Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013
The Civil Procedure (Amendment No. 5) Rules 2013
The Committee consisted of the following Members:
Lloyd Owen, Committee Clerk
† attended the Committee
Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013
The Civil Procedure (Amendment No. 5) Rules 2013 amend the Civil Procedure Rules 1998 to make provision for closed material procedure in civil proceedings in England and Wales, pursuant to the provisions of part 2 of the Justice and Security Act 2013. I welcome the hon. Member for Hammersmith to his place on the Opposition Front Bench; no doubt we will continue some of the discussions that we had in the Committee that considered that Bill. Similarly, the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 amend the Rules of the Court of Judicature (Northern Ireland) 1980 to make provisions for closed material procedure in civil proceedings in Northern Ireland under the 2013 Act.
I know that some hon. Members will be familiar with the background to the rules. The provisions of part 2 of the 2013 Act were debated by the House relatively recently, and while I do not want to go over old ground or to reopen matters that have been settled, it might be helpful if I provide a brief synopsis and background so that Committee members can understand the context of our debate.
Part 2 of the 2013 Act established a CMP regime for civil proceedings in the High Court, the Court of Appeal, the Court of Session and the Supreme Court. Closed material proceedings allow national security-sensitive material that 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 other party’s interests. The other party cannot themselves see the material.
It is worth reiterating at the outset that CMPs will be available only in civil proceedings—in cases when someone is suing or challenging the actions or decisions of the Government. They will not be available for inquests or criminal trials, and they will not allow a person to be found guilty of a crime without knowing the evidence against them. A CMP will be available in proceedings only if the court makes a declaration that those proceedings
In cases in which the availability of closed material proceedings 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 at 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 an issue. The party holding the sensitive material must then apply again for individual pieces of evidence to be heard in closed proceedings, and a special advocate will be appointed to represent the interests of the other party.
In each instance, the judge must decide whether the disclosure of the material would damage national security. If that is not the case, it will be heard in open. If closed proceedings should be held, the judge will decide whether there may be a summary by way of a gist disclosed in open court to all parties to the litigation. Once that stage, which is known as pre-trial disclosure, is complete, the judge must review the original declaration to ensure that the tests are still met. If they are not, he or she must revoke the declaration. The judge may revoke the declaration at any point if he or she considers it to be no longer in the interests of the fair and effective administration of justice.
Mr Henry Bellingham (North West Norfolk) (Con): The Minister is explaining things clearly, but will he respond to a couple of points? First, contrary to what has been pushed hard in some parts of the media, will he clarify that the decision is one for the judge and that Ministers of the Crown will not have a say? Secondly, will he say something about the selection of the special advocates who will be briefed in these cases?
James Brokenshire: Although my hon. Friend did not serve on the Justice and Security Public Bill Committee, he points out an important element of the provision: the decision on whether a closed material proceeding is to be held is a matter for the judge, who may determine that it is appropriate and applicable in the fair and effective administration of justice, but equally may determine that it is not appropriate. Special advocates are, in essence, special lawyers appointed through the Attorney-General, so I hope that that gives my hon. Friend further background or clarification on how they are selected.
Given what the Minister says about the retention of judicial discretion, how does he square that with the qualification of the overriding objective under the rules through the requirement to take account of national
James Brokenshire: I hope that I will be able to address that point directly in my comments about the rules themselves, because I am aware that that point has been raised. As an introduction, however, I can tell the hon. Gentleman that the rules are always subject to the provisions of the Act itself, which clearly specifies the steps that the judge in such cases needs to take when assessing whether it is in the interests of the fair and effective administration of justice for a declaration to be made. Clearly, it is at the overriding discretion of the judge themselves to determine whether, having considered the matters before them, a CMP should be granted. This is a case of “may” rather than “must”, as we discussed during the passage of the Bill, and that is absolutely where we remain under the 2013 Act.
Heidi Alexander (Lewisham East) (Lab): In response to the hon. Member for North West Norfolk, the Minister referred to special advocates. Before he moves on to his full explanation, will he explain what representations, if any, he has received from special advocates on the rules?
James Brokenshire: I would be happy to comment on the consultation. I can tell the hon. Lady that drafts of the rules were provided to the special advocates for their consideration, but they did not make any specific representations about them.
The Civil Procedure (Amendment No. 5) Rules 2013 insert new part 82 into the civil procedure rules and make consequential amendments and modifications. New part 82 is broken into six sections; to assist the Committee, I shall speak to each in turn.
Rule 82.1 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
The overriding objective continues to apply, so the court must still further the objective of dealing with the case justly. However, it must also ensure that, by doing so, information is not disclosed that would be damaging to the interests of national security. That rule, and the rest of part 82, are subject to section 14(2) of the 2013 Act, which provides that nothing in the relevant sections of that Act, or in rules made by virtue of them,
Let me address the point made by the hon. Member for Hammersmith and specifically reinforce that principle. A recent briefing on the rules published by Justice appeared to suggest that new part 82 provides for the overriding objective and other provisions of the civil procedure rules to be set aside. That is not the case. The overriding objective of the CPR—
still applies. Following the amendments made pursuant to Lord Justice Jackson’s recommendations, that objective is also “at proportionate cost”. The court is still enjoined to deal with cases justly under rule 82.2, so it is not to ensure non-disclosure at the expense of dealing with the case justly.
