in relation to an application for, a declaration under Section VI must accordingly so secure.
It is important to point out that that does not displace the requirements of Sections 6(3) to (5), which provide that the court may make a Section VI declaration if the condition in both Section 6(4) and Section 6(5) are met. The condition in Section 6(5) is,
“that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”,
and that is accordingly a precondition for the making of a declaration. The treating of the application for the declaration as Section 6 proceedings secures that sensitive material at issue in the application for the declaration is not disclosed contrary to the interests of national security; but it does not secure that the second condition does not have to be met. It is also worth remembering that the court can revoke a declaration at any point if it believes that it is no longer in the interests of the fair and effective administration of justice. Those provisions in Section 7 changed the architecture of the legislation following amendments passed in your Lordships’ House, reflecting concerns of the Joint Committee on Human Rights. They were considered by the Government and the new architecture was brought in when the Bill was in the other place.
Section II of Part 82 contains general provisions applying to all proceedings to which Part 82 applies. These include provision for hearings, including the circumstances in which the court is to conduct closed hearings. Any person who intends to make an application under Section 6(2) must inform the other parties to the relevant civil proceedings. That is to ensure that all parties to litigation will know whether or not a CMP applies: under the Act, the fact of a CMP can never be a secret. It applies to closed judgments or closed parts of judgments, if it is not possible for the court to give reasons without disclosing information in a way that would be damaging to the interests of national security.
Section III of Part 82 contains rules about the making and consideration of an application for a declaration that the proceedings are proceedings in which a closed material application may be made to the court—in other words, a Section 6 application. They include the following.
Any person who intends to make an application under Section 6(2) must serve written notice of that intention on the court and on every other party to the relevant civil proceedings and—if the Secretary of State is not a party—on the Secretary of State him or herself, within 14 days. That is to ensure that no CMP under the Act can be held without notice. Notification of the Secretary of State, when not a party to proceedings, is required to allow for circumstances in which the Government have no direct involvement in the case but need to be engaged in view of their responsibility for national security; for instance, an internal dispute involving a defence contractor. The applicant must provide a statement of reasons to support the application, any additional written submissions and the material in relation to which the court is asked to find that the first condition in Section 6 of the Act is met.
Where the applicant is the Secretary of State, the application must also provide the Secretary of State’s written reasons for not making, or not advising another person to make, a claim for public interest immunity in relation to the material on which the application would be based in accordance with Section 6(7).
Section IV of Part 82 contains rules about the review and revocation of declarations made under Section 6 of the Act. If a court considers that a Section 6 declaration is no longer in the interests of the fair and effective administration of justice in the proceedings it must notify the parties, the Secretary of State, if not a party, and the special advocate who is conducting a review of the declaration made under Section 6 and invite them to make submissions within 28 days. The court must then give directions regarding a hearing to determine the outcome or determine the issue without a hearing. Similar steps must be followed in the case of an application for revocation of declaration, as opposed to the court considering revocation of its own motion.
Section V of Part 82 contains a rule about the making and consideration of an application under Section 18 of the 2013 Act to have set aside a certificate under Section 17(3)(e) of the Act; that is, certifying that the Secretary of State considers that it would be contrary to the interests of national security, or the interests of the international relations of the United Kingdom, for a person to be ordered to disclose material pursuant to the Norwich Pharmacal jurisdiction or any similar non-statutory disclosure jurisdiction of the court. Section VI makes provision in relation to the Court of Appeal.
Your Lordships will see that the draft rules for Northern Ireland are very similar to those for England and Wales, with minor drafting changes to take account of variations in terminology and some other minor differences. Neither set of rules will apply to the Supreme Court. Separate rules will be brought forward for this purpose.
As required by the Act, both sets of draft rules were also subject to consultation with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland. In addition, the Government placed a version of the draft rules in the Library of this House on 11 June. I wrote to a wide range of Members of your Lordships’ House who had played an active part in the passage of the Bill to notify them of this. We also shared a draft on 3 June with the special advocates, who subsequently declined to provide formal comments. Neither of these were statutory requirements or common procedure in relation to secondary legislation of this type.
The rules were also shared in draft with the Joint Committee on Statutory Instruments, which did not subsequently draw them to the special attention of either House, and the Secondary Legislation Scrutiny Committee, which, again, did not draw them to the special attention of the House, although it mentioned the Justice briefing on the England and Wales rules in its eighth report. In view of this, we believe it is not correct to assert, as Justice has done, that these rules were,
“hastily thrown together … with little consultation”.
