Civil Procedure (Amendment No. 5) Rules 2013

Lord Goldsmith Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Goldsmith]

My Lords, my noble friend Lord Beecham has done the House a service by ensuring that we debate openly some of the issues around this procedure and these rules, and he has done so in a very effective and trenchant way. The noble Lord, Lord Pannick, has raised some important questions. I will not repeat them, but I look forward to hearing what the noble and learned Lord has to say in response. In the light of the way that he has presented those arguments and referred to the Bank Mellat case, I can be relatively short in my remarks, but I have two questions that I want to put.

I thank the Minister for the clarity with which he explained the safeguards that are in place and the emphasis he put on the requirements for the interests of justice still to be served notwithstanding these procedures. That is important because, given the rather stark way in which Rule 82.2 reads:

“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”,

some could mistakenly reach the view that that has become the overriding objective in this category of case. The noble and learned Lord, in remarks that will be carefully looked at—indeed mined by advocates, special advocates and, I hope, judges—has underlined that notwithstanding that statement, there are clear indications that the interests of justice remain paramount. He referred to the duty or requirements under Section 6 of the Human Rights Act, under Section 6(5) of the 2013 Act itself, and the fact that the first paragraph of the overriding objectives will continue to apply. Overall, what that indicates, if I understood correctly what the noble and learned Lord said—I hope that he can confirm this—is that, in the Government’s view, judges will still need to be guided by the requirement to ensure that cases are dealt with justly in the interests of the litigants.

Having said that, I was one of those who was unhappy about this procedure. I had had experience of closed material procedures when I was in office and I had spent time talking to special advocates. In the end, the House and Parliament were persuaded that the requirements were such that it was necessary to have such a procedure for a limited number of cases. I agree with the noble Lord, Lord Pannick, that this is not the occasion to go back over that question.

I have two questions, apart from those that have been raised by other noble Lords. First, going back to one of the safeguards which was required by the Act, the requirement for a report which now is to be found in Section 12 of the 2013 Act, will the noble and learned Lord please consider with his colleagues what it is that the report is going to contain? We know that by statute it has to contain numerical details of applications and judgments, but what else is it going to contain? One of the difficulties with these procedures is that because aspects of them will not take place in open court, we will not know what the issues are that have been given rise to by such proceedings. The Secretary of State has the power under Section 12(3) of the Act,

“to include in the report such other matters as he may consider appropriate”.

I hope, therefore, that the noble and learned Lord and his colleagues will consider whether matters that are considered “appropriate” would be the sort of thing that show how well the Act is working and whether it is giving rise to the problems that my noble friend Lord Beecham referred to, such as applications under Part 36 and so forth. I hope he can tell us that there will be a real attempt not to limit the reports made under the Act to mere numbers of matters dealt with and declarations made.

The second issue I want to raise derives from the Bank Mellat case. It is very troubling that the Supreme Court felt it necessary to say what it said. I do not know to what extent the Attorney-General was involved in the decision to make the application for a closed material procedure, but it would be a very useful safeguard to ensure that, at least at a certain level, whenever applications are to be made for a closed material procedure, the Attorney-General is involved. That will avoid the situation where counsel who is instructed by his client, which is the way the relationship otherwise works, simply has to accept the view of the officials who are instructing him that the particular matter gives rise to national security issues. It is very easy to say and it is very easy to say it quite convincingly, but it is important that there should be really independent scrutiny of whether it is justified. There will not necessarily be cases where a Supreme Court is in a position to look at it and say as trenchantly as the Supreme Court did in the Bank Mellat case that the application was not justified. I look forward to hearing what the Minister can say about the question of the involvement of the Attorney-General.