Civil Procedure (Amendment No. 5) Rules 2013

Lord Beecham Excerpts

Monday 29th July 2013 Lords Chamber

Moved by

[Lord Beecham]

At end to insert “but that this House regrets that the rules do not reflect the significance of the introduction of closed material procedures to civil proceedings or the concerns expressed by Special Advocates”.

[Lord Beecham]

My Lords, in moving the amendment in my name, I begin by thanking the noble and learned Lord, as I am sure other noble Lords would wish to do, for his thorough and comprehensive introduction of the rules—without so much as a pause for breath in the 12 minutes or so that he addressed the House. It was, as ever, a compelling performance.

The controversial proposal to extend closed material procedures from the limited category of cases where they previously existed into the area of civil law claims involving the Government evoked much anxious debate in and well beyond this House. Today is not the occasion to revive that debate but rather to consider the nature and effect of the rules of court designed to implement Parliament’s decision, enshrined in the Act which received Royal Assent on 25 April. Notwithstanding the noble and learned Lord’s closing remarks, it must be said that the process itself might be described as something of a closed and rushed parliamentary procedure, since the rules were tabled on 26 June after what appears to have been a minimal consultation period of a mere 10 working days after draft rules were placed in the Libraries of both Houses, and that without any prior announcement.

Given the long gestation period of the legislation, it is surprising that more time was not made available to consult on rules which, on any view, reflect a substantial departure from the principles of our jurisprudence, as does the Act. In particular, they appear to qualify the overriding principle, set out in Civil Procedure Rule 1, that the courts will deal with cases justly and at proportionate cost. Did the Government think to consult, for example, the Joint Committee on Human Rights, the Constitution Committee of this House or the Justice Select Committee, all of which expressed significant views on the legislation in the course of its parliamentary journey? Who else was consulted and with what response? The noble and learned Lord referred to the Delegated Legislation Committee and so on. Were other bodies consulted? Did any body in fact respond in this rather quick consultation period?

As ever, the Government have been quick to find justification for their haste. There are, we are told, some 20 civil cases and some applications for judicial review waiting in the wings—one of which, we understand, has now been initiated. Are these the cases that we heard about between the publication of the Government’s Green Paper and the subsequent passage of the Bill, complete with dire warnings about the likelihood of having to pay millions of pounds, which might find their way into the hands of unidentified terrorists? If so, can it really be the case that a few weeks longer to consider the rules would have made much difference? If not, a fortiori, there would surely have been even less of a problem.

Before I return to the important issue of the effect of the rules as drafted on the principles enshrined in the Act, governing the basis on which the courts have to determine whether to grant an application of closed material procedures, it is necessary to consider some other important issues. The Ministry of Justice effectively appears to have transposed to this new arena of civil law cases the procedures applying in the very different world of special immigration appeal courts. In so doing, as Justice and the Law Society have pointed out, they have paid no regard to the way in which ordinary civil claims are conducted. How, for example, could the so-called Part 36 procedure work, under which an offer to settle can be made by a party, with adverse financial consequences for the other party if the offer is refused and not subsequently beaten at trial? Should this procedure be available where closed material procedures apply, when by definition the adverse party cannot properly assess the strength of the other’s case? If so and it could apply, what modification could be made to it?

A number of other issues have been raised. For example, Rule 82.7 requires notice of hearings to be served on the parties and the special advocate. There was considerable support in debate in your Lordships’ House for the media to be informed of the intention to use CMPs. Will the Government consider a further amendment to the rules to this effect, or will they provide an extra parliamentary process to secure that possibility?

Paragraph (3) of Rule 82.12 permits the court to receive evidence not otherwise admissible. Section 6(4)(b)(iii) of the Act provides that intercept evidence will become admissible. What other categories of inadmissible evidence does the noble and learned Lord envisage will be permitted under this rule or, conversely, what will continue to be excluded under this rule? Paragraph (7) of Rule 82.14 allows but does not require a summary of material not disclosed under CMP to be provided to a party, even where national security material is not included. Again, will the noble and learned Lord look at this, especially where national security material will not be involved? The rule may follow the wording of the Act, but it is open to the Government to indicate that they would not rely on a merely permissive obligation.

Of perhaps greater moment, there is the complete failure to address in these rules the concerns expressed by the special advocates during the deliberations over the legislation. The Justice brief, to which the noble and learned Lord alluded, cites nine major concerns. I will cite just two of them: the lack of any formal rules of evidence and the lack of a searchable database of closed judgments. If the noble and learned Lord has not seen the list, will he undertake to look into the matters raised and respond by way of letter? It is true that the special advocates chose not to revive those concerns, in the context of this limited period for consultation, but they are on the record. In my submission, they should have been dealt with in the course of preparing the rules which we are debating today.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, first, I thank all noble Lords who have contributed to this debate. As my noble friend Lord Phillips said just now, we are dealing with very sensitive issues, which, in the debates on the Bill during its passage, received considerable attention, not least because of the very fundamental issues of the administration of justice to which they give rise. I think my noble friend Lord Marks of Henley-on-Thames was fair in saying that these rules that we now have are a fair and proper reflection of the architecture and detail of the statute that was passed by Parliament. The fact that it is in the form it is owes in many respects a lot to the work of your Lordships’ House, which the Government had no alternative but to pay heed to after the amendments were passed. The legislation that is in place is the better for that.