In conclusion, the rules before us today will sit alongside the Justice and Security Act to provide a framework to ensure that allegations which are made against the Government are fully investigated and scrutinised by the courts, while addressing the potentially severe implications for national security that could arise if sensitive intelligence secrets were disclosed in open court. Further, your Lordships may be interested to know that the first application for a declaration under Section 6 of the Act has in fact been made by an individual claimant in judicial review proceedings. It arises from a successful PII application made by the Government, the claimant arguing that it would in fact be fairer for the material in question to be admitted into a closed material proceeding rather than excluded by way of PII. I commend these rules to this House and I beg to move.
Amendment to the Motion
At end to insert “but that this House regrets that the rules do not reflect the significance of the introduction of closed material procedures to civil proceedings or the concerns expressed by Special Advocates”.
My Lords, in moving the amendment in my name, I begin by thanking the noble and learned Lord, as I am sure other noble Lords would wish to do, for his thorough and comprehensive introduction of the rules—without so much as a pause for breath in the 12 minutes or so that he addressed the House. It was, as ever, a compelling performance.
The controversial proposal to extend closed material procedures from the limited category of cases where they previously existed into the area of civil law claims involving the Government evoked much anxious debate in and well beyond this House. Today is not the occasion to revive that debate but rather to consider the nature and effect of the rules of court designed to implement Parliament’s decision, enshrined in the Act which received Royal Assent on 25 April. Notwithstanding the noble and learned Lord’s closing remarks, it must be said that the process itself might be described as something of a closed and rushed parliamentary procedure, since the rules were tabled on 26 June after what appears to have been a minimal consultation period of a mere 10 working days after draft rules were placed in the Libraries of both Houses, and that without any prior announcement.
Given the long gestation period of the legislation, it is surprising that more time was not made available to consult on rules which, on any view, reflect a substantial departure from the principles of our jurisprudence, as does the Act. In particular, they appear to qualify the overriding principle, set out in Civil Procedure Rule 1, that the courts will deal with cases justly and at proportionate cost. Did the Government think to consult, for example, the Joint Committee on Human Rights, the Constitution Committee of this House or the Justice Select Committee, all of which expressed significant views on the legislation in the course of its parliamentary journey? Who else was consulted and with what response? The noble and learned Lord referred to the Delegated Legislation Committee and so on. Were other bodies consulted? Did any body in fact respond in this rather quick consultation period?
As ever, the Government have been quick to find justification for their haste. There are, we are told, some 20 civil cases and some applications for judicial review waiting in the wings—one of which, we understand, has now been initiated. Are these the cases that we heard about between the publication of the Government’s Green Paper and the subsequent passage of the Bill, complete with dire warnings about the likelihood of having to pay millions of pounds, which might find their way into the hands of unidentified terrorists? If so, can it really be the case that a few weeks longer to consider the rules would have made much difference? If not, a fortiori, there would surely have been even less of a problem.
Before I return to the important issue of the effect of the rules as drafted on the principles enshrined in the Act, governing the basis on which the courts have to determine whether to grant an application of closed material procedures, it is necessary to consider some other important issues. The Ministry of Justice effectively appears to have transposed to this new arena of civil law cases the procedures applying in the very different world of special immigration appeal courts. In so doing, as Justice and the Law Society have pointed out, they have paid no regard to the way in which ordinary civil claims are conducted. How, for example, could the so-called Part 36 procedure work, under which an offer to settle can be made by a party, with adverse financial consequences for the other party if the offer is refused and not subsequently beaten at trial? Should this procedure be available where closed material procedures apply, when by definition the adverse party cannot properly assess the strength of the other’s case? If so and it could apply, what modification could be made to it?
A number of other issues have been raised. For example, Rule 82.7 requires notice of hearings to be served on the parties and the special advocate. There was considerable support in debate in your Lordships’ House for the media to be informed of the intention to use CMPs. Will the Government consider a further amendment to the rules to this effect, or will they provide an extra parliamentary process to secure that possibility?
Paragraph (3) of Rule 82.12 permits the court to receive evidence not otherwise admissible. Section 6(4)(b)(iii) of the Act provides that intercept evidence will become admissible. What other categories of inadmissible evidence does the noble and learned Lord envisage will be permitted under this rule or, conversely, what will continue to be excluded under this rule? Paragraph (7) of Rule 82.14 allows but does not require a summary of material not disclosed under CMP to be provided to a party, even where national security material is not included. Again, will the noble and learned Lord look at this, especially where national security material will not be involved? The rule may follow the wording of the Act, but it is open to the Government to indicate that they would not rely on a merely permissive obligation.