Justice’s briefing also appears to suggest that the new rules somehow override or displace the provisions of the statute under which they are made. Again, that is not the case. Section 11(4)(a) of the 2013 Act provides that
That does not, however, displace the requirements of section 6(3), which provides that the court may make a section 6 declaration only if the conditions in subsections (4) and (5) of section 6 are met. The condition in subsection (5) is that
so that is a precondition for making 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.
Section II of new part 82 contains general provisions applying to all proceedings to which the part applies, including provision for hearings and the circumstances in which the court is to conduct closed hearings. Any person who intends to make an application under section 6(2) of the 2013 Act must inform the other parties to the relevant civil proceedings to ensure that all parties to litigation will know whether a CMP applies. Under the Act, the fact that there is a CMP can never be a secret.
Mr Slaughter: The Minister has caught me unawares by the speed at which he is proceeding. I wanted to deal with an issue relating to rule 82.2 in my remarks, but it might be easier to deal with it now. I am encouraged by what the Minister says, but does he not therefore think that the drafting is deficient? Will he say whether the Government intend that rule 82.2(2) will act as a fetter, which is a different intention from that under the 2013 Act? Will he also address the point that Justice makes in its brief about the meaning of paragraph 7.7 of the explanatory memorandum, which states that the procedure should not be “self-defeating” and effectively says that the same procedure should apply to section 6 as to section 7, whereas in fact the arrangements are very different?
I do not see that as being at odds with the overriding requirements set out in section 6 of the Act that govern the making of a CMP in the first place. The hon. Gentleman will recognise that the first condition under the section is that
The hon. Gentleman highlights section 7 of the 2013 Act. That section deals with the review and revocation of a declaration under section 6, with the additional safeguards and the requirement for the court to keep a declaration under review. Sections 6 and 7 are clearly connected. I note his point, which Justice has also made, about the provisions before us, but I believe they have been properly cast and do not impinge on the fundamental objectives set out in section 6, nor on the requirement on the judge to keep a CMP under review under section 7. No doubt the hon. Gentleman will wish to come back to this matter in his comments, and I will reflect further on any additional points he makes.
Section II of part 82 also makes provisions for 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 contains rules about the making and consideration of an application for a declaration that the proceedings are those in which a closed material application may be made to the court. Those provisions include the following requirements:
“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”.
That must be done within 14 days, and is designed to ensure that no closed material proceedings under the Act can be held without notice. The applicant must provide a statement of reasons to support the application, any additional written submissions and
When 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. The applicant must then serve written notice of the outcome of the application on every other party
Mr Bellingham: I am sorry to trouble the Minister again, but most of the time it will be the Secretary of State who makes the application under section 6. In what circumstances will other parties make applications, and what sort of parties are there? Presumably, in some cases, the appellant in the case could be the applicant, but in most cases it will be the Secretary of State—Her Majesty’s Government—applying for the procedure. Will the Minister give the Committee a few more details?
James Brokenshire: The Bill Committee considered that matter. There may be parties to litigation who may hold sensitive material—Government agencies, and so on and so forth—so it is appropriate for the Secretary of State to have the power to intervene in certain cases to protect sensitive information. The circumstances in which a CMP would be contemplated would be exceptional. We are talking about only a very small cadre of cases in which there is sensitive material. For example, the Government may be unable to defend an action brought against them because the evidence on which they would seek to rely is sensitive, or cannot be disclosed because it may be intercept material. That was why the matter was considered in detail in Committee and on the Floor of the House. The rules give effect to the provisions of the 2013 Act in detail, rather than setting out new principles of law that are not otherwise embodied in the substantive legislation of the Act itself.
Section IV of part 82 contains rules about the review and revocation of declarations made under section 6 of the Act—in other words, when a declaration has been granted for a CMP. 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 they are not a party—and the special advocate that it is conducting a review of the declaration 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 a declaration, as opposed to the court considering revocation of its own motion, and if the court considers that a declaration is no longer in the interests of the fair and effective administration of justice following its post pre-trial disclosure formal review.
Section V of new part 82 contains a rule about the making and consideration of an application to have set aside a certificate under section 17(3)(e) of the Act—in other words 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 what is known as 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.
I will touch briefly on the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013. Hon. Members will see that the rules for Northern Ireland are very similar to those for England and Wales, with minor
As required by the legislation, sets of the draft rules were subject to consultation with the Lord Chief Justices of England and Wales and Northern Ireland. In addition, the Government placed a version of the draft rules in the Library of the House on 11 June and shared a draft with the special advocates on 3 June. Neither of those steps was a statutory requirement or common procedure for such secondary legislation.
Mr Slaughter: It is a pleasure to be here under your chairmanship this afternoon, Sir Alan, and back debating the subject with the Minister, which we did at some length and with some enjoyment in the Bill Committee.
