The
Committee consisted of the following
Members:
Chairman:
Dr. William
McCrea
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Brake,
Tom
(Carshalton and Wallington)
(LD)
Cawsey,
Mr. Ian
(Brigg and Goole)
(Lab)
Dodds,
Mr. Nigel
(Belfast, North)
(DUP)
Harris,
Mr. Tom
(Glasgow, South)
(Lab)
Hesford,
Stephen
(Wirral, West)
(Lab)
Hill,
Keith
(Streatham)
(Lab)
Howarth,
David
(Cambridge)
(LD)
Joyce,
Mr. Eric
(Falkirk)
(Lab)
Lucas,
Ian
(Wrexham)
(Lab)
Malins,
Mr. Humfrey
(Woking)
(Con)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)Riordan,
Mrs. Linda
(Halifax)
(Lab/Co-op)
Roy,
Lindsay
(Glenrothes)
(Lab)
Shepherd,
Mr. Richard
(Aldridge-Brownhills)
(Con)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Glen McKee, Committee
Clerk
attended the
Committee
Eleventh
Delegated Legislation
Committee
Wednesday 21
January
2009
[Dr.
William McCrea in the
Chair]
Rules
of the Supreme Court (Northern Ireland) (Amendment No. 3)
2008
2.30
pm
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): I beg to move,
That the
Committee has considered the Rules of the Supreme Court (Northern
Ireland) (Amendment No. 3) 2008 (S.R. (N.I.), 2008, No.
479).
The
Chairman: With this it will be convenient to consider the
Civil Procedure (Amendment No. 2) Rules 2008 (S.I., 2008, No.
3085).
Bridget
Prentice: It is a delight to serve under your
chairmanship, Dr. McCrea. I will do my level best to be as brief as
possible, although the rules are quite technical. In the course of my
remarks, I hope that I will be able to deal with any questions that
hon. Members might have.
The
Counter-Terrorism Act 2008 provided for financial restrictions
proceedings, which are proceedings on an application to set aside a
financial restrictions decision or on any matter arising from such an
application. The Civil Procedure (Amendment No. 2) Rules 2008 insert a
new part 79 into the Civil Procedure Rules 1998 and set out the
procedure for applications to the High Court in England and Wales and
any appeal to the Court of Appeal. The Rules of the Supreme Court
(Northern Ireland) (Amendment No. 3) 2008 insert new order 116B into
the Rules of the Supreme Court (Northern Ireland) 1980 and make
corresponding
provisions.
Both
sets of rules were made by the Lord Chancellor in December last year,
shortly after the 2008 Act received Royal Assent. The Lord Chief
Justice of England and Wales and the Lord Chief Justice of Northern
Ireland were consulted. For England and Wales, amendments are usually
made by the civil procedure rule committee, which is statutorily
responsible under section 2 of the Civil Procedure Act 1997 for making
the relevant rules of court. In Northern Ireland, amendments to the
Rules of the Supreme Court (Northern Ireland) 1980 are usually made by
the Supreme Court rules committee of Northern Ireland, which is
statutorily responsible, under section 55A of the Judicature (Northern
Ireland) Act 1978, for making such
rules.
To
allow the rules to be made as soon as possible, part 6 of the
Counter-Terrorism Act 2008 authorised the Lord Chancellor to make rules
of court in the first instance, after the Act was passed, subject to
consulting the appropriate Lord Chief Justice. All subsequent rules or
amendments will be made by either the civil procedure rules committee
or the Supreme Court rules committee of Northern Ireland, and they will
be subject to the normal rule-making requirements, including the
parliamentary negative procedure.
Prior to these
rules, there was no specific provision in either the Civil Procedure
Rules 1998 or the Rules of the Supreme Court (Northern Ireland) 1980 to
deal with financial restrictions proceedings. However, rules are
required because it is expected that, although financial restrictions
decisions can be based on open or closed material, subsequent court
proceedings will frequently involve the use of closed material and
special advocates, and the 2008 Act sets out what the rules of court
must or may provide, including making rules of court to govern the use
of closed material and the use of special
advocates.
Closed
material has been used as evidence in asset-freezing decisions since
2006, when the Treasury announced its intention to do so if there are
strong operational reasons to impose an asset freeze, but insufficient
open evidence is available. However, any reliance on that closed
material in any subsequent court proceedings relating to such decisions
has, until now, been dependent on the court being willing to exercise
its inherent jurisdiction to order a closed hearing and the appointment
of a special advocate. The question of whether and when the court
should exercise its jurisdiction was one of the points at issue in the
case of A, K, M, Q and G v. Her Majestys Treasury, which
was considered by the Court of Appeal last year. The use of special
advocates was developed as a means of mitigating disadvantage to a
party who has been excluded from a hearing, or from whom information
relevant to his or her case is withheld on the grounds that such
disclosure would be contrary to the public interest. However, I assure
the Committee that the need for a special advocate would arise only if
the court could be persuaded that it should consider certain evidence
at a closed hearing at which one of the parties, and their legal
representatives, would not be presentthe special advocate would
therefore represent that partys
interests.
