(This note is not part of these Rules)
These Rules amend the Rules of the Court of Judicature (Northern Ireland) 1980 (“the principal Rules”) for the purpose of implementing Part 2 of the Justice and Security Act 2013 (2013 c.18) (“the 2013 Act”) by—
amending Order 1, rule 1A (application by the Court of the overriding objective), so that it is subject to rule 2 of Order 126 (modification to the overriding objective);
amending Orders 13, 14 and 19 to ensure that judgment in default is not entered where the reason for a statement of claim or a defence not having been served is that the process of considering whether a declaration under section 6 of the 2013 Act should be applied for or made is still under way;
amending Order 78 to provide for transfer to the High Court of proceedings in the county court in which sensitive material is in issue; and
inserting a new Order 126 containing rules about proceedings in which sensitive material is in issue and it is necessary to ensure that such material is not disclosed where such disclosure would be damaging to the interests of national security (including the modification of the application of other Orders in the principal Rules for the purposes of those proceedings).
The 2013 Act makes provision, in Part II, to allow the use in civil proceedings of “closed material procedure” for the admission and hearing of, and argument in relation to, national security-sensitive material. In such a procedure, the sensitive material is withheld from the other party and is disclosed only to the Court and to a special advocate appointed to represent that other party’s interests. Part II of the Act provides for a process in which, if it appears that a party to proceedings may be required in the course of the proceedings to disclose sensitive material, the Court may make a declaration that the proceedings are proceedings in which a “closed material application” may be made to the Court. A closed material application is an application for permission to disclose sensitive material only to the Court and special advocate. The initial declaration acts as a gateway to enable closed material procedure to be used where necessary thereafter in the proceedings, but with those parts of the proceedings where sensitive material is not in issue being undertaken in “open” procedure in the normal way.
Part I of Order 126 contains rules about the scope, interpretation and application of the Order. Rule 2 modifies the overriding objective for the purposes of Order 126 by placing a duty on the Court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty. This, and the rest of Order 126, is, however, subject to section 14(2) of the 2013 Act, which provides that nothing in the relevant sections of the 2013 Act or in rules made by virtue of them is to be read as requiring the Court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.
Part II of Order 126 contains general provisions applying to all proceedings to which Order 126 applies. These include provision for—
hearings, including the circumstances in which the Court is to conduct “closed” hearings (rules 5 to 7);
notifying the Advocate General of proceedings, the appointment and functions of a special advocate and the special advocate’s communications with others (rules 8 to 10);
modification of rules of evidence (rule 11);
the procedure for closed material applications and objections to proposed communications by the special advocate with the specially represented party (rules 12 to 14);
the Court to withhold (so that they are given only to the Secretary of State (or, if the person who has to disclose sensitive material is not the Secretary of State, that other “relevant person”) and special advocate, but not to the specially represented party) any, or any part, of its reasons when giving judgment, if it is not possible to give reasons without disclosing information in a way which would be damaging to the interests of national security (rule 15);
applications by the Secretary of State for the Court to reconsider the terms of any order or decision given in the Secretary of State’s absence, or the terms of any judgment, to prevent the disclosure of information in a way which would be damaging to the interests of national security (rule 16).
Part III of Order 126 contains rules about the making and consideration of an application for a declaration that the proceedings are proceedings in which a “closed material application” may be made to the Court, including provision to ensure that the Secretary of State, where not a party to the proceedings, is always notified of the possibility that such an application may be made because sensitive material is in issue, and that the Secretary of State is joined as a party (where not already a party) when a declaration is made.
Part IV of Order 126 contains rules about the review and revocation of declarations that proceedings are proceedings in which a closed material application may be made to the Court. Such review and revocation may be of the Court’s own motion, or on application, and a formal review must take place once the pre-trial disclosure exercise in the proceedings (defined in rule 29) has concluded.
Part V of Order 126 contains a rule about the making and consideration of an application (under section 18 of the 2013 Act) to have set aside a certificate under section 17(3)(e) of the Act (that is, a certificate by the Secretary of State in relation to proceedings seeking disclosure of information in proceedings under the Court’s Norwich Pharmacal jurisdiction or any similar jurisdiction, that certain information is sensitive information which should not be ordered to be disclose).
Part VI of Order 126 contains a rule modifying the application of Order 59 of the principal rules in relation to appeals to the Court of Appeal against an order on or in relation to an application under section 6, 7 or 18 of the Act, or in “section 6 proceedings” (proceedings where there has been a declaration that the proceedings are proceedings in which a closed material application may be made to the Court, or proceedings treated as such proceedings by any enactment), or where the appeal proceedings involve such a matter or are themselves section 6 proceedings.