Notwithstanding the Minister’s concluding remarks, we regard the rules as being brought forward in some haste. The report of the Secondary Legislation Scrutiny Committee, which was published last week, stated that:
“the Ministry of Justice states that urgency is required because about 20 live cases for civil damages and some current judicial reviews all relate to sensitive national security information. Justice has published a briefing note criticising the rush and suggesting that it has not allowed the House sufficient time to ask questions about the operation of the proposed system and its potential for wider consequences.”
The enactment was on 25 June, I think, and the rules were published the following day having indeed been placed—but without any fanfare—in the Libraries of both Houses about two weeks earlier. There was no consultation. I appreciate that the Minister said that certain steps were taken, at his instigation, but no attempt was made at a fuller consultation, which would have been perfectly proper for rules of such importance, with such far-reaching significance in a controversial area, and, which, I submit, go rather further than the Act took us.
“As of 31 October 2012, there are 20 live civil damages in which sensitive national security information is centrally relevant. There are also a number of other live cases, including some judicial review challenges in which national security information is also centrally relevant. A number of these cases relate to several individuals. The overall figure includes seven new civil damages cases…which were launched against the Government between October 2011 and 31 October 2012. Three…have been settled in the last year.”
I would like the Minister to clarify whether those figures are good; whether the Government can confirm that they have effectively held cases and pushed the legislation and rules forward swiftly, so that the cases accumulated over a period of years can be dealt with under the new procedures; and what they now think will
I note that, for obvious reasons, because it applies to English cases, the relevant part of the paragraph is absent from the Northern Ireland rules. I did not notice, other than obviously technical differences, because we are dealing with a different jurisdiction, any other significant changes between the two sets of rules. The Minister may correct me on that. I simply say, therefore, for the avoidance of doubt, that the comments I am now going to make about the amendment No. 5 rules apply equally to the Northern Ireland rules, and that we shall vote against both.
I have an open question about the situation with respect to Scotland. I am not entirely clear on it. I see in paragraphs 4.9 and 5.1 of the explanatory memorandum references to the Court of Session making rules in the usual way and not requiring parliamentary approval, but being subject to parliamentary scrutiny, but I wonder how far that process has advanced, and whether the Government envisage that analogous rules to those for England, Wales and Northern Ireland will be introduced in Scotland.
James Brokenshire: We anticipate that the draft rules for Scotland—the Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Justice and Security Act 2013)—will be very similar. They will, of course, be subject to the usual rule-making procedures in Scotland. I hope that that addresses the hon. Gentleman’s question.
Mr Slaughter: I am most grateful. Returning to the main issue, the Minister was correct to say that the Bill was fought over in Committee and a number of views were put forward. In addition to the Justice briefing, which I will come back to, Liberty, Reprieve and other organisations have submitted briefings. Those well respected organisations took a fairly hard line on the Bill and stated that it was unnecessary to extend closed material procedures to civil proceedings.
The official Opposition did not take that view in the Bill Committee; we took the view that CMPs should be used very rarely in civil proceedings and with appropriate safeguards. The Minister will remember long debates in the Bill Committee about the Wiley balance and last resort. The final version of the Bill contained inadequate safeguards. The “may/must” test and the “fair and effective” test are an improvement on the original drafting, thanks to pressure from all quarters including the other place and the Joint Committee on Human Rights, but they do not go far enough. Many other views were expressed in the Bill Committee, by, among others, the hon. Member for Cambridge (Dr Huppert). I am sorry that he is not on today’s Committee, because we miss his comments.
At the end of proceedings on the Bill, we thought we knew where we stood, but notwithstanding the Minister’s helpful comments, the Government appear to have attempted to row back from that position. The rules
Our other concern is that the introduction of these rules offered an opportunity to correct clear and practical problems that were highlighted by the special advocates—perhaps not in response to the rules, given the very short time available, but certainly in all their submissions since the Green Paper. Based on their considerable experience of the process in the Special Immigration Appeals Commission and other areas, the special advocates urged the Government to reform the CMP proposals.
To summarise, briefly, we believe that the rules will change the balance. The provisions in 82.2 are imported from other legislation, and there has been a lot of cutting and pasting from the parts of the civil procedure rules that deal with SIAC, TPIMs and other areas where CMPs already operate. The difference is that we are entering a discretionary area; we are going across the piece in terms of civil justice. It is necessary to preserve the overriding objective, and the rules are not phrased in such a way as to do that. The overriding objective must be read subject to 82.2(2):
“In order for the procedure not to be self-defeating, the disclosure required for this critical stage has to be treated as if it were itself an application for permission to disclose only in closed session”.
I understand that to mean—the Minister can correct me if he wishes—that the same process that will apply to consideration within the CMP will apply at the gateway. That must be wrong. The gateway is a process of assessing whether a CMP should be invoked in the first place. Since the may/must amendment was introduced in the other place, the Government’s clear contention, which in the end was supported by some senior members of the judiciary in the other place, was that one could leave it to the judges.
