Civil Procedure (Amendment No. 4) Rules 2023
(9 months, 2 weeks ago)
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Lord Stewart of Dirleton
That the Grand Committee do consider the Civil Procedure (Amendment No. 4) Rules 2023.
Relevant document: 8th Report from the Secondary Legislation Scrutiny Committee
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, this instrument amends the Civil Procedure Rules 1998 to provide a closed material procedure for court proceedings relating to prevention and investigation measures. I will refer to these as STPIMs —state threat prevention and investigation measures—to distinguish them from the familiar acronym TPIMs, or terrorism prevention and investigation measures. I am pleased to report that the Government have announced the appointment of Jonathan Hall KC as the independent reviewer of state threats legislation. As part of that role, he will have oversight of the STPIM regime.
STPIMs are new measures established under provisions in Part 2 of the National Security Act 2023 which closely replicate the provisions for TPIMs in the Terrorism Prevention and Investigation Measures Act 2011. STPIMs provide a suite of restrictive measures which can be used, where necessary and proportionate, to prevent, restrict and disrupt an individual’s further involvement in state threats activity, where prosecution and other disruptive actions are not possible. STPIMs will be used sparingly and as a measure of last resort to mitigate the immediate threat an individual poses while they continue to be investigated by the authorities.
STPIMs require a specific procedural provision to be workable. This instrument, while not establishing STPIMs, makes that procedural provision to enable their operation. The imposition of STPIMs requires the Secretary of State’s approval and the permission and review of the High Court. It also contains a procedure for appeal by the STPIM subject. This statutory instrument amends the Civil Procedure Rules 1998 to provide the court with a bespoke closed material procedure for proceedings relating to STPIMs. The procedure includes, in particular, application by the Secretary of State for permission to impose measures, directions for a review hearing after the imposition of the STPIM, appeal against the imposition of the measure or any other determination in connection with the STPIM. Both the review hearing and any appeal hearing will be determined on judicial review principles.
These cases will inevitably involve sensitive material. This instrument therefore sets out a procedure to enable sensitive material to be relied on by the Government and for the evidence against the STPIM subject to be tested by the court through a closed procedure which will ensure that it can be adequately protected, in the public interest. This rule change is effected by amending Part 80 of the Civil Procedure Rules, which contains rules relating to TPIM proceedings, so that they cover the equivalent STPIM proceedings.
The Government have committed publicly to provide operational partners with the tools needed to combat state threats. STPIMs are important measures within this toolkit and this instrument is vital in ensuring that they are a usable tool which can be fully defended and justified in our courts through both open and closed proceedings. Given the sensitivity of the evidence, which will be a key component in the reason why an individual cannot be prosecuted and why the use of an STPIM is necessary, it would fundamentally undermine the scheme if closed proceedings, where sensitive intelligence and national security arguments can be made, were not available.
Lord Marks of Henley-on-Thames (LD)
My Lords, in what is plainly a crowded Committee, I shall be brief. The Minister referred to STPIMs. I shall also refer to Part 2 notices, in acknowledgement of the fact that the Explanatory Note uses that phrase, while the Explanatory Memorandum uses the STPIMs formula. I say at the outset that we are delighted to hear that Jonathan Hall KC has been appointed the reviewer of STPIMs. His work in this field is well known and widely admired, and it is very welcome that he is going to take on this burden as well.
The Minister explained the nature of STPIMs and of the conditions on which they are to be implemented, and that this SI in effect amends Part 80 of the CPR to enable rules concerning hearings relating to TPIMs to be applied with all necessary changes to Part 2 notices concerning STPIMs. It is plainly sensible that that should be done. I have read Part 80 and there is no material need for any distinction between the procedures applicable for hearings relating to TPIMs and the new hearings relating to Part 2 notices.
That said, I have a couple of questions. Broadly speaking, this statutory instrument plainly follows the need for a statutory instrument to introduce a procedure for the new orders. This is the right procedure, so we welcome the statutory instrument to that extent. Of course, in a volatile world and volatile conditions relating to terrorism, I cannot at this stage ask the Minister to predict how often STPIMs will be necessary because we cannot tell, but my questions concern the use of the urgent procedure under Schedule 8 to the National Security Act, which provides that the Secretary of State may impose STPIMs in urgent cases without court permission. The Minister referred to court permission being required in the general case. We hope that that is the general case and that it is only cases of real urgency that will give rise to the imposition of these measures.
The schedule gives power for the Secretary of State to impose the measures without permission if he or she thinks that the urgency of the case so requires. In such a case, the Secretary of State must then refer the case to the court for confirmation of the measures after they have been imposed, first for a directions hearing within seven days and then for substantive review. I therefore ask the Minister to indicate, in so far as he is able to do so, how often he would expect the urgent cases procedure to be used as a proportion of the overall number of STPIMs. That is important in the context of orders that have no warning, effectively, whereas when the application for permission is made the person against whom they are going to be made knows something about them.
I also seek an answer from the Minister, as far as he is able to give it, as to how long he would expect confirmation proceedings to take after the directions hearing. We recognise that closed proceedings will very often be involved and that the use of a special advocate, which is envisaged in the Act and the statutory instrument, carries with it its own complications in respect of the late appointment of a special advocate to represent the interests—in so far as he does so—of the person against whom the measures are to be taken. If the Minister can give us some indication of how he would expect a Secretary of State to approach those issues, and how he would expect a court to respond, it would be helpful. Apart from that, we welcome the instrument.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble and learned Lord, Lord Stewart of Dirleton, for introducing this SI. We support it, as we did in the House of Commons. I open by noting the sad irony that the Minister who introduced it in the other place has signalled he will stand down from Parliament in due course. I know he is currently still a Minister, but he is standing down for fears for his personal safety.