However,
since the Treasurys decision in 2006 to rely on closed material
in asset-freezing decisions, it has become apparent that many, if not
most, subsequent court proceedings relating to such decisions would
involve consideration of closed material, without which the Treasury
would not be able to defend fully its decisions. It was thus felt that
it was appropriate to provide for that by way of legislation and
consequent rules of court, rather than by relying simply on the
courts willingness to exercise its inherent jurisdiction. It
was felt that that would bring the process into line with other areas
where closed evidence is often central to
proceedings.
Similar
considerations apply in the case of decisions taken under part 2 of the
Anti-terrorism, Crime and Security Act 2001. The new powers introduced
in schedule 7 to the Counter-Terrorism Act 2008 may also involve
decisions being taken on the basis of closed material, and for the
Treasury to defend fully such decisions, the court would need to
consider closed material. Accordingly, it was felt that challenges to
decisions taken under those powers should also be made subject to the
new
procedures.
Special
advocates are appointed by the Attorney-General. The fundamental
feature of all special advocate systems is that once the special
advocate has received closed material, all direct communication between
the special advocate and the party whose interest that advocate is
representing, and their legal representatives, must cease, unless the
court has given its consent.
In relation to
other proceedings, the Government have established very similar
statutory procedures involving closed material and the use of special
advocates. These include proceedings before the Special Immigration
Appeals Commission and control order proceedings in the High
Court.
The
new amendments to the Civil Procedure Rules 1998 and the Rules of the
Supreme Court (Northern Ireland) 1980 are based on the general
principle that, subject to the new rules on financial restrictions
proceedings, the other provisions of the 1998 and 1980 rules should
apply to these proceedings and any subsequent appeals, subject to any
necessary modifications. Such modifications and disapplication of parts
of the 1998 rules and orders of the 1980 rules have been minimised as
far as
possible.
The
overriding objective in part 1 of the 1998 rules and order 1 of the
1980 rules, which require the court to deal with cases justly, is to be
read as including a requirement that the court in financial restriction
proceedings will ensure that information is not disclosed contrary to
the public interest. A similar modification to the overriding objective
already exists in relation to control order proceedings. Some general
rules about evidence and disclosure are also disapplied in favour of
the rules dealing with financial restrictions
proceedings.
New
part 79 and new order 116B, which relate to financial restrictions
proceedings, are divided into four sections. Section 1 of new part 79,
and part I of order 116B, contain rules about scope and
application. In particular, the overriding objective in part 1 of the
1998 rules and order 1 of the 1980 rules has been modified in relation
to financial restrictions proceedings to place a duty on the court to
ensure that information is not disclosed contrary to the public
interest.
Section
2 of new part 79 contains rules about the court procedure relating to
applications to set aside a financial restrictions decision. Section 3
modifies the general provisions governing appeals to the Court of
Appeal and provides that part 52 of the Civil Procedure Rules 1998
applies to an appeal to the Court of Appeal against an order of the
High Court in financial restrictions proceedings. Appeals under this
section are subject to rule 79.2.
Similarly,
part III of new order 116B modifies the general provisions governing
appeals to the Court of Appeal. It also makes specific provision in
respect of appeals in financial restrictions proceedings, which is
modelled on the appeal provisions in the Civil Procedure Rules 1998.
Appeals under this part are subject to rule 2 and part 4 of the order.
Finally, section 4 of new part 79, and part IV of new order
116B, include provision for closed material, special advocates, and
evidence and disclosure.
As technical
as all that is, I hope that the Committee feels able to support the new
rules, which have been made under the aegis of the Lord
Chancellor.
2.40
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): It is a
pleasure to serve under your chairmanship for the first time, Dr.
McCrea. I thank the Minister for her lucid and concise explanation of
these technical rules. She has put fairly technical issues into
laymans language very adeptly.
I declare an
interest as a barrister. I shall be brief because I am conscious that
other Members want to speak. My hon. Friend the Member for Belfast,
North, in particular, might have a special interest in this
subject.
The measures
implement the financial restrictions proceedings measures in part 6 of
the Counter-Terrorism Act 2008. We were broadly supportive of the
measures in that Act, with a few notable exceptions. One weakness of
the United Nations terrorism orders was that challenges to asset
freezes had to be made by judicial review, and there was a similar
drawback to part 2 of the Anti-terrorism, Crime and Security Act 2001.
