Civil Procedure (Amendment No. 2) Rules 2009

My Lords, I hope that it is agreeable to the House that with this we debate the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) 2008. Both sets of rules were laid before Parliament on 3 December last. The Counter-Terrorism Act 2008 provides for financial restrictions proceedings, which are proceedings on an application to set aside a financial restrictions decision or on any matter arising from such an application. The Civil Procedure (Amendment No. 2) Rules 2008 insert a new Part 79 into the Civil Procedure Rules 1998 and set out the procedure for such applications to the High Court of England and Wales and any appeal to the Court of Appeal. The Rules of the Supreme Court (Northern Ireland)(Amendment No.3) 2008 inserts new Order 116B into the Rules of the Supreme Court of Northern Ireland 1980 and makes corresponding provisions. I shall say a word about the legislative context. Both sets of rules were made by the Lord Chancellor in exercise of powers under Section 72 of the Act on 2 December 2008, shortly after it received Royal Assent. The Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland were consulted on the rules which will apply in their respective jurisdictions and were both content. The rules came into force on 4 December 2008, but will cease to continue to have effect unless they are approved by both Houses of Parliament. For England and Wales, amendments to the Civil Procedure Rules 1998 are usually made by the Civil Procedure Rule Committee, which is the body with statutory responsibility for making the relevant rules of court. In Northern Ireland, amendments to the Rules of the Supreme Court (Northern Ireland) 1980 are usually made by the Supreme Court Rules Committee of Northern Ireland, which is the body with statutory responsibility for making the Northern Ireland rules. In order that the rules can be made as soon as possible on Royal Assent of the Bill, Part 6 of the Counter-Terrorism Act 2008 authorises the Lord Chancellor to make rules of court in the first instance after the Act is passed, subject to consulting the appropriate Lord Chief Justice, which he has done. Any subsequent rules or amendments made by either the Civil Procedure Rule Committee or the Supreme Court Rules Committee of Northern Ireland will be subject to the normal rule-making requirements, including the parliamentary negative procedure. Prior to these rules being made, there was no specific provision in either the Civil Procedure Rules 1998 or the Rules of the Supreme Court (Northern Ireland) 1980 to deal with financial restrictions proceedings. Rules are required, however, as it is expected that although financial restrictions decisions can be based on open or closed material, subsequent court proceedings will regularly involve the use of closed material and special advocates, and the Act sets out what the rules of court must or may provide. This includes making rules of court to govern the use of closed material and the use of special advocates. Closed material has been used as evidence in asset-freezing decisions since 2006, when the Treasury announced its intention to do so where there are strong operational reasons to impose an asset freeze but there is insufficient open evidence. However, any reliance on that closed material in any subsequent court proceedings on such decisions has until now been dependent on the court being willing to exercise its inherent jurisdiction to order a closed hearing and to order the appointment of a special advocate. The question of whether and when the court should exercise its jurisdiction in this was one of the points at issue in the case of A, K, M, Q & G v HM Treasury, which was considered by the Court of Appeal last year. The use of special advocates was developed as a means of mitigating disadvantage to a party who has been excluded from a hearing or from whom information relevant to his or her case is withheld on the ground that such disclosure would be contrary to the public interest. However, the need for a special advocate would arise only if the court could be persuaded that it should consider certain evidence at a closed hearing at which one of the parties and their legal representatives would not be present. The special advocate would represent that party’s interests. However, since the Treasury’s decision in 2006 to rely on closed material in asset-freezing decisions, it became apparent that many if not most subsequent court proceedings on asset-freezing decisions would involve consideration of closed material, without which the Treasury could not defend its decisions fully. It was therefore felt that it was appropriate to provide for this by way of legislation, and by consequent rules of court, rather than relying on the court’s willingness to exercise its inherent jurisdiction in each case. It was felt that this would bring it into line with other areas where closed evidence is often central to proceedings. Similar considerations apply in the case of decisions taken under Part 2 of the Anti-terrorism, Crime and Security Act 2001. The new powers introduced in Schedule 7 to the Counter-Terrorism Act 2008 may also involve decisions being taken that are based on closed material. For the Treasury to be able to defend such decisions fully, the court would need to consider closed material. Accordingly, it was felt that challenges to decisions taken under these powers should also be made subject to the new procedures. Special advocates are appointed by the Attorney-General. The fundamental feature of all special advocate systems is that, once the special advocate has received closed material, all direct communication between the special advocate and the party whose interest that advocate is representing and their legal representatives must cease, unless the court has given its consent. In relation to other proceedings, the Government have established very similar statutory procedures involving closed material and the use of special advocates. These include proceedings before the Special Immigration Appeals Commission—SIAC—and control order proceedings in the High Court. The new amendments to the Civil Procedure Rules and the Rules of the Supreme Court of Northern Ireland are based on the general principle that, subject to the new rules on financial restrictions proceedings, the other provisions of the Civil Procedure Rules and the Rules of the Supreme Court of Northern Ireland should apply to these proceedings and any subsequent appeals, subject to any necessary modifications. Such modifications and disapplication of parts of the Civil Procedure Rules and the Rules of the Supreme Court of Northern Ireland have been minimised as far as possible. The overriding objective in Part 1 of the Civil Procedure Rules and Order 1 of the Rules of the Supreme Court of Northern Ireland, which requires the court to deal with cases justly, is to be read as including a requirement that the court in financial restriction proceedings will ensure that information is not disclosed contrary to the public interest. A similar modification to the overriding objective already exists in relation to control order proceedings. Some general rules about evidence and disclosure are also disapplied in favour of the rules dealing with financial restrictions proceedings. There is nothing in these rules that has not already been debated and approved by both Houses. I have outlined the substantive provisions of these statutory instruments and I beg to move.