Civil Procedure (Amendment No. 5) Rules 2013

Lord Marks of Henley-on-Thames Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I fully respect the concern of the noble Lord, Lord Beecham, to scrutinise these rules, and I share his view that they are of considerable importance. However, while of course we all accept that these rules ought to be debated, I find this regret Motion and its terms somewhat puzzling.

Along with many others on these Benches, I spoke and voted during the passage of the Justice and Security Bill for amendments that implemented recommendations of the Joint Committee on Human Rights, many in the name of the noble Lord, Lord Pannick, and others. However, I also ultimately accepted that with the safeguards we secured, it was better to enable those few cases which otherwise could not be heard at all, because open hearings would jeopardise national security, to be determined using CMPs. Since then, as the noble Lord, Lord Pannick, has pointed out and the noble and learned Lord, Lord Goldsmith, has amplified, we have had the Bank Mellat case with the trenchant criticisms by the Supreme Court that the application was made. However, those criticisms were applicable to the particular circumstances of that case. It is important and significant that the case nevertheless gave the Supreme Court the opportunity to spell out the principles that ought to be applied when the courts are considering closed material proceedings. I join the noble and learned Lord, Lord Goldsmith, in welcoming those principles, and with the noble Lord, Lord Pannick, in seeking clarification that they still apply. For my part, it seems that they can and do apply under these rules. It was interesting to note that the first Section 6 declaration application has been a claimant’s application, thus vindicating in a startling way our important “equality of arms” amendment.

The reason I find the noble Lord’s regret Motion puzzling is that the rules as drafted contain nothing that we would not expect and omit nothing that we would expect, given the Act we passed and the safeguards we built in. I will briefly give one or two examples. The central point of Part 2 of the Act is to permit CMPs to enable security-sensitive material to be used in litigation without compromising national security. The rules provide for a modification of the overriding objective, as has been pointed out, to ensure that information,

“is not disclosed in a way which would be damaging to the interests of national security”.

The court must still deal with cases justly and in accordance with the overriding objective. I suggest that the modification is the minimum necessary to bring the overriding objective in line with the decision of Parliament to enact the legislation. Furthermore, the court is still specifically bound, as the Minister pointed out, by Section 14(2) of the Act to give effect to the fair trial requirements of Article 6.

Earlier today, Liberty circulated a briefing which suggested that the amendment of the overriding objective is,

“an attempt to undo the modest amendments made to section 6 of the Act as it passed through Parliament. Namely Parliament’s insistence that before an application for CMP can be granted, a court must be satisfied that ‘it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration’”.

That is simply wrong and I regret that I must disagree with the noble Lord, Lord Beecham. The rules are subordinate. They must be read subject to the statutory second condition which he quoted, that it must be,

“in the interests of the fair and effective administration of justice in the proceedings for a declaration to be made”.

That is a precondition.

Section 7 of the Act requires the court to keep any CMP declaration under Section 6 under review and permits the court to revoke it at any time, and requires it to do so following pre-trial disclosure if it no longer considers the fair and effective administration of justice test to be met. That is a very important safeguard which, as my noble and learned friend pointed out, was achieved in this House. The rules in Section 4 provide the mechanisms for those reviews and implement the safeguard fully and accurately.

Finally, the rules provide a comprehensive code for the involvement of special advocates. They give the court judicial control at every stage to ensure that a specially represented party’s interests are compromised as little as is consistent with national security. This was one of the cardinal demands of those of us who believed that it should be for the court to determine when CMPs should be permitted and how they should be regulated. In particular, a special advocate will be able to apply to the court for directions under Rule 82.11, enabling him to communicate with the specially represented party so far as national security allows.

It is a matter of record that the special advocates opposed this legislation. They did so understandably, because CMPs are contrary to the principles of open justice that lie at the heart of our common law system, in which we hear and test evidence made available to all parties in open court. No one disputed then or disputes now that CMPs represent a derogation from those principles. No one, I suggest, underestimated the significance of the decision we took. In passing the Act, Parliament acted on the basis that it was better for the few cases to which it applied to be determined with CMPs than for them never to be determined at all, which was the alternative.

My central point is that these draft rules do no more than fairly and comprehensively implement the will of Parliament. The special advocates have had an opportunity to comment on the draft rules since 3 June, but they have not done so. For those reasons, I cannot see that the noble Lord’s regret Motion is fair or justified, and I therefore oppose it.

[Lord Bew]

My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.

The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.

My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.

--- Later in debate ---

[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.