Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005

My Lords, the Rules of the Supreme Court (Northern Ireland)(Amendment No. 3) Order 2005 incorporates Order 116A into the Rules of the Supreme Court (Northern Ireland) 1980. The order sets out special procedures for court proceedings under the Prevention of Terrorism Act 2005. This House has already discussed the Civil Procedure (Amendment No. 2) Rules which introduced a new Part 76 into the Civil Procedure Rules. The concerns that we expressed at the time of the debate on those rules apply equally to this order. We are extremely surprised at the delay in bringing the measures forward. The Prevention of Terrorism Act and the special procedures for court proceedings and appeals relating to control orders were made on 14 March 2005. Why has there been a delay of almost seven months before bringing this statutory instrument forward? How has the Act been applied to Northern Ireland in the interim? Then there is the matter of new Rule 2 which deals with the overriding objective. The essence of the overriding objective is that cases should be dealt with justly. That is the cornerstone of our civil procedure rules, and it is crucial to the administration of justice that that should remain the case, despite the temptation to derogate in the fight against terrorism. I understand that the Minister in the other place has had several helpful discussions with my colleagues there; but we remain unconvinced of the need for a new Rule 2 in new Order 116A. It provides that, "““the overriding objective . . . must be read . . . in a way which is compatible””" with the court’s duty to ensure that, "““information is not disclosed contrary to the public interest””." In effect, that gives Rule 3 precedence over the overriding objective. The reasoning behind the overriding objective not being disapplied—that it is merely subject to the court’s duty to ensure that information is not disclosed contrary to the public interest—cannot disguise the fact that the overriding objective is capable of being overridden. Ensuring that information is not disclosed contrary to the public interest can be achieved without making the overriding objective subject to the provisions in new Rule 2(1) in new Order 116A. No doubt many documents relating to other cases are withheld in the interests of national security and so on; but I would have thought it unnecessary to set the dangerous precedent of usurping the overriding objective. We also have concerns about new Rule 24(2)(c) which provides that no hearing would be required for an appeal where the controlled person is not represented and when he or she is, "““outside the United Kingdom or it is impracticable to give him notice of a hearing””." We feel that the exception to the requirement for a hearing is unnecessarily broad. Will the Government clarify the intended use of this provision? Would not an unrepresented person be the person most in need of a hearing? The proceedings will in any case be rather one-sided, with in-camera meetings, secret evidence and special advocates. Would it not be prudent to give the controlled person at the very least the reassurance of a hearing, rather than provide an excuse not to have one because it is impractical? Our last concern is the use of special advocates. New rule 27 lists the functions of special advocates. Will the Minister clarify whether the specific functions that are listed are exhaustive? If so, should the list be widened to permit further scope to represent the subject of the order’s interests as the use of special advocates becomes increasingly refined? Will the Minister tell us about the Government’s progress in reviewing the use of special advocates and striving to find a more acceptable model? We remain concerned that the rules may add further injustices to the existing problems in the Prevention of Terrorism Act 2005 regarding the infringement of civil liberties. We look to the Government to provide us with reassurances that that is not the case.