On the whole, we agree, but we do think that a little more guidance is needed in relation to the last resort of the Wiley balance. However, it is the Government’s argument that may/must is sufficient to give that discretion. A judge considering whether to invoke may already have had a submission from the Secretary of State saying why he does not think public interest immunity is appropriate. It is then a matter for the judge to decide whether he should invoke CMP. His discretion should be broad, and should obviously take into account the fair and effective administration of justice.
That applies at the gateway. It is a different test within the CMP, yet that explanation appears to imply that it is the same: in other words, the overriding necessity of following national security will get in the way of the open, balanced process. The Minister is shaking his head. If that is wrong, what does the self-defeating paragraph mean, and what does the constriction of the overriding objective mean? That is the clear and simple point that must be addressed.
James Brokenshire: The reference to “self-defeating” is simply a reference to the need to ensure that the sensitive material at issue is not disclosed during the proceedings for the declaration. As I am sure the hon. Gentleman will appreciate, if the very nature of the information that one is seeking to protect through a CMP were disclosed at the outset, clearly that would be self-defeating.
Mr Slaughter: I understand that point, but this looks like the Secretary of State effectively saying, “Let’s get into the CMP now,” whereas the judge may want to say, “No, I’m going to look at the evidence that you’re putting forward, albeit with the special advocate present rather than the other party, and I’m then going to make a decision using my discretion. I’m going to say, much as I would when looking at a PII process, that I don’t believe the evidence justifies a CMP. If there is a risk to national security, it is so minor and so prejudicial that I need to conduct this in another way, perhaps through PII.”
My reading of the rules is that that is not what the Government now intend. They now intend that where there is any piece of evidence that the Secretary of State wishes to rely on, it will effectively be binding on the court to invoke and then stay within the CMP, subject to the review allowed under section 7. I do not think that this is my paranoia. Before the implementation of the Act, we had already heard loud noises of concern from the senior ranks of the judiciary. I am sure that the Minister has read the judgment in Bank Mellat v. Her Majesty’s Treasury (No. 1). The president of the Supreme Court, Lord Neuberger, commented:
“In my opinion, there was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning in relation to the substantive appeal, let alone which could have influenced the outcome of that appeal”,
“adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment.”
There was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment. If already, at this stage, that is how the Government seek to use the Act, with the rules as a mechanism for doing so, it is a bad start.
The other case that has been very much in the news recently is the Azelle Rodney inquest. Again, over a period of years, before there was a proper inquiry into the death of Azelle Rodney, the Government maintained that for security reasons it was impossible for the matter to be dealt with in the open. Yet the inquiry was conducted in the open. It appears that exactly what we warned of in debates in the Bill Committee is already coming true. The Government are using the power not as a last resort, but as a first option, because it is easier to do so and it allows the Government to have an advantage that they otherwise would not have.
I want to raise two other matters. The first is also dealt with in the Justice briefing, and relates to the differences between adopting the rules in civil proceedings and in SIAC or other types of cases in which they have previously been used. All the usual rules for civil proceedings will apply—legal aid applications, merits tests, appeals and part 36 offers. The ordinary commerce of civil litigation will apply, which it would not in SIAC and other cases, yet although it is a cut and paste job, there was no attempt to take that into consideration when drawing up the rules. I want the Minister to reply specifically on those points. How is it possible for a claimant fairly—on a level playing field—to conduct litigation, how is it possible to obtain legal aid on the basis of merit, how is it possible to respond to offers of settlement from the other side and how is it possible to deal with appeals, if they are all constrained entirely by the CMP procedure and the limited ability of the special advocate?
The rules were also an opportunity to review the concerns of special advocates and how the special advocates system operates. As far as I can see, that has simply not been done at all. In the run-up to today’s debate, I had the opportunity, even if the Minister did not, to talk to special advocates about those concerns. Of the principal concerns, the first is the prohibition on communication. After the initial meeting, once the proceedings are in play, there are to be no communications at all—none whatever, even on administrative matters. Clearly, that puts the claimant in such cases at a substantial disadvantage. In effect, the special advocate is unable to call any evidence, even if it is allowed under the rules. It is difficult therefore to challenge matters of disclosure.
Other anomalies were highlighted in the passage of the Bill, and the rules were an opportunity to address them—for example, having a database of closed judgments, or late disclosure abuses by the Government side—but, again, there is nothing in the rules. This is a missed opportunity to address such issues.
I hope that the Minister can address the points that I have raised. These rules will be passed and will come into effect, but I suspect that we will be back looking at them in a relatively short time, because effectively they have been lifted off the shelf; they have not been made fit for the purpose of dealing with civil proceedings.
Issues of principle arise in terms of the legislation’s overriding objective, as well as issues of practicality in terms of whether the rules will function properly—as they should—to guide the conduct of litigation on this matter.
