Session 2014 - 15
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, continued

 
 

(b)    

that such an application is always considered in the absence of every

 

party to the proceedings (and every party’s legal representative);

 

(c)    

that the relevant court is required to give permission for material not

 

to be disclosed if it considers that the disclosure of the material would

 

be contrary to the public interest;

 

(d)    

that, if permission is given by the relevant court not to disclose

 

material, it must consider requiring the Secretary of State to provide a

 

summary of the material to every party to the proceedings (and every

 

party’s legal representative);

 

(e)    

that the relevant court is required to ensure that such a summary does

 

not contain material the disclosure of which would be contrary to the

 

public interest.

 

      (2)  

Rules of court relating to TEO proceedings or appeal proceedings must secure

 

that provision to the effect mentioned in sub-paragraph (3) applies in cases

 

where the Secretary of State—

 

(a)    

does not receive the permission of the relevant court to withhold

 

material, but elects not to disclose it, or

 

(b)    

is required to provide a party to the proceedings with a summary of

 

material that is withheld, but elects not to provide the summary.

 

      (3)  

The relevant court must be authorised—

 

(a)    

if it considers that the material or anything that is required to be

 

summarised might adversely affect the Secretary of State‘s case or

 

support the case of a party to the proceedings, to direct that the

 

Secretary of State—

 

(i)    

is not to rely on such points in the Secretary of State‘s case, or

 

(ii)    

is to make such concessions or take such other steps as the

 

court may specify, or

 

(b)    

in any other case, to ensure that the Secretary of State does not rely on

 

the material or (as the case may be) on that which is required to be

 

summarised.

 

      (4)  

In this paragraph—

 

(a)    

references to a party to the proceedings do not include the Secretary of

 

State;

 

(b)    

references to a party’s legal representative do not include a person

 

appointed as a special advocate.

 

Article 6 rights

 

5    (1)  

Nothing in paragraphs 2 to 4, or in rules of court made under any of those

 

paragraphs, is to be read as requiring the relevant court to act in a manner

 

inconsistent with Article 6 of the Human Rights Convention.

 

      (2)  

The “Human Rights Convention” means the Convention within the meaning

 

of the Human Rights Act 1998 (see section 21(1) of that Act).

 

Rules of court: anonymity

 

6    (1)  

Rules of court relating to TEO proceedings or appeal proceedings may make

 

provision for—

 

(a)    

the making by the Secretary of State or the relevant individual of an

 

application to the court for an order requiring anonymity for that

 

individual, and

 

(b)    

the making by the court, on such an application, of an order requiring

 

such anonymity;


 
 

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381

 

, continued

 
 

            

and the provision made by the rules may allow the application and the order to

 

be made irrespective of whether any other TEO proceedings have been begun

 

in the court.

 

      (2)  

Rules of court may provide for the Court of Appeal or the Inner House of the

 

Court of Session to make an order in connection with any appeal proceedings

 

requiring anonymity for the relevant individual.

 

      (3)  

In sub-paragraphs (1) and (2) the references, in relation to a court, to an order

 

requiring anonymity for the relevant individual are references to an order by

 

that court which imposes such prohibition or restriction as it thinks fit on the

 

disclosure—

 

(a)    

by such persons as the court specifies or describes, or

 

(b)    

by persons generally,

 

            

of the identity of the relevant individual or of any information that would tend

 

to identify the relevant individual.

 

      (4)  

In this paragraph “relevant individual” means an individual on whom the

 

Secretary of State is proposing to impose, or has imposed, measures.

 

Initial exercise of rule-making powers by Lord Chancellor

 

7    (1)  

The first time after the passing of this Act that rules of court are made in

 

exercise of the powers conferred by this Schedule in relation to proceedings in

 

England and Wales or in Northern Ireland, the rules may be made by the Lord

 

Chancellor instead of by the person who would otherwise make them.

 

      (2)  

Before making rules of court under sub-paragraph (1), the Lord Chancellor

 

must consult—

 

(a)    

in relation to rules applicable to proceedings in England and Wales,

 

the Lord Chief Justice of England and Wales;

 

(b)    

in relation to rules applicable to proceedings in Northern Ireland, the

 

Lord Chief Justice of Northern Ireland.

 

      (3)  

But the Lord Chancellor is not required to undertake any other consultation

 

before making the rules.

 

      (4)  

A requirement to consult under sub-paragraph (2) may be satisfied by

 

consultation that took place wholly or partly before the passing of this Act.