Of perhaps greater moment, there is the complete failure to address in these rules the concerns expressed by the special advocates during the deliberations over the legislation. The Justice brief, to which the noble and learned Lord alluded, cites nine major concerns. I will cite just two of them: the lack of any formal rules of evidence and the lack of a searchable database of closed judgments. If the noble and learned Lord has not seen the list, will he undertake to look into the matters raised and respond by way of letter? It is true that the special advocates chose not to revive those concerns, in the context of this limited period for consultation, but they are on the record. In my submission, they should have been dealt with in the course of preparing the rules which we are debating today.
I now turn to what is potentially the most troubling issue arising from the rules. Much of the debate around Clause 6 of the Bill, now Section 6 of the Act, centred on the need for the judge to exercise discretion as to the making of an order. Section 6 sets out two conditions, both of which must, by virtue of Section 6(3), be met. The first is that a party would, by virtue of a declaration, be required to disclose sensitive, that is to say, national security-related, information or would be required to do so but for a range of factors—for example, a possible PII claim or enactment. The second condition is, and I quote Section 6(5),
“that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.
The Government produced this wording as an amendment to the Bill as it left your Lordships’ House. The House had passed an amendment positing the need for a declaration to be compatible with,
“the fair and open administration of justice”,
but even the Government’s amended version may be affected by Rule 82. This states that “the overriding objective” set out in Part 1 of the Civil Procedure Rules,
“must be read and given effect in a way which is compatible”,
with Rule 82(2); namely, that:
“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”.
But no reference is made to the second condition set out in Section 6(5). I pause to inquire what is meant by the words “in a way”. Will the Minister exemplify ways in which such information could properly be disclosed? That appears to be implicit, but I do not quite understand what the phrase means in the context.
As Justice points out, although the noble and learned Lord seems to dismiss the suggestion, the rules appear to suggest that in the consideration of any application under Section 6, the default position of the court must be non-disclosure rather than any consideration of the underlying and general objective to do justice in the case. It also draws attention to the Explanatory Memorandum that avers that an application under Section 6 must be treated in the same way as one under Section 8, which does not contain the potentially crucial second condition. That section states baldly that,
“the court is required to give permission for the material not to be disclosed if it considers that the disclosure of the material will be damaging to the interests of national security”.
It may be that, as the Minister James Brokenshire asserted in the Commons debate and, if I have understood him correctly, the noble and learned Lord has indicated today, this is not the Government’s intention. There seems to be a degree of uncertainty about this. In that case, would it not be better for the avoidance of doubt for the position to be clarified explicitly in the rules themselves? This would assist in entrenching the position advocated by the Supreme Court, for example, in the recent case of Bank Mellat v UK, that courts should go into closed session,
“only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice”.
I think the words are those of the noble and learned Lord, Lord Neuberger.
We now have CMP. We owe it to the interests of justice to heed the warnings of such eminent judges as the noble and learned Lord, Lord Neuberger, Lord Sumption and the noble and learned Lord, Lord Hope, who is not in his place tonight, to ensure that the rules are as compatible as possible with this overriding interest. It is in that spirit that I move the amendment.
My Lords, during the passage of the Justice and Security Bill, I argued for stronger protections for open justice, as the noble and learned Lord may possibly recollect. This is not an appropriate occasion to revisit that battle, but there has, as the noble Lord, Lord Beecham, explained in his compelling speech, been one important recent development which is relevant to this debate on the contents of the rules now before the House. I refer to the recent judgment of the Supreme Court in the Bank Mellat case.
Your Lordships will know that, under the Counter-Terrorism Act 2008, the Treasury took measures to shut down the operations in this country of Bank Mellat, an Iranian commercial bank. The Supreme Court overturned that decision on procedural and substantive grounds. During the appeal to the Supreme Court, the Treasury asked the Supreme Court justices to hear part of the evidence in a closed session. By five votes to four, the Supreme Court agreed to do so. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, speaking for the majority, explained that,
“on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal”.
Despite the court having what the noble and learned Lord, Lord Neuberger, described as “real misgivings”, the majority concluded that in the light of the submissions made on behalf of the Treasury, the court had to look at that material in a closed session. After looking at the material in a closed hearing, all the judges agreed that it made no difference to the issues in the case. The Supreme Court justices then made plain that they felt that they had been misled by the Treasury into allowing a wholly unnecessary closed hearing, about which all of them were uneasy, and which some of them thought was wrong in principle. The noble and learned Lord, Lord Hope of Craighead, said that the Treasury’s plea to the court to go into a closed hearing was,
“a misuse of the procedure”.