Adam Afriyie (Windsor) (Con): I shall keep my remarks brief, because I am conscious of time. However, it strikes me that this is probably the most significant statutory instrument, or set of statutory instruments, when it comes to closed material proceedings and the issue of civil liberties versus state control, if you like, that I have seen since I have been in Parliament, so I felt that it would be remiss of me if I did not at least make a couple of observations and ask one or two questions of my hon. Friend the Minister. He has presented the case
I think that most people recognise that closed material proceedings are a necessary evil within our legal system, to protect our national security and the national security of other nations that we are allies with. However, obviously, none of us wants to see secret courts, in the common or popular conception of them. I have some observations or concerns, and I am sure that my hon. Friend the Minister will be able to put my mind at ease when he sums up.
First, when it comes to the special advocates, we are aware of the routine for ensuring quality but is the role of the special advocate appealable? Can they be challenged through the court system after the court case has taken effect, or can they be removed during the procedures?
My second question is about the presentation of the material involved, whether it is in open session or pre-trial summary. Again, is that material, or the summary of that material, appealable? If it is, given that much of that material will not be openly or publicly disclosed, in what way is it appealable without undermining the closed material proceedings themselves?
My third area of concern is that it seems that the Secretary of State is the key source of request for closed material proceedings, but there also appear to be one or two exceptions. In paragraph 7.10 in the explanatory notes, there is a little caveat. Paragraph 7.10 refers to material that might be
Could my hon. Friend the Minister just clarify what that means? Also, given that other parties may be able to apply for closed material proceedings, is it possible for an overseas intelligence service to apply for such proceedings? If so, does that happen through the Secretary of State, or is there another channel that they might use?
My final concern relates to the review of the effect of these orders. Clearly, there will be an annual report to Parliament; we know the nature and form that such reports take. Then it is said that there will be a proper review after five years. Given that this is a large extension of the current CMP powers to the civil and senior courts and county courts, does my hon. Friend the Minister think that such reporting will be sufficient to get to the heart of whether a new problem arises in the new scheme of proceedings?
We all recognise that courts are evolving and it is therefore necessary for CMPs to evolve with them, but the rules will enjoy my reluctant support. They are a necessary evil. I would like closer monitoring of what the results of the rules will be in the years to come.
Jeremy Corbyn (Islington North) (Lab): The hon. Member for Windsor raised some good, pertinent and strong points, with which I concur, although my conclusion is slightly different from his. I shall make a number of points briefly. We have discussed many times secrecy in court proceedings and the difficult area between an
Every time the House of Commons votes on anti-terror legislation with exceptional measures, the legislation always covers a short time, it always has a sunset clause, it is always open to review and there is always some kind of super-special person who will investigate on our behalf and let us know what is going on. The reality is that ever since the Prevention of Terrorism (Temporary Provisions) Act 1974, which was passed through the House in record time without much consideration and with a huge amount of fervour, we have had some form of anti-terror legislation that limits the power of criminal courts and criminal investigations. I say that as a matter of principle, and although I accept that people who have been accused of very dangerous things should be put on trial, I would much rather we used the criminal law rather than special courts and special process. The criminal courts, and any other court, have always had the facility to take evidence in camera if they wish to do so, but the idea that we can conduct a substantial section, if not a whole case, in CMP is extremely difficult to accept.
In common with the hon. Member for Windsor, I would like the Minister to say how the European convention on human rights applies. Clearly, the ECHR has significant provisions about the rights of independent access to trial and independent justice, which are not necessarily compatible with this measure. What exemption does the Minister expect?
When will a review take place and how seriously will its findings be taken? Is it just an act of almost simple procedure by the House of Commons to renew this thing? Will we look at it once a year and renew it every five years, as has been the consistent practice with all anti-terror legislation? I would like us to operate according to the principle that such a provision is very, very exceptional law, rather than the exception becoming the normality, which has become the practice over the past almost 40 years in Britain. That is a great shame.
At the heart of the matter is the accountability of the security services, because CMPs are designed to protect their evidence. In a democracy, if the security services are to mean anything, they must be accountable for what they do: the quality of the evidence they put forward; the performance of their activities in collecting evidence; and what is achieved from their activities. It is our job as parliamentarians to question severely what they do and not willingly to give them the anonymity of CMPs and the cover of closed proceedings, which prevent them from being made as accountable in law as they ought to be. I readily concede that such matters are not easy, but we have a duty as parliamentarians to hold not only the Executive to account, but to hold state services, in this case the security services, equally to account.
Mr Bellingham: I have four part-observations, part-questions. May I take the Minister back to section 6, which allows for any party to apply for a declaration? When I intervened, I was not trying to push him on the occasions when Government agencies and arms of Government would apply as a party, and the party in question would almost certainly be the Secretary of State. What I had in mind were other parties, perhaps non-Government parties. Will he comment on that? Presumably, the procedure is open to non-state parties to a particular action in a civil court, so some further details would be appreciated.
So article 6 is referred to in that section and in other sections as well. The Minister obviously knows a great deal about the ECHR. Will the matter be considered in the Government’s review of the ECHR? I can certainly envisage circumstances in which there will be significant difficulties, although I share the view of my hon. Friend the Member for Windsor that the measure is in many ways a necessary step. In terms of civil liberties and transparency, there will be arguments and there will be regrets, but it is necessary in terms of national security. Will the Minister comment on the ECHR and how he sees it?