 

      (5)  

Rules of court made by the Lord Chancellor under sub-paragraph (1)—

 

(a)    

must be laid before Parliament, and

 

(b)    

if not approved by a resolution of each House before the end of 40 days

 

beginning with the day on which they were made, cease to have effect

 

at the end of that period.

 

      (6)  

In determining that period of 40 days no account is to be taken of any time

 

during which Parliament is dissolved or prorogued or during which both

 

Houses are adjourned for more than 4 days.

 

      (7)  

1f rules cease to have effect in accordance with sub-paragraph (5)—

 

(a)    

that does not affect anything done in previous reliance on the rules,

 

and

 

(b)    

sub-paragraph (1) applies again as if the rules had not been made.

 

      (8)  

The following provisions do not apply to rules of court made by the Lord

 

Chancellor under this paragraph—

 

(a)    

section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure

 

for civil procedure rules);

 

(b)    

section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978

 

(statutory rules procedure).


 
 

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382

 

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      (9)  

Until the coming into force of section 85 of the Courts Act 2003, the reference

 

in sub-paragraph (8)(a) to section 3(6) of the Civil Procedure Act 1997 is to be

 

read as a reference to section 3(2) of that Act.

 

Use of advisers

 

8    (1)  

In any TEO proceedings or appeal proceedings the relevant court may if it

 

thinks fit—

 

(a)    

call in aid one or more advisers appointed for the purposes of this

 

paragraph by the Lord Chancellor, and

 

(b)    

hear and dispose of the proceedings with the assistance of the adviser

 

or advisers.

 

      (2)  

The Lord Chancellor may appoint advisers for the purposes of this paragraph

 

only with the approval of—

 

(a)    

the Lord President of the Court of Session, in relation to an adviser

 

who may be called in aid wholly or mainly in Scotland;

 

(b)    

the Lord Chief Justice of Northern Ireland, in relation to an adviser

 

who may be called in aid wholly or mainly in Northern Ireland;

 

(c)    

the Lord Chief Justice of England and Wales, in any other case.

 

      (3)  

Rules of court may regulate the use of advisers in proceedings who are called

 

in aid under subparagraph (1).

 

      (4)  

The Lord Chancellor may pay such remuneration, expenses and allowances to

 

advisers appointed for the purposes of this paragraph as the Lord Chancellor

 

may determine.

 

9    (1)  

The Lord President of the Court of Session may nominate a judge of the Court

 

of Session who is a member of the First or Second Division of the Inner House

 

of that Court to exercise the function under paragraph 8(2)(a).

 

      (2)  

The Lord Chief Justice of Northern Ireland may nominate any of the following

 

to exercise the function under paragraph 8(2)(b)—

 

(a)    

the holder of one of the offices listed in Schedule 1 to the Justice

 

(Northern Ireland) Act 2002;

 

(b)    

a Lord Justice of Appeal (as defined in section 88 of that Act).

 

      (3)  

The Lord Chief Justice of England and Wales may nominate a judicial office

 

holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to

 

exercise the function under paragraph 8(2)(c).

 

Appointment of special advocate

 

10  (1)  

The appropriate law officer may appoint a person to represent the interests of

 

a party in any TEO proceedings or appeal proceedings from which the party

 

(and any legal representative of the party) is excluded.

 

      (2)  

A person appointed under sub-paragraph (1) is referred to in this Schedule as

 

appointed as “special advocate”.

 

      (3)  

The “appropriate law officer” is—

 

(a)    

in relation to proceedings in England and Wales, the Attorney

 

General;

 

(b)    

in relation to proceedings in Scotland, the Advocate General for

 

Scotland;

 

(c)    

in relation to proceedings in Northern Ireland, the Advocate General

 

for Northern Ireland.

 

      (4)  

A person appointed as a special advocate is not responsible to the party to the

 

proceedings whose interests the person is appointed to represent.

 

      (5)  

A person may be appointed as a special advocate only if—


 
 

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383

 

, continued

 
 

(a)    

in the case of an appointment by the Attorney General, the person has

 

a general qualification the purposes of section 71 of the Courts and

 

Legal Services Act 1990;

 

(b)    

in the case of an appointment by the Advocate General for Scotland,

 

the person is an advocate or a solicitor who has rights of audience in

 

the Court of Session or the High Court of Justiciary by virtue of

 

section 25A of the Solicitors (Scotland) Act 1980;

 

(c)    

in the case of an appointment by the Advocate General for Northern

 

Ireland, the person is a member of the Bar of Northern Ireland.”

 

Progress reported.


 
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Revised 16 December 2014