This is a very troubling episode.
It is particularly troubling because the noble and learned Lord and others assured noble Lords during the passage of the Bill that closed hearings would be sought only where strictly necessary. The Bank Mellat case demonstrates that, on that particular occasion, that principle was not respected in the highest court of the land. In the light of the criticism made by all nine judges of the Supreme Court of the request made by counsel for the Treasury for a closed hearing when, in the opinion of all the judges, there was no justification whatever for making such an application, will the noble and learned Lord tell the House what general guidance has been issued within the Treasury, within other government departments and to lawyers acting on behalf of the Government that in future they should be more careful to ensure that applications for closed hearings should be made only when there is a proper basis to do so?
The only benefit of this unhappy episode is that it led to some useful statements of principle by the Supreme Court which were designed to restrict the use of closed hearings in future cases. Can the noble and learned Lord assure the House that the statements of principle by the noble and learned Lord, Lord Neuberger, to which I am coming, are not overruled or undermined by anything in the rules now before the House for consideration? I should explain that I believe that that is the case; that is, that these rules must be interpreted and applied by reference to the principles set out by the noble and learned Lord, Lord Neuberger. That is one reason why I shall not oppose the rules today. However, I would very much like to hear the noble and learned Lord’s views on these points.
I shall identify the five central principles that the noble and learned Lord, Lord Neuberger, emphasised as important from a common law perspective. First, the noble and learned Lord said that any public High Court judgment must identify every conclusion which has been reached by reference to closed evidence. Will that remain the case under these rules? Secondly, he said that the open judgment must say as much as possible—consistent, of course, with national security—about the relevant closed material. As he noted,
“the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for”.
Are these rules consistent with that principle? Thirdly, he said that the court must consider whether it is possible to hear argument about the confidential material in open court without referring to any secret detail. Again, are these rules consistent with that basic principle? Fourthly, he said that advocates have a duty to the court to consider whether it really is necessary to ask the court to go into a closed hearing on an appeal. The same principle must apply, I think, to hearings in lower courts. Again, does the noble and learned Lord agree that this principle will apply under these rules? Fifthly, and finally, the noble and learned Lord, Lord Neuberger, for the Supreme Court expressly agreed with the comment of the noble and learned Lord, Lord Hope of Craighead, that judges,
“must be astute not to allow the system [of closed hearings] to be over-used by those in charge of that material”.
Does the noble and learned Lord agree that this principle is also applicable under the rules that we are now debating?
Each of these five principles identified by the noble and learned Lord, Lord Neuberger, is designed to ensure that, because of the vital interest of open justice, closed hearings should occur only when, and to the extent that, they are strictly necessary. My view is that these principles remain valid in relation to decisions under these rules. If the noble and learned Lord thinks otherwise, will he please so indicate to the House and explain why?
My Lords, my noble friend Lord Beecham has done the House a service by ensuring that we debate openly some of the issues around this procedure and these rules, and he has done so in a very effective and trenchant way. The noble Lord, Lord Pannick, has raised some important questions. I will not repeat them, but I look forward to hearing what the noble and learned Lord has to say in response. In the light of the way that he has presented those arguments and referred to the Bank Mellat case, I can be relatively short in my remarks, but I have two questions that I want to put.
I thank the Minister for the clarity with which he explained the safeguards that are in place and the emphasis he put on the requirements for the interests of justice still to be served notwithstanding these procedures. That is important because, given the rather stark way in which Rule 82.2 reads:
“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”,
some could mistakenly reach the view that that has become the overriding objective in this category of case. The noble and learned Lord, in remarks that will be carefully looked at—indeed mined by advocates, special advocates and, I hope, judges—has underlined that notwithstanding that statement, there are clear indications that the interests of justice remain paramount. He referred to the duty or requirements under Section 6 of the Human Rights Act, under Section 6(5) of the 2013 Act itself, and the fact that the first paragraph of the overriding objectives will continue to apply. Overall, what that indicates, if I understood correctly what the noble and learned Lord said—I hope that he can confirm this—is that, in the Government’s view, judges will still need to be guided by the requirement to ensure that cases are dealt with justly in the interests of the litigants.
Having said that, I was one of those who was unhappy about this procedure. I had had experience of closed material procedures when I was in office and I had spent time talking to special advocates. In the end, the House and Parliament were persuaded that the requirements were such that it was necessary to have such a procedure for a limited number of cases. I agree with the noble Lord, Lord Pannick, that this is not the occasion to go back over that question.