On the point made by the hon. Member for Islington North about the review and the report to Parliament, can the Minister say what form it will take? It is extremely important that Parliament is given the chance to review the issue in less than five years. We could have a debate in perhaps a year, with a statement made by the Secretary of State, and perhaps a regular review after, say, every two years. I think that an assessment every five years is simply too long a period, given that we are talking about something that is of great importance to national security. This procedure is a significant departure from existing procedures and rules.
I represent a constituency in East Anglia, where Norwich Pharmacal was a well-known case involving a pharma company and Customs and Excise. In that case, action was taken by a third party that had connections to HMG. It was supplying information that was potentially damaging to the plaintiff. That is how the rules came about. If there was action that amounted to wrongdoing, the third party could be not conjoined, but the evidence and activities of that third party could be brought to the attention of the court.
Let us take an example of a terrorist situation. In country A, a terrorist group sets off a bomb that kills people and in country B the terrorists are arrested, partly on the basis of information supplied by, say, the UK security services to country B. It might be that the intelligence supplied by the UK intelligence services emanated from a third country, an ally. Let us say, for
I am all in favour of the UK’s being the go-to place for arbitrating disputes; I do not mind London becoming the divorce capital of the world and I do not mind parties coming to London to deal with their commercial disputes, but when terrorist organisations or criminals who have quite a vague claim against the UK Government mount cases here under the Norwich Pharmacal procedures, that is of great concern. The Government are right, under the relevant provision, to deal with the Norwich Pharmacal point in this way. I hope the Minister will make it clear to the Committee that the wider importance of Norwich Pharmacal, which was established nearly 40 years ago, will remain in place, and will not be undermined in terms of the civil remedies that companies and individuals in this country will have available to them, if parts of Government behave in a way that can enhance or perhaps escalate a potential wrongdoing.
I should be grateful if the Minister could give me some more information. Like my hon. Friend the Member for Windsor, I am a reluctant participant, in the sense that I should have liked to serve on the Bill Committee. We are taking an important step. It is a great pity that many more members of the wider public are not taking an interest in this afternoon’s proceedings, because I should argue that this is one of the most important things that the House is doing over this fortnight.
As a consequence of provisions of the Justice and Security Act 2013, in practice nothing that is currently heard by the courts would not be heard under the Act. It is important to make that statement. If evidence would currently be heard in open court, it will still be heard in open court, following the application of the provisions. The Act will increase scrutiny of the Government and security services, by ensuring that civil cases, which are currently not heard at all, will be heard. The point being that if the Government are sued, they can only defend themselves by reason of evidence that would be sensitive—perhaps intelligence material or intercept material—with the consequence that they have no option but to settle those cases, and justice is therefore denied.
It is important to understand the policy objective behind the provisions in the Act. The rules effectively provide further detailed provisions to implement those in the Act. I think the principle is accepted by Opposition Front Benchers—the necessity of having a mechanism to allow such cases to be heard and tried, and for justice to occur—albeit that they clearly continue to be concerned about the detail of the provisions.
Jeremy Corbyn: The previous Secretary of State for Justice raised the issue of the sum paid by the Government in compensation to avoid going to court, using the same words that the Minister has just used, saying that they
James Brokenshire: I cannot give the hon. Gentleman a figure this afternoon, because that assessment, at that level of detail, has not been made over an extended period to provide a specific figure. However, it is a significant sum, relating to the Government’s not being able to proceed with defending themselves in an application. Settlements may run into hundreds of thousands of pounds and may aggregate in terms of millions of pounds. Yes, it is about making payment, but it is also about ensuring that cases are heard effectively.
I stress that the provision is not trying to hide wrongdoing, but to ensure that cases are heard properly. Clearly, if a court considers sensitive material—yes, in closed proceedings—it has been able to consider that material. Undoubtedly, if there has been wrongdoing on the part of any agency, the court will be able to consider that and weigh it in its consideration of the litigation that it is seeking to settle. I therefore argue quite strongly that the provision is about securing clearer and more effective justice and allowing consideration of all relevant material for the court to assess what the right judgment at the end of the day should be.
and that that “causes significant reputational damage”. It has nothing to do with justice being denied. He might equally say that conducting proceedings in secret where a party does not even know the reasons for it at the end of the day is likely to cause far more reputational damage to the Government.
James Brokenshire: The hon. Gentleman will have heard my argument before, in the long hours of debate that we had in the Bill Committee, and I do not wish to re-rehearse them and go over old ground again. If our security services are accused of wrongdoing and they have to settle the case, that can be presented to some as an admission of liability. However, if all the evidence can be presented in court, they will be able to show the full picture and all the issues in the case, allowing the court to reach a fully informed determination.
Mr Slaughter: I will not pursue the argument, because we are not going to agree on that, or on whether alternatives have been properly investigated and whether the provision is the fairest process there could be. However, the Minister made another point. He said that there will be no diminution of the quantum of proceedings that take place in the open. I am not sure that that is right. I have read out quotes regarding Bank Mellat. I do not know whether the Minister has read the Azelle Rodney inquest report, in which Sir Christopher Holland said that the inquiry,
“publicly received intelligence evidence, both from witnesses who were called in open and from documents that have been placed on the Inquiry’s website. It received no intelligence evidence in closed session.”
