“Closed Material Procedure” Provisions in Justice and Security Act 2013: Statutory Review

Robert Buckland Excerpts

Thursday 25th February 2021 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Robert Buckland)]

I am today announcing the establishment of the statutory review of the “closed material procedure” (CMP) provisions in the Justice and Security Act 2013.

The use of CMP is set out in sections 6 to 11 of the Act, about the disclosure of sensitive material in civil proceedings. In particular, section 6 of the Act empowers senior courts, the Supreme Court, the Court of Appeal and the High Court, including in Northern Ireland, and the Court of Session in Scotland, to make a declaration that the case is one in which a closed material application may be made in relation to specific pieces of material, the disclosure of which would be damaging to national security. An application for the declaration may be made by either the defendant or the claimant and a court can also make a CMP declaration of its own motion. Information on the use of CMP under the Act is already publicly available and can be found at https://www.gov.uk/government/collections/use-of-closed-material-procedure-reports

Section 13 of the Act contains a requirement to review the use of CMP under the Act, as soon as reasonably practicable, after five years from when the relevant section of the Act came into force. The review must therefore cover the period from 25 June 2013 to 24 June 2018.

These are the terms of the reference for the review, broadly mirroring the requirements set out in the Act and its explanatory notes:

“1. In accordance with s. 13(1) and (2) of the Justice and Security Act 2013, to review the operation of the following sections of the Act covering the period from 25 June 2013 to 24 June 2018:

Section 6 (declaration permitting closed material applications in proceedings)

Section 7 (review and revocation of declaration under section 6)

Section 8 (determination by court of applications in section 6 proceedings)

Section 9 (appointment of special advocate)

Section 10 (saving for normal disclosure rules)

Section 11 (general provision about section 6 proceedings)

2. In relation to the above, to review the operation of section 17(3)(e) (disclosure proceedings) of the Act, and of those procedure rules relevant to sections 6-11 of the Act.

3. To report to the Secretary of State for Justice.

In accordance with s. 13(5) and (6) of the Act, the Secretary of State must lay a copy of the reviewer’s report before Parliament. Before doing so, the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.”

I am pleased to confirm that Sir Duncan Ouseley, retired High Court Judge, has accepted to conduct the review. He has been selected on the basis of his extensive judicial experience, including on national security cases, which will be an asset to complete the review promptly and effectively.

Sir Duncan Ouseley was called to the Bar (G) in 1973, took Silk in 1992, (Nl) in 1997 and was elected a Bencher in 2000. He was appointed a Recorder in 1994, a Judge of the High Court (Queen’s Bench) in 2000 and Chairman of the Special Immigration Appeal Commission from 2003 to 2006. He was appointed President of the Immigration Appeal Tribunal from 2003 to 2005 and Lead Judge, Administrative Court from 2010 to 2015. The Honourable Sir Duncan Brian Walter Ouseley retired from the High Court (Queen’s Bench) with effect from 17 May 2019.

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