It is therefore positive news that the 2008 Act gives parties the right
to challenge freezing orders in the High Court. We are looking partly
at freezing orders today, but mainly at financial restrictions
proceedings, which are directions or orders that stop short of outright
freezing.
I should like
to press the Minister on a few of the areas that she has covered. As
she has explained, the 2008 Act provides powers to make rules of court,
particularly to ensure that information is not disclosed in financial
restrictions proceedings where such disclosure would be
contrary to the
public interest.
I do not expect the
Minister to give much away, but will she give us examples of what would
not be in the public interest? That is down to a decision of the court,
and I should like to know whether similar arrangements apply in
Northern Ireland as in our High Court. Here, guidelines are available
to judges; what guidelines do judges in the Province have to ensure
that they decide consistently what is or is not in the public
interest?
The
Minister mentioned rules to govern the use of special advocates, or
security-vetted barristers. Will she tell us more about those
advocates? Do they go through standard security clearancethe
positive vetting procedureor is some special procedure in
place? Does that apply only to members of the Bar, or can
solicitor-advocates also apply to be special advocates in that context?
Will she tell us more about how that procedure
works?
The
rules may make provision for proceedings to be determined without a
hearing. I know that the Minister, and Her Majestys Government
generally, are keen to speed up the machinery and dispensation of
justice across the UK, but is not that going a little too far? Will she
explain why the rules are so far-reaching that they allow proceedings
to be carried on with and determined without a hearing taking place at
all? Perhaps she will also explainI know that this happens in
other courts in the kingdomwhy the rules will enable the court
to conduct proceedings for a particular case without the party in
question, or his or her legal representative, being present. There
might be extreme cases when the party cannot be represented or
contacted, when they are offshore, or when they are perhaps refusing to
co-operate with the proceedings in question. However, we must be very
careful indeed about allowing a case to go forward without one of the
key parties being represented, either in person or by a barrister or
lawyer. Will the Minister tell the Committee whether any safeguards
will be put in place to prevent that particular rule from being abused
in the future?
I see that
these rules will not apply to small businesses, so I would just like to
push the Minister a little on that issue. My hon. Friend the Member for
Belfast, North
will be more aware of this than I am, but terrorists and extremists from
both sides of the community in the Province often use corporate
vehicles, or small-and-medium-sized-enterprise fronts, for smuggling,
protection rackets or drug distribution. Perhaps the Minister will
elaborate, because it surprises me that these rules do not apply to
SMEs or incorporated vehicles of any kind.
Having put
those few questions, I want to thank the Minister again for explaining
these measures very clearly. The Conservatives supported the vast
majority of the 2008 Act, and I am pleased to say that this aspect was
one that we were able to support in full when it was before the House
last year. I wish the Minister well with the implementation of these
rules.
2.46
pm
Tom
Brake (Carshalton and Wallington) (LD): It is a pleasure
to serve under your chairmanship, Dr. McCrea. I do not intend to delay
the Committee for more than a couple of minutes, if that.
I listened to
the Minister very carefully and found what she said most illuminating.
The spokesman for the official Opposition, the hon. Member for
North-West Norfolk, posed some challenging questions for the Minister
and I will listen very carefully to her responses. The way in which it
will be determined that the disclosure of information would or would
not be in the public interest is a significant issue, so I will be
interested to hear about the guidelines that will be put in place to
address it.
The hon.
Gentleman asked other important questions. However, on the basis that I
have been advised that these measures are not controversial, I will
certainly not seek to delay their
progress.
2.47
pm
Mr.
Nigel Dodds (Belfast, North) (DUP): I join others in
expressing delight at serving under your chairmanship, Dr. McCrea, and
at taking part in the Committee.
Like others,
I thank the Minister for her explanation of these very technical rules
and their application, both on this side of the water and in Northern
Ireland. I also thank the hon. Member for North-West Norfolk for the
way in which he posed several valid and useful questions, and I will be
interested to hear the Ministers response. Obviously, we are
aware of the background to these pieces of subordinate legislation. We
also understand the reasons behind the introduction of the primary
legislation and financial restrictions proceedings in
general.
Of course,
there are always concerns when rules of court are being laid down that
make it clear that there will be a very big departure from the normal
rules of evidence and so on, especially when it comes to requiring
proceedings to be determined without a hearing and when it might be
possible for proceedings to take place without the full particulars of
the reason for decisions to which the proceedings relate being given to
a party or his legal representative, other than the Treasury. Those
points certainly raise serious fundamental questions about the legal
process. It is important that we receive a full assurance from the
Minister that these kinds of processes and procedures will be followed
only in the most strictly defined circumstances.
We understand
the reason for the use of special advocates and for the introduction of
security-vetted barristers. We know that these rules before us will
enable the court to conduct proceedings in the absence of any party or
their legal representative, again other than the Treasury. It would be
useful to have clarification from the Minister as to whether that would
include a special advocate in such circumstances. Could proceedings
take place without the party concerned having any kind of legal
representation or notice whatsoever? I would be grateful if the
Minister could explain the process further.