Is the Government’s impetus not to push more and more matters into secret proceedings through the Act and the rules, when those proceedings can, quite properly and adequately, as the Mellat and the Rodney inquiries show, be conducted in the open?
James Brokenshire: I know that some have suggested that inquests should in some way be subject to some sort of CMP procedure. That is not the Government’s position. It would not be right for me to comment on individual cases. However—I will come on to some points made by my hon. Friend the Member for Windsor on this matter—we are clear that we will establish clear safeguards and protections, which I think will ensure that nothing that is currently heard in open will be heard in closed proceedings as a consequence of the Act or the rules.
Let me address a point highlighted by my hon. Friends the Members for Windsor and for North West Norfolk on summaries. I hope that the Committee will allow me briefly to get into some technical legal issues to explain that. The provision is derived from the principle of summarising closed or sensitive material where possible, without damaging the public interest. That exists in all CMPs and is technically known as gisting. However, in some contexts, there is an additional need for what is known as the AF (No.3) disclosure requirement—whereby the individual must be given sufficient information about the allegations against him to be able to give effective instructions to his special advocate—so as to comply with article 6, which is the right to a fair trial. The Government are committed to putting as much information as they can in the public domain and to complying with our obligations under article 6 of the European convention on human rights. The hon. Member for Hammersmith and my hon. Friends the Members for Windsor and for North West Norfolk have highlighted the provisions in the 2013 Act that are relevant to that, but we are conscious of the fact that gists, of themselves, may disclose information, and that such disclosure may impact on national security. That was why careful consideration was given to those matters when we considered the Bill, and the legislation has been framed to recognise some of the challenges around the AF (No.3) case.
The law requires that, in certain circumstances, the disclosure to the excluded person must contain a sufficient level of detail for proceedings to be fair. In those cases where article 6 necessitates gisting of the form required in the AF (No.3) case and advocated by special advocates, section 11(2)(c) of the 2013 Act provides that the court must require such a summary, even when it is damaging to national security. The Government then have the choice of taking the risk of making that damaging disclosure or choosing not to rely on the material. The court can require the Government to make concessions or take other steps as the court may specify. Those provisions are detailed, and we considered them at great length during the passage of the Bill.
In the context of the rules for civil damages cases, I should say that individual claimants will be making allegations against the state and will therefore be fully aware of the details of their allegations. The issue of gisting and summarisation should, we believe, be less acute in such cases, as the individuals will be extremely well placed to instruct a special advocate representing their interests because they will know the basic facts at issue.
I wanted to take on the challenge made by the hon. Member for Hammersmith regarding the speed with which the rules were introduced. Throughout the passage of the Justice and Security Bill, we were clear that our priority was for its provisions to be placed on statute and to be effective as soon as possible so that we could address the significant concerns that gave rise to the legislation in the first place. The court rules are an important part of giving practical effect to the Act, and it was therefore right that they should be in place as soon as possible after the Act’s commencement, as we made clear throughout our consideration of the Bill.
Let me give some reassurance about the requirements in respect of the court and the suggestion that the rules in some way displace the court’s ability to decide whether a CMP should be declared. It is important to understand—I tried to explain this during my intervention on the hon. Member for Hammersmith—that, in respect of the application seeking a CMP, it would clearly be inappropriate to disclose the relevant material to the other side. Therefore, for this narrow purpose, it would seem rather odd to apply the issues of the fair and effective administration of justice at the point the hearing is being sought. However, when determining whether a CMP should be granted, the court must give effect to the tests that are set out in the Act, which include the consideration of whether the fair and effective test is met. The court still has the discretion to decide whether a CMP should be granted, even at the outset. The court is then obliged to keep that decision under review and, as part of the disclosure exercise, the special advocates will consider each item of evidence in detail.
That is how CMPs operate in some procedures and proceedings already on the statute book, including in consideration of terrorism prevention and investigation measures, and in other arrangements in which the special advocates have an essential role in considering each of the items in great detail. They will argue out whether an item of evidence should be in closed or open proceedings. In our judgment, the special advocates do a good and effective job, operating effectively and challenging the non-disclosure of material. In many cases using CMPs, including in SIAC, special advocates have argued successfully, and the Government have lost cases or parts of cases as a consequence.
The special advocates have an essential role, but even after their consideration of material, and after that whole process, the judge must make a further assessment as to whether the CMP should remain in operation in respect of the litigation before the court. There are therefore a number of important safeguards throughout the process relating to the consideration of evidence and the CMP.
We are conscious of the challenges faced by special advocates. That is why we have created a database of summaries and closed judgments, to make it easier for them to access details of relevant similar cases that have
On whether a special advocate can be challenged or removed, section 9(4) of the Act covers the relevant provisions on scope. Special advocates are appointed by the Attorney-General. If, in exceptional circumstances, it is thought that they should be removed, because of misconduct for example, the Attorney-General is able to remove and replace them.
