Session 2010-11
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General Committee Debates
Delegated Legislation Committee Debates

Rules of the Court of Judicature (Northern Ireland) (Amendment No. 3) 2010, Civil Procedure (Amendment No. 4) Rules 2010


The Committee consisted of the following Members:

Chair: Mr Dai Havard 

Blears, Hazel (Salford and Eccles) (Lab) 

Burt, Lorely (Solihull) (LD) 

Chishti, Rehman (Gillingham and Rainham) (Con) 

Coffey, Ann (Stockport) (Lab) 

Cruddas, Jon (Dagenham and Rainham) (Lab) 

Donaldson, Mr Jeffrey M. (Lagan Valley) (DUP) 

Goodwill, Mr Robert (Scarborough and Whitby) (Con) 

Hanson, Mr David (Delyn) (Lab) 

Hoban, Mr Mark (Financial Secretary to the Treasury)  

Jones, Graham (Hyndburn) (Lab) 

Jones, Mr Marcus (Nuneaton) (Con) 

Kaufman, Sir Gerald (Manchester, Gorton) (Lab) 

Kirby, Simon (Brighton, Kemptown) (Con) 

McFadden, Mr Pat (Wolverhampton South East) (Lab) 

Perry, Claire (Devizes) (Con) 

Sharma, Alok (Reading West) (Con) 

Swales, Ian (Redcar) (LD) 

Williamson, Gavin (South Staffordshire) (Con) 

Mark Etherton, Committee Clerk

† attended the Committee

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Third Delegated Legislation Committee 

Monday 14 February 2011  

[Mr Dai Havard in the Chair] 

Rules of the Court of Judicature (Northern Ireland) (Amendment No. 3) 2010 

4.30 pm 

The Financial Secretary to the Treasury (Mr Mark Hoban):  I beg to move, 

That the Committee has considered the Rules of the Court of Judicature (Northern Ireland) (Amendment No. 3) 2010 (S.R. (N.I.), 2010, No. 430). 

The Chair:  With this it will be convenient to consider the Civil Procedure (Amendment No. 4) Rules 2010 (S.I., 2010, No. 3038). 

Mr Hoban:  It is a pleasure to serve under your chairmanship, Mr Havard. Those of us who are veterans of the proceedings on the Terrorist Asset-Freezing etc. Bill in 2010, including the right hon. Member for Delyn (Mr Hanson), are well aware of the changes that that legislation introduced in creating a merits-based appeals route and in shifting the final designation from reasonable suspicion to reasonable belief. Those two principal changes in the Terrorist Asset-Freezing etc. Act 2010 require court rules to be amended as a consequence, and the two instruments before us achieve just that. 

These rules were needed quickly because transitional provisions in the Act deem designations in force under the Terrorism (United Nations Measures) Order 2009 to have been made under the 2010 Act for a period of three months to ensure continuity of asset freezes. Rules therefore needed to be in place to deal with any challenges by designated persons that were prompted by that provision. I can reassure the Committee that the Lords Chief Justice of England and Wales and of Northern Ireland were consulted on the draft rules. The Civil Procedure Rule Committee was informed that the Lord Chancellor would be making rules to provide for asset-freezing appeals and was shown an early draft. 

The two instruments were laid before Parliament on 23 December 2010 and came into force the next day. The rules of court made by the Lord Chancellor for designation appeals amend part 79 of the civil procedure rules and order 116B of the Northern Ireland court rules. I shall set out the main provisions, which are essentially the same for both sets of rules. 

Part 79 and order 116B were created following the passage of the Counter-Terrorism Act 2008 to provide rules of court for financial restriction proceedings, including asset-freezing proceedings. Both sets of rules cover the use of closed information and special advocates and are intended to ensure that information is not disclosed contrary to the public interest while ensuring that proceedings are properly determined. The existing provisions

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apply judicial review principles to such challenges. Those remain in force for decisions—such as challenges in relation to asset freezing licensing decisions—that remain subject to judicial review principles. 