There are
times and circumstances when it is absolutely vital that swift
actionindeed, draconian actionis taken in relation to
peoples assets and financial restrictions. This subordinate
legislation is helpful because it lays down rules that did not exist.
Previously, one had to go for a judicial review.
Finally, I
note that the 2008 Act gave the Lord Chancellor the power to make the
rules in the first instance, after which, in Northern Irelands
case, power reverts to the Supreme Court rules committee. Will the
Minister outline what consultationapart from that which she
mentioned with the Lord Chief Justice of Northern Irelandhas
taken place with the Supreme Court rules committee on the Rules of the
Supreme Court (Northern Ireland) (Amendment No. 3)
2008?
2.51
pm
Bridget
Prentice: I am grateful to all Opposition Members who have
spoken for the constructive way in which they have approached the
matter. I appreciate the fact that we are, more or less, of one mind
about how to take things forward. I hope that I shall be able to answer
their fundamental
questions.
The
hon. Member for North-West Norfolk asked what might or might not be in
the public interest, and others reiterated the question. The
phraseology is always difficult to define, and it is best to give
examples. I have two: if the information, once revealed, would divulge
security services sources; and if disclosure might adversely affect
international relations. It would be up to the court to decide on a
case-by-case basis what it felt was, or was not, in the public
interest, and the definition is based on that which we used for control
orders. That is the best way to explain it. Again, if disclosure
adversely affected an ongoing investigation, the court might take that
into account when considering the public interest.
The hon.
Gentleman and others asked about special advocates, positive vetting
and who the advocates would be. They are appointed by the
Attorney-General. They tend to be barristersthere is no reason
why a solicitor-advocate could not be a special advocate, although I am
not aware of any at the momentand they are basically subject to
more or less the same vetting as civil servants, with one or two
procedural differences that are appropriate to their
profession.
The hon.
Gentleman also asked about special advocates and someone not being
represented. It is important that safeguards are in place. If the court
rules that material should not be disclosed, it must consider requiring
the Treasury to provide a summary of the material, and any such summary
must not itself contain any material whose disclosure would be contrary
to the public interest. If the Treasury were not to receive the
courts permission to withdraw sensitive material, it would
obviously elect
not to disclose it. If that were to happen, the rules of court would
allow the court either to direct that the Treasury may not rely on the
material, or, if the Treasurys case was adversely affected, to
make such concessions as the court specified. That is one disclosure
safeguard.
There is
another safeguard with regard to the role of the special advocate. The
special advocate represents the interest of the applicant, including by
receiving and making submissions on closed-source evidence that the
applicant or his representative cannot see. The special advocate, of
course, is not a representative in the same sense as in the
relationship between client and solicitor or barrister, but he has to
act in a way that gives the individual the opportunity to have proper
pleadings and a fair trial. It is very much still part of the rules of
court that the court and the special advocate act in a manner that
would not be incompatible with the right of an applicant to a fair
hearing.
The
hon. Member for Belfast, NorthI was there on Monday and had a
busy but enjoyable time meeting the Lord Chief Justice, the Law Society
and the Bar, among othersasked about consultation and the rules
committee. The Lord Chief Justice of Northern Ireland was consulted on
the rules as far as was required in Northern Ireland, but the rules
committee itself has not been consulted. It might well have something
further to say, and I am sure that the Lord Chief Justice will, in his
expert way, be more than able to assure it that this is the proper way
to deal with the
matter.
As
far as England and Wales are concerned, not only was the Lord Chief
Justice consulted, but he in turn consulted the Master of the Rolls and
Lord Justice Moore-Bick, who chairs the civil procedure rules
committee.
Perhaps there has been slightly more consultation in England and Wales
than there has been in Northern
Ireland.
I
hope that I have answered all hon. Members questions. However,
I will look through Hansard and, should it be necessary,
I will write to the Committee with further detailed explanations. On
that basis, I ask the Committee to support the
rules.
Mr.
Bellingham: The Minister answered the questions very well.
The only one that I believe she did not touch on is about the rules
that enable proceedings to be determined without a hearing. I am
worried that that could happen, with a hearing bypassed completely.
Will she explain how that could be allowed to happen, or perhaps drop
us a note about
it?
Bridget
Prentice: I cannot find the answer in this mass of paper.
If I may, I shall write to the Committee to give reassurance about what
would happen should such circumstances
arise.
Question
put and agreed to.
Resolved,
That
the Committee has considered the Civil Procedure (Amendment No. 2)
Rules 2008 (S.I., 2008, No. 3085).(Bridget
Prentice.)
2.58
pm
Committee
rose.