A number of important issues were raised. I will try to respond to them but I am conscious that, as the noble Lord, Lord Beecham, said, I spoke without pausing to draw breath. He made a number of important points which I hope I will be able to capture. If I do not cover everything, I will certainly write to him and circulate it to all noble Lords who took part in the debate. I will also address the point he made about the various points in the Justice briefing, although he identified only one or two of those.

Not only was the statutory consultation followed with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland, but we sought also to allow an opportunity for your Lordships who had comments to feed those in, and for Members of the other place to do the same. I simply do not know whether the Northern Ireland Human Rights Commission was engaged in this, or whether the Lord Chief Justice of Northern Ireland consulted. Certainly, he was under no legal duty under the Act to do so. I can also say that the rules were being prepared as the Bill was going through and had to be very substantially changed in the light of the amendments that were passed. That was probably why they were not available at an earlier stage. Notwithstanding that, there was an opportunity for consultation, and, as my noble friend said, the rules we have are a proper reflection of what is in the Act.

Specifically, the Joint Committee on Human Rights and the Constitution Committee were not consulted. At this stage, when we are dealing with rules, the appropriate bodies of Parliament are the Joint Committee on Statutory Instruments and your Lordships’ Secondary Legislation Scrutiny Committee. Those are the appropriate committees to consider the court rules and, as I said, neither of them wished to draw any particular matter to the attention of the House.

In regard to the important point raised by the noble Lord in respect of Part 36 of the rules, Rule 36.14 provides for costs consequences for a claimant who fails to beat the defendant’s offer,

“unless it considers it unjust to do so”.

Therefore the court will, as set out in Rule 36.14(4), take into account all the circumstances of the case, including information available to the parties, and it is expected that the court will be very alert to any issues that might make it unjust to follow the normal rule where a CMP is involved.

It is also important to say that these rules are not set in stone. While the initial set of rules had to be submitted to Parliament for approval as a requirement of the Act in respect of Northern Ireland and England and Wales, any amendment to the rules will proceed by the normal course of amendment to Civil Procedure Rules. If, at a future date, there were to be a change in the rules as a result of representations, that might well be something that could be included in the annual report to which the noble and learned Lord, Lord Goldsmith, referred.

The noble Lord, Lord Beecham, asked about further amendment; as I said, there is a procedure for that to happen. He asked what other forms of otherwise inadmissible evidence there might be. I recall that we went over this during some of our debates. He will find that the answer is in Section 6(4)(b), which says that,

“a party to the proceedings would be required to make such a disclosure were it not for one or more of the following”.

It may well be that if, for example, there had been,

“the possibility of a claim for public interest immunity in relation to the material”,

which could otherwise have excluded the material from closed material proceedings, that, of course, would not happen as a result of this. Therefore, that is another example, in addition to the obvious one he gave in terms of intercept material.

The noble Lord also asked about the database of closed judgments. The Government have sought to improve the database of closed judgments that is available to special advocates, and that work has been ongoing. I will come in a moment to the other important issues about judgments, which the noble Lord, Lord Pannick, mentioned. Of course, the judge’s discretion is there throughout. Whenever the disclosure has happened under Section 8, the judge is then required under Section 7 to look again to see whether it is still in the interests of the fair and effective administration of justice in these proceedings for the initial declaration for closed material proceedings to continue. Almost every step along the way, the interests of fair and effective administration of justice are brought into play.

The noble Lord, Lord Pannick, referred to the recent judgment of the Supreme Court in the Bank Mellat case. What he said in many respects reflected what was said many times during the debate, not least by me. It was there from the very first Green Paper that the intention of the Government is that closed material proceedings should be used in just a very small number of cases. At the time when the Bill came before your Lordships’ House, in the 12 months from October 2011 to October 2012, the figure of 20 was talked about. I do not have an up-to-date figure, but I understand that it has not changed much. Some cases may settle and new cases come in, but that is roughly the order of the cases. It is certainly our view that these cases should arise only where we believe it is strictly necessary. I do not believe that there is anything in the rules that is contrary to the principles identified by the noble and learned Lord, Lord Neuberger, as President of the Supreme Court. I have no doubt, too, that in considering applications for closed material proceedings, these will be drawn to the attention of whichever judge is dealing with it. I am sure that the special advocates involved will be very astute and keen to do so.