My hon. Friend the Member for Windsor asked whether special advocates can appeal decisions. Yes, they can. They can appeal decisions in the same way as an ordinary litigant in respect of a determination by the courts. I hope that that gives some assistance.
My hon. Friend the Member for North West Norfolk highlighted the issue of other parties potentially seeking a CMP. In essence, both parties have the ability in litigation to be able to seek a closed material procedure. That matter was considered at length in the Bill Committee. He also asked whether overseas intelligence services might be involved here. It is difficult to imagine the circumstances in which that would be the case, because overseas intelligence services would not ordinarily submit to the jurisdiction of a UK court, and the principle of state immunity also means that the court may not consider that it has jurisdiction to entertain a claim against a foreign Government agency. It is a little difficult to understand hypothetically how such a situation might arise.
Adam Afriyie: My concern is this: if the evidence put forward by someone bringing a case against the Government contains material that has an impact on overseas agencies, am I right to think that whether that material is admissible is decided by the Secretary of State? How does that work?
James Brokenshire: We are getting into the territory of reverse CMP arrangements, if I may describe it like that—in other words, cases where the other party to the case effectively seeks a CMP in respect of material that they hold and believe may be sensitive. That is contemplated within the Act’s provisions. The potential to have a reverse CMP is provided for. I hope that that assurance is of assistance to my hon. Friend.
I turn to the concern highlighted by my hon. Friend the Member for North West Norfolk on the Norwich Pharmacal jurisdiction. He is right to highlight how that jurisprudence developed. When the Norwich Pharmacal judgment was handed down, there was no contemplation that that could have application to national security cases. Equally, I hear his concern on the importance of the principle of that jurisdiction being maintained. I hope that, if he were to turn his attention to the relevant provisions of the Act—sections 17 and 18—he would see that that is narrowly framed in the context of national security cases.
There is genuine concern that if the Norwich Pharmacal jurisdiction were to be retained as it is now, that could have a significant impact on intelligence sharing, because the control principle that underlines intelligence sharing and provides control over the intelligence shared could be challenged or unpicked as a consequence of that jurisdiction. That is why the provision was introduced in the Act—and, indeed, supported in all parts of the House, in terms of how it was framed and its driving purpose. That is why it was adopted.
The hon. Member for Hammersmith asked me about the number of cases. The figures in the explanatory memorandum were, of course, accurate for the periods referred to. We have not updated those figures, but we believe that they are broadly comparable. Future volumes of cases are clearly difficult to predict, given that we are in essence talking about cases that would be brought against the Government, but we do not anticipate any step change in volumes. On timing, cases progress according to timetables set by the court, and I am sure that the court would seek to ensure that those timings are addressed robustly.
On the rules of court and their application to legal aid, it is not easy to see what the rules should have been expected to provide for in relation to legal aid and, therefore, what the nature was of the rules contemplated in the Justice and Security Act in the context of the framing of the rules before the Committee. I am, however, happy to reflect further on the point that the hon. Member for Hammersmith flagged up this afternoon, to see if there is anything further that I can offer. It is difficult to consider what specific provision he was alluding to.
Mr Slaughter: Very briefly, a merit test is attached to any legal aid application. It is difficult to formulate that test, given the knowledge that the claimant and their representatives have at that stage. I use the example of legal aid, but also the example of how to respond to settlements. The claimant might be caught under the part 36 rules. Any application that the claimant may wish to make will be limited by their limited access to the proceedings. That is obviously part of the CMP process, but surely if the Government are introducing it in civil proceedings, it is up to the Government to find a solution to those problems.
James Brokenshire: I suppose that, in essence, the concept of a CMP is already understood and recognised in respect of proceedings before SIAC and, for example, TPIM matters. Admittedly, the latter context is slightly different, but I still struggle to see how that would be addressed in the rules in that way. However, I will certainly write to the hon. Gentleman if further thoughts come to mind.
He highlighted the differences between the rules for England and Wales and the rules for Northern Ireland. The main difference in the Northern Ireland rules is that there are several variations in terminology. As these are statutory rules rather than a statutory instrument, they are subject to the Interpretation Act (Northern Ireland) 1954. For instance, the Northern Ireland rules say “coming into operation” instead of “coming into force”, and as the rules will be inserted into the Northern
I am conscious of the time, and I am equally conscious of the final point made by my hon. Friend the Member for North West Norfolk about the time period for review of CMP procedures. The issue was discussed in detail when the Bill was considered, and section 13(2) of the Act reflects the fact that a review will be conducted after five years. One of our considerations, as my hon. Friend will know from his legal experience, is that cases can take quite a long time to go through the courts. It is difficult to see how it could be possible to have a sensible review after 12 months, given that very few cases will have come to court and been considered in that time. It was therefore felt that a more considered analysis would be available over a long period, but undoubtedly Select Committees will keep the Act’s provisions under close consideration. It is obviously open to them to launch inquiries before the formal provisions under the five-year period of the Act come to fruition.
The Civil Procedure (Amendment No. 5) Rules 2013