There are three strands of amendments that allow for appeals. First, rule 79.1 and rule 1 of order 116B are amended to apply the general provisions concerning the appointment of special advocates, the requirements for disclosure and procedures for determination of proceedings also to designation appeals. Secondly, a new section or part is inserted into both sets of rules. That covers the mechanics of starting an appeal, by setting out the details to be included in the notice filed to start an appeal and the material to be filed with the notice. It also applies existing rules to any application to the Court of Appeal following a High Court determination. 

Thirdly, one substantive amendment is made to the general provisions in both sets of rules as they apply to appeals. I shall spend some time explaining that. Both rule 79.23 and order 116B rule 28(1) require the “disclosing party”—in this case, it will be the Treasury—to search for material that is relevant and, under rule 79.23(1)(b) and rule 28(1)(b) respectively, to file and serve material on which the disclosing party relies; which adversely affects the disclosing party; which adversely affects the other party; or which supports the other party. There is an exception for disclosure of “closed material”, which is dealt with separately. 

A difficulty arises because the definition of closed material in the rules does not cover material that a party holds and that adversely affects not him but the other party, but that he does not wish to use. If the Treasury holds sensitive information that supports the case for designation but that, for reasons of national security, it does not want to rely on in an appeal, then under the current wording of rule 79.23 and rule 28(1) of order 116B, it could be argued that it should be disclosed. We do not agree with that interpretation. There are obligations in the rules to ensure that disclosures of information are not made where they would be contrary to the public interest. We are therefore using this amendment to make clear the parties’ disclosure requirements as far as the rules apply to appeals. We will also be asking the Civil Procedure Rule Committee and the Northern Ireland Court of Judicature Rules Committee to exercise their powers to remove this provision from their rules for other financial restrictions proceedings. 

I stress that this change does not adversely affect the appellant or the proper determination of the appeal; nor will it affect the Treasury’s obligation to disclose all information that adversely affects the Treasury’s case or supports the other party’s case. Future amendments to part 79 or order 116B will be made by the Civil Procedure Rule Committee or the Northern Ireland Court of Judicature Rules Committee respectively. 

I encourage the Committee to support the two instruments. They implement the provisions of the 2010 Act, which was subjected to detailed scrutiny in this House and in the other place and received the consent of both sides of the House. 

4.35 pm 

Mr David Hanson (Delyn) (Lab):  I welcome you to the Chair, Mr Havard, and I thank the Minister for his explanation of the instruments. 

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The Minister will know that when we considered the Terrorist Asset Freezing etc. Bill—possibly in this very Room, although I have lost track of which Rooms we have used over the past few weeks—the Government had the full support of the Opposition. Indeed, he will know that the Bill had its genesis when the then Member for Portsmouth North, Sarah McCarthy-Fry, and I were Ministers in the previous Labour Government, and when I was responsible for counter-terrorism and policing. Given the nature of that legislation, we considered it in record time. 

The instruments before the Committee simply extend that legislation to allow court rules to be revised in light of the 2010 Act to allow for appeals against designation, both interim and formal. The Minister will know that in the other place and in Committee we explored safeguards that allowed people to appeal against designation, and the instruments put those safeguards into practice. I would be interested to know how many individuals have exercised the right to appeal against designation, and in due course I may table questions on that aspect. I suspect that history will show that not many have done so,

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because people will know that information held on them will be subject to greater scrutiny, which could cause difficulties in their way of life. 

The Minister also has our support on the matter of disclosure. We agree that actions taken by the Treasury in this instance require a less than fulsome approach to disclosure, for reasons of national security among others. 

I commend the instruments to my right hon. and hon. Friends. I hope that the Minister will implement them speedily. 

Question put and agreed to.  

Civil Procedure (Amendment No. 4) Rules 2010

Resolved, 

That the Committee has considered the Civil Procedure (Amendment No. 4) Rules 2010 (S.I., 2010, No. 3038).—(Mr Hoban.)  

4.38 pm 

Committee rose.