However, the important point is that these will be matters for the judiciary, and the judiciary has indicated in that case at the highest level that the threshold is quite a high one. I have no doubt that in the months and years ahead there will be litigation on provisions of this legislation when there will be an opportunity for judges to indicate—with specific reference to this legislation—how it should be interpreted. However, as I indicated, I do not believe there is anything in the rules which run contrary to the principles that have been identified.

The noble and learned Lord, Lord Goldsmith, asked me about what might be in the review as opposed to just numbers. I will give him an indication. For example, if there were a change to the rules of the court—which would not come before your Lordships, it would come before Parliament—that might be reported. In terms of development there would be an indication from the Secretary of State as to how he sees this law working out in practice. Maybe not in the first year, but after one or two years when there is some experience of how it works. I certainly would not see anything wrong in having a bit of a narrative, which can perhaps be expanded, as is possible consistent with the information and national security. The noble and learned Lord, Lord Goldsmith, also asked me whether the Attorney-General was consulted with regard to the Bank Mellat case. I simply do not know and cannot remember being told. He and I know that there is some delicacy as to what you say the Law Officers have been asked; but his comments about the involvement of the Law Officer comes from a distinguished former Attorney-General, and therefore I will certainly ensure that his comments on this are drawn not only to the attention of my right honourable friend the Attorney-General but generally to those who are going to be involved in these cases.

The further point, which the noble Lord, Lord Bew, made, was with regard to special advocates. I have no detailed knowledge of this, but I have no reason to think that the vetting is any less now. Of course, special advocates in Northern Ireland are appointed by the Advocate-General for Northern Ireland, who is of course one and the same person as the Attorney-General for England and Wales, a position which the noble and learned Lord, Lord Goldsmith, has previously held. Therefore, I think he can be assured that the scrutiny that is applied is done to the highest level. I hope that he has that reassurance.

The noble Lord, Lord Beecham, raised a number of points, and I hope that I have covered most of those raised in this debate. I believe that what we have here are rules that fairly and faithfully reflect the diligence of both Houses of Parliament in putting together a piece of legislation which we all recognise is hugely sensitive. In those circumstances, I commend them to the House.

[Lord Beecham]

My Lords, I am very grateful to the noble and learned Lord and I look forward to hearing further from him on some of the outstanding matters. He may well be right about Part 36 offers—well, of course, he must be right—and that the possible problem that might have existed in relation to costs of a Part 36 application is covered by Rule 36.14, as he says. But of course, that does not leave the party in any better position to assess whether to accept a Part 36 offer. There may not be a cost implication, but he is not in any position to assess the strength or otherwise of a Part 36 offer, which rather distinguishes it from the general case.

I am very grateful to noble Lords who have contributed to the debate, especially to the noble Lords, Lord Pannick and Lord Bew, to the noble and learned Lord, Lord Goldsmith, and to the noble Lord, Lord Phillips, who broadly expressed support for the Motion. The noble Lord, Lord Marks, affects not to understand the reason or terms of the amendment. It is really fairly straightforward, I would have thought. The thrust of the argument that I sought to make, in which I was in various ways supported, is that we are seeing the transposition of a set of rules applicable to immigration cases under SIAC to ordinary civil procedure, as I said in opening the debate. That is the thrust of the first part of the amendment.

The second part of the amendment refers to the points made by the special advocates, to which the noble Lord, Lord Marks, chose not to direct his mind at all. I cited a couple of their concerns, but there were others—and I shall quote them, as we are not holding up a debate on the Care Bill by so doing. For example, among the points that they make, they talked about the,

“inability effectively to challenge non-disclosure … The lack of any practical ability to call evidence … The lack of any formal rules of evidence, so allowing second or third hand hearsay to be admitted, or even more remote evidence; frequently with the primary source unattributed and unidentifiable, and invariably unavailable for their evidence to be tested, even in closed proceedings … A systemic problem with prejudicially late disclosure by the Government … the Government's approach of refusing to make such disclosure as is recognised would require to be given until being put to its election, and the practice of iterative disclosure … The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them … on the basis of the Government’s unilateral view of relevance”.

These were all matters that were raised, and none of them appears to have been dealt with—

[Lord Marks of Henley-on-Thames]

Does the noble Lord accept the point that I was making, that the special advocates’ objections went to the legislation and were considered by Parliament during the passage of the legislation? The special advocates have not objected to these rules as implementing the legislation. If that is right, that is the query that I raise about the point of this regret Motion, which is directed to the rules in particular.

[Lord Beecham]

But the points that the special advocates have raised go to the process, which is the subject of these rules. The points that I have made could and should have been taken into account in the drafting of the rules to implement this procedure other than simply on the basis of applying to these circumstances of civil claims the rules that apply in entirely different and non-analogous circumstances of special immigration appeals.