I have two questions, apart from those that have been raised by other noble Lords. First, going back to one of the safeguards which was required by the Act, the requirement for a report which now is to be found in Section 12 of the 2013 Act, will the noble and learned Lord please consider with his colleagues what it is that the report is going to contain? We know that by statute it has to contain numerical details of applications and judgments, but what else is it going to contain? One of the difficulties with these procedures is that because aspects of them will not take place in open court, we will not know what the issues are that have been given rise to by such proceedings. The Secretary of State has the power under Section 12(3) of the Act,
“to include in the report such other matters as he may consider appropriate”.
I hope, therefore, that the noble and learned Lord and his colleagues will consider whether matters that are considered “appropriate” would be the sort of thing that show how well the Act is working and whether it is giving rise to the problems that my noble friend Lord Beecham referred to, such as applications under Part 36 and so forth. I hope he can tell us that there will be a real attempt not to limit the reports made under the Act to mere numbers of matters dealt with and declarations made.
The second issue I want to raise derives from the Bank Mellat case. It is very troubling that the Supreme Court felt it necessary to say what it said. I do not know to what extent the Attorney-General was involved in the decision to make the application for a closed material procedure, but it would be a very useful safeguard to ensure that, at least at a certain level, whenever applications are to be made for a closed material procedure, the Attorney-General is involved. That will avoid the situation where counsel who is instructed by his client, which is the way the relationship otherwise works, simply has to accept the view of the officials who are instructing him that the particular matter gives rise to national security issues. It is very easy to say and it is very easy to say it quite convincingly, but it is important that there should be really independent scrutiny of whether it is justified. There will not necessarily be cases where a Supreme Court is in a position to look at it and say as trenchantly as the Supreme Court did in the Bank Mellat case that the application was not justified. I look forward to hearing what the Minister can say about the question of the involvement of the Attorney-General.
My Lords, I fully respect the concern of the noble Lord, Lord Beecham, to scrutinise these rules, and I share his view that they are of considerable importance. However, while of course we all accept that these rules ought to be debated, I find this regret Motion and its terms somewhat puzzling.
Along with many others on these Benches, I spoke and voted during the passage of the Justice and Security Bill for amendments that implemented recommendations of the Joint Committee on Human Rights, many in the name of the noble Lord, Lord Pannick, and others. However, I also ultimately accepted that with the safeguards we secured, it was better to enable those few cases which otherwise could not be heard at all, because open hearings would jeopardise national security, to be determined using CMPs. Since then, as the noble Lord, Lord Pannick, has pointed out and the noble and learned Lord, Lord Goldsmith, has amplified, we have had the Bank Mellat case with the trenchant criticisms by the Supreme Court that the application was made. However, those criticisms were applicable to the particular circumstances of that case. It is important and significant that the case nevertheless gave the Supreme Court the opportunity to spell out the principles that ought to be applied when the courts are considering closed material proceedings. I join the noble and learned Lord, Lord Goldsmith, in welcoming those principles, and with the noble Lord, Lord Pannick, in seeking clarification that they still apply. For my part, it seems that they can and do apply under these rules. It was interesting to note that the first Section 6 declaration application has been a claimant’s application, thus vindicating in a startling way our important “equality of arms” amendment.
The reason I find the noble Lord’s regret Motion puzzling is that the rules as drafted contain nothing that we would not expect and omit nothing that we would expect, given the Act we passed and the safeguards we built in. I will briefly give one or two examples. The central point of Part 2 of the Act is to permit CMPs to enable security-sensitive material to be used in litigation without compromising national security. The rules provide for a modification of the overriding objective, as has been pointed out, to ensure that information,
“is not disclosed in a way which would be damaging to the interests of national security”.
The court must still deal with cases justly and in accordance with the overriding objective. I suggest that the modification is the minimum necessary to bring the overriding objective in line with the decision of Parliament to enact the legislation. Furthermore, the court is still specifically bound, as the Minister pointed out, by Section 14(2) of the Act to give effect to the fair trial requirements of Article 6.
Earlier today, Liberty circulated a briefing which suggested that the amendment of the overriding objective is,
“an attempt to undo the modest amendments made to section 6 of the Act as it passed through Parliament. Namely Parliament’s insistence that before an application for CMP can be granted, a court must be satisfied that ‘it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration’”.
That is simply wrong and I regret that I must disagree with the noble Lord, Lord Beecham. The rules are subordinate. They must be read subject to the statutory second condition which he quoted, that it must be,
“in the interests of the fair and effective administration of justice in the proceedings for a declaration to be made”.
That is a precondition.