Lord Ponsonby of Shulbrede (Lab)
My Lords, when the Minister introduced this SI, he explained the nature of the STPIMs and how they relate to TPIMs and said it is natural that this SI amends the Civil Procedure Rules 1998. Although I have plenty of briefing on the background of the reason for this, I want to reiterate the two questions posed by the noble Lord, Lord Marks, and add a third question of my own.
First, the noble Lord asked how often STPIMs will be necessary. The Minister can probably not put a number on that, but perhaps he will be able to give a figure for the proportion of the overall STPIMs in which the urgent procedure will be necessary and the procedure will be followed without court permission. I am not quite sure whether court permission is provided retrospectively if the urgent procedure is used. Secondly, the noble Lord asked how long after a court direction the proceedings will take place. His questions were really about the management of the proceedings.
I was just recollecting that these proceedings are difficult to explain and understand, although they have been in place for probably 10 years or more and are dealing with some of the most intractable problems that we see in our country, terrorism threats. What should and must underpin this is that there is a fair trial underlying all these proceedings, however complex and difficult they are—that we as the British state, if I can put it like that, and the Government, believe that the underlying process is fair. It is almost a philosophical question for the Minister. How do the Government review the processes, assess what the judges do, and listen to the judges who oversee those processes, to have confidence that the underlying process is fair, even though it is not disclosed to the people who are subject to it?
As I said in my introduction, it casts a slight pall over the whole thing that Mike Freer has announced his intention to resign from Parliament, or not to stand again in due course. We in the Opposition support these measures, but there are fundamental questions which we must continue to ask ourselves. I look forward to the Minister’s response.
Lord Stewart of Dirleton (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, pointed out, it is scarcely a packed Committee; none the less, the contributions from the noble Lord and from the noble Lord, Lord Ponsonby of Shulbrede, have been of a thoughtful character and, indeed, merit the label “philosophical”, which the noble Lord, Lord Ponsonby, attached to his closing submission.
I am grateful for those contributions and for the broad indication that, while neither of the noble Lords who spoke began to approach the idea of giving His Majesty’s Government a blank cheque in relation to these provisions, and they demanded further scrutiny, none the less, they are broadly speaking in support of the measures in this statutory instrument.
I shall address the questions that were put to me. The noble Lord, Lord Marks of Henley-on-Thames, asked—and the noble Lord, Lord Ponsonby of Shulbrede, echoed the question—about the frequency with which the urgent procedure will be used. I start from the proposition that, as the Committee is aware and has heard, these provisions relating to STPIMs substantially reflect the provisions relating to TPIMs. To a certain extent we can extrapolate from the use of TPIMs some predictions, although the noble Lord, Lord Marks, accepts that it would be a very difficult task to estimate how many. But we can extrapolate from the TPIM experience something which I hope will address the Committee’s concerns. That allows me to say that we expect that the urgent procedure will be used very rarely. It has not been used in relation to TPIMs since the TPIM Act came into force in 2011. As I say, we would expect that the experience in relation to STPIMs would broadly reflect that.
Identifying a case as being urgent would not be a matter of seeking to avoid scrutiny. An urgent case will be one in which notice is sought; that notice must contain justification for the approach and the matter must be referred immediately to the court, which must consider the case within seven days of the notice being imposed. The court will apply exactly the same principles as if it had been consulted in advance and will have the power to quash the notice, or any of the measures specified in it.
I can advise the Committee that, while the experience of TPIMs has been that none has been overturned altogether, the courts none the less have acted anxiously and vigilantly to observe the manner in which they are to be applied and have adjusted, from time to time, certain of the terms of orders that have been made. The individual has a right to a full, automatic High Court review of the case, and a directions hearing in relation to that must take place within seven days of the court confirming the imposition of measures.
Reference to directions hearings allows me to digress for a moment to offer the Committee an assurance that, while that procedure and this statutory instrument apply to the Civil Procedure Rules applicable to England and Wales, equivalent measures will none the less be introduced by our equivalents in the devolved Administrations in Northern Ireland and Scotland. Communication has been made with the relevant rules bodies in those jurisdictions.
Further questions posed by noble Lords related to the matter of volume. Again, if we can be permitted extrapolation from the TPIM experience, it is anticipated that the volume of these measures will be low and used only as a last resort. As I said on an earlier point, the courts will be able to review all closed material and will have the opportunity to challenge the imposition of an order before it is made. Furthermore, through the automatic review, the court could quash the order or remove specific measures. As I said, it has done so in the context of TPIMs.
In terms of transparency, there will be independent oversight by the independent reviewer of state threat legislation, Jonathan Hall KC, who has accepted that post. He will publish an annual report on the use of these powers.
The noble Lord, Lord Ponsonby of Shulbrede, posed the philosophical question, given the necessary degree of confidentiality that will attach to these measures, about how the Government can be satisfied that the measures are working properly, and that the provisions intended to protect the interests of individuals made subject to these measures, notwithstanding the fact that they will not be placed before those persons or their instructed legal representatives, are effective. I can rely with confidence on the integrity of the legal profession in the jurisdictions of this kingdom and the independence that it has always shown, on the independence of our judiciary, and on the special advocate procedure itself, which confers these responsibilities on counsel. They are usually members of the Bar, but this would potentially be open to those with extended rights of audience as solicitor advocates, with the training and vetting they would receive before appointment.
I can take from the submissions heard by the Committee that it is persuaded that the statutory instrument is necessary for the effective operation of STPIMs, slotting in, as it does, into the Civil Procedure Rules and simply adding provisions referring to the governing Act.