Section 7 of the Act requires the court to keep any CMP declaration under Section 6 under review and permits the court to revoke it at any time, and requires it to do so following pre-trial disclosure if it no longer considers the fair and effective administration of justice test to be met. That is a very important safeguard which, as my noble and learned friend pointed out, was achieved in this House. The rules in Section 4 provide the mechanisms for those reviews and implement the safeguard fully and accurately.
Finally, the rules provide a comprehensive code for the involvement of special advocates. They give the court judicial control at every stage to ensure that a specially represented party’s interests are compromised as little as is consistent with national security. This was one of the cardinal demands of those of us who believed that it should be for the court to determine when CMPs should be permitted and how they should be regulated. In particular, a special advocate will be able to apply to the court for directions under Rule 82.11, enabling him to communicate with the specially represented party so far as national security allows.
It is a matter of record that the special advocates opposed this legislation. They did so understandably, because CMPs are contrary to the principles of open justice that lie at the heart of our common law system, in which we hear and test evidence made available to all parties in open court. No one disputed then or disputes now that CMPs represent a derogation from those principles. No one, I suggest, underestimated the significance of the decision we took. In passing the Act, Parliament acted on the basis that it was better for the few cases to which it applied to be determined with CMPs than for them never to be determined at all, which was the alternative.
My central point is that these draft rules do no more than fairly and comprehensively implement the will of Parliament. The special advocates have had an opportunity to comment on the draft rules since 3 June, but they have not done so. For those reasons, I cannot see that the noble Lord’s regret Motion is fair or justified, and I therefore oppose it.
My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.
The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.
My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.
My Lords, I will make one brief comment. I start by commending my noble and learned friend the Minister for the way in which he has dealt with this extremely complex set of issues and for the way in which he opened the debate tonight. It is commonplace to observe that closed material procedures touch on matters as sensitive, in terms of the fundamentals of our system, as anyone can imagine. Having heard the extremely thoughtful contributions of fellow Peers tonight, it occurs to me that, if it were at all possible, it would be advisable—if I can put it that way to the Minister—to take away the issues that have been raised here tonight rather than push them through.
There are only a dozen of us in the House at this time. We have heard some extremely thought-provoking points made by the noble Lord, Lord Beecham. The noble Lord, Lord Pannick, referred to the five Neuberger principles—if I may call them that—which all require, I think, considerable further thought. The noble and learned Lord, Lord Goldsmith, raised the issue of potential vetting, so to speak, of applications by the Attorney-General of the day. I hope my noble friend the Minister will not have any fear of going against precedent if he considers it advisable to postpone passing these rules tonight so that the matter can be further considered and brought back immediately after the Recess, because the issues could scarcely be more important.
My Lords, first, I thank all noble Lords who have contributed to this debate. As my noble friend Lord Phillips said just now, we are dealing with very sensitive issues, which, in the debates on the Bill during its passage, received considerable attention, not least because of the very fundamental issues of the administration of justice to which they give rise. I think my noble friend Lord Marks of Henley-on-Thames was fair in saying that these rules that we now have are a fair and proper reflection of the architecture and detail of the statute that was passed by Parliament. The fact that it is in the form it is owes in many respects a lot to the work of your Lordships’ House, which the Government had no alternative but to pay heed to after the amendments were passed. The legislation that is in place is the better for that.
A number of important issues were raised. I will try to respond to them but I am conscious that, as the noble Lord, Lord Beecham, said, I spoke without pausing to draw breath. He made a number of important points which I hope I will be able to capture. If I do not cover everything, I will certainly write to him and circulate it to all noble Lords who took part in the debate. I will also address the point he made about the various points in the Justice briefing, although he identified only one or two of those.
Not only was the statutory consultation followed with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, but we sought also to allow an opportunity for your Lordships who had comments to feed those in, and for Members of the other place to do the same. I simply do not know whether the Northern Ireland Human Rights Commission was engaged in this, or whether the Lord Chief Justice of Northern Ireland consulted. Certainly, he was under no legal duty under the Act to do so. I can also say that the rules were being prepared as the Bill was going through and had to be very substantially changed in the light of the amendments that were passed. That was probably why they were not available at an earlier stage. Notwithstanding that, there was an opportunity for consultation, and, as my noble friend said, the rules we have are a proper reflection of what is in the Act.
Specifically, the Joint Committee on Human Rights and the Constitution Committee were not consulted. At this stage, when we are dealing with rules, the appropriate bodies of Parliament are the Joint Committee on Statutory Instruments and your Lordships’ Secondary Legislation Scrutiny Committee. Those are the appropriate committees to consider the court rules and, as I said, neither of them wished to draw any particular matter to the attention of the House.
In regard to the important point raised by the noble Lord in respect of Part 36 of the rules, Rule 36.14 provides for costs consequences for a claimant who fails to beat the defendant’s offer,
“unless it considers it unjust to do so”.
Therefore the court will, as set out in Rule 36.14(4), take into account all the circumstances of the case, including information available to the parties, and it is expected that the court will be very alert to any issues that might make it unjust to follow the normal rule where a CMP is involved.
It is also important to say that these rules are not set in stone. While the initial set of rules had to be submitted to Parliament for approval as a requirement of the Act in respect of Northern Ireland and England and Wales, any amendment to the rules will proceed by the normal course of amendment to Civil Procedure Rules. If, at a future date, there were to be a change in the rules as a result of representations, that might well be something that could be included in the annual report to which the noble and learned Lord, Lord Goldsmith, referred.
The noble Lord, Lord Beecham, asked about further amendment; as I said, there is a procedure for that to happen. He asked what other forms of otherwise inadmissible evidence there might be. I recall that we went over this during some of our debates. He will find that the answer is in Section 6(4)(b), which says that,
“a party to the proceedings would be required to make such a disclosure were it not for one or more of the following”.
It may well be that if, for example, there had been,
“the possibility of a claim for public interest immunity in relation to the material”,
which could otherwise have excluded the material from closed material proceedings, that, of course, would not happen as a result of this. Therefore, that is another example, in addition to the obvious one he gave in terms of intercept material.
The noble Lord also asked about the database of closed judgments. The Government have sought to improve the database of closed judgments that is available to special advocates, and that work has been ongoing. I will come in a moment to the other important issues about judgments, which the noble Lord, Lord Pannick, mentioned. Of course, the judge’s discretion is there throughout. Whenever the disclosure has happened under Section 8, the judge is then required under Section 7 to look again to see whether it is still in the interests of the fair and effective administration of justice in these proceedings for the initial declaration for closed material proceedings to continue. Almost every step along the way, the interests of fair and effective administration of justice are brought into play.
The noble Lord, Lord Pannick, referred to the recent judgment of the Supreme Court in the Bank Mellat case. What he said in many respects reflected what was said many times during the debate, not least by me. It was there from the very first Green Paper that the intention of the Government is that closed material proceedings should be used in just a very small number of cases. At the time when the Bill came before your Lordships’ House, in the 12 months from October 2011 to October 2012, the figure of 20 was talked about. I do not have an up-to-date figure, but I understand that it has not changed much. Some cases may settle and new cases come in, but that is roughly the order of the cases. It is certainly our view that these cases should arise only where we believe it is strictly necessary. I do not believe that there is anything in the rules that is contrary to the principles identified by the noble and learned Lord, Lord Neuberger, as President of the Supreme Court. I have no doubt, too, that in considering applications for closed material proceedings, these will be drawn to the attention of whichever judge is dealing with it. I am sure that the special advocates involved will be very astute and keen to do so.
However, the important point is that these will be matters for the judiciary, and the judiciary has indicated in that case at the highest level that the threshold is quite a high one. I have no doubt that in the months and years ahead there will be litigation on provisions of this legislation when there will be an opportunity for judges to indicate—with specific reference to this legislation—how it should be interpreted. However, as I indicated, I do not believe there is anything in the rules which run contrary to the principles that have been identified.
The noble and learned Lord, Lord Goldsmith, asked me about what might be in the review as opposed to just numbers. I will give him an indication. For example, if there were a change to the rules of the court—which would not come before your Lordships, it would come before Parliament—that might be reported. In terms of development there would be an indication from the Secretary of State as to how he sees this law working out in practice. Maybe not in the first year, but after one or two years when there is some experience of how it works. I certainly would not see anything wrong in having a bit of a narrative, which can perhaps be expanded, as is possible consistent with the information and national security. The noble and learned Lord, Lord Goldsmith, also asked me whether the Attorney-General was consulted with regard to the Bank Mellat case. I simply do not know and cannot remember being told. He and I know that there is some delicacy as to what you say the Law Officers have been asked; but his comments about the involvement of the Law Officer comes from a distinguished former Attorney-General, and therefore I will certainly ensure that his comments on this are drawn not only to the attention of my right honourable friend the Attorney-General but generally to those who are going to be involved in these cases.
The further point, which the noble Lord, Lord Bew, made, was with regard to special advocates. I have no detailed knowledge of this, but I have no reason to think that the vetting is any less now. Of course, special advocates in Northern Ireland are appointed by the Advocate-General for Northern Ireland, who is of course one and the same person as the Attorney-General for England and Wales, a position which the noble and learned Lord, Lord Goldsmith, has previously held. Therefore, I think he can be assured that the scrutiny that is applied is done to the highest level. I hope that he has that reassurance.
The noble Lord, Lord Beecham, raised a number of points, and I hope that I have covered most of those raised in this debate. I believe that what we have here are rules that fairly and faithfully reflect the diligence of both Houses of Parliament in putting together a piece of legislation which we all recognise is hugely sensitive. In those circumstances, I commend them to the House.
My Lords, I am very grateful to the noble and learned Lord and I look forward to hearing further from him on some of the outstanding matters. He may well be right about Part 36 offers—well, of course, he must be right—and that the possible problem that might have existed in relation to costs of a Part 36 application is covered by Rule 36.14, as he says. But of course, that does not leave the party in any better position to assess whether to accept a Part 36 offer. There may not be a cost implication, but he is not in any position to assess the strength or otherwise of a Part 36 offer, which rather distinguishes it from the general case.
I am very grateful to noble Lords who have contributed to the debate, especially to the noble Lords, Lord Pannick and Lord Bew, to the noble and learned Lord, Lord Goldsmith, and to the noble Lord, Lord Phillips, who broadly expressed support for the Motion. The noble Lord, Lord Marks, affects not to understand the reason or terms of the amendment. It is really fairly straightforward, I would have thought. The thrust of the argument that I sought to make, in which I was in various ways supported, is that we are seeing the transposition of a set of rules applicable to immigration cases under SIAC to ordinary civil procedure, as I said in opening the debate. That is the thrust of the first part of the amendment.
The second part of the amendment refers to the points made by the special advocates, to which the noble Lord, Lord Marks, chose not to direct his mind at all. I cited a couple of their concerns, but there were others—and I shall quote them, as we are not holding up a debate on the Care Bill by so doing. For example, among the points that they make, they talked about the,
“inability effectively to challenge non-disclosure … The lack of any practical ability to call evidence … The lack of any formal rules of evidence, so allowing second or third hand hearsay to be admitted, or even more remote evidence; frequently with the primary source unattributed and unidentifiable, and invariably unavailable for their evidence to be tested, even in closed proceedings … A systemic problem with prejudicially late disclosure by the Government … the Government's approach of refusing to make such disclosure as is recognised would require to be given until being put to its election, and the practice of iterative disclosure … The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them … on the basis of the Government’s unilateral view of relevance”.
These were all matters that were raised, and none of them appears to have been dealt with—
Does the noble Lord accept the point that I was making, that the special advocates’ objections went to the legislation and were considered by Parliament during the passage of the legislation? The special advocates have not objected to these rules as implementing the legislation. If that is right, that is the query that I raise about the point of this regret Motion, which is directed to the rules in particular.
But the points that the special advocates have raised go to the process, which is the subject of these rules. The points that I have made could and should have been taken into account in the drafting of the rules to implement this procedure other than simply on the basis of applying to these circumstances of civil claims the rules that apply in entirely different and non-analogous circumstances of special immigration appeals.
I am not saying that all of them could or should have been incorporated. However, they do not seem to have been considered and none of them has been reflected in the rules. Perhaps I may quote again from the Justice briefing:
“Nothing in these Rules will improve the situation of the Special Advocate or the operation of CMP”.
There was an opportunity to address some of those concerns on the basis that the Act has passed. I am not challenging the outcome of the debates that we had or the final form of the Act. However, the rules should have reflected at least some of those concerns.
The special advocates chose not to get further involved in this fairly limited process of consultation, perhaps feeling that it would not serve any purpose. They are probably right in that respect. As Justice points out:
“That the Ministry of Justice have not taken steps to address their existing concerns, but have transplanted Rules which are already deficient, suggests that the existing limitations of the SIAC process will be moved wholesale into our ordinary civil courts. No attempt has been made to make the CMP process fairer”.
That is an accurate description of where we are now. Nevertheless, the noble and learned Lord in particular has shown willingness to listen to the debates that we have had in your Lordships’ House. Rules are not unchangeable. The noble and learned Lord, Lord Goldsmith, referred to the fact that there will be a report as part of the review exercise that will be carried out. I hope that the opportunity will be taken to revisit the rules in the light of experience. It is important that the concerns should have been aired today. I hope that we will all be able to return at some point in the future to seek to improve the situation. I beg leave to withdraw the amendment.
Amendment to the Motion withdrawn.