Part 2: Disclosure of sensitive material
Section 6: Declaration permitting closed material applications in proceedings
67.Section 6 enables certain courts hearing civil (but not criminal) proceedings, namely the High Court, the Court of Appeal, the Court of Session or the Supreme Court, 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.
68.The declaration is an ‘in principle’ decision made by the court about whether or not a closed material procedure (a “CMP”) should be available in the case. It will normally be based on an application made by a party to the proceedings or the Secretary of State. However, a court may also make a declaration of its own motion. An application for a declaration will be supported by some (but not necessarily all) of the relevant sensitive material, and the Act provides (at section 11(4)) that these initial proceedings for a declaration (whether following an application or on the court’s own motion) may themselves be held by way of a CMP, with special advocates appointed to represent the interests of any party excluded from the closed part of the hearings.
69.The court will first need to be satisfied that the Secretary of State has considered making or advising another person to make an application for public interest immunity for the material on which the application for a declaration is based. During the application process for a declaration, the person applying will need to persuade the court that there is relevant material the disclosure of which would damage national security and to put forward arguments as to why a CMP would be in the interests of the fair and effective administration of justice - for example, the degree of relevance of sensitive material to the issues in the case. The court will consider the material provided in support of the application, and whether it meets the condition that it is relevant and its disclosure would damage national security. The sensitive material forming part of the application for a declaration is protected, because, as explained above, these preliminary proceedings may themselves be held in a CMP.
70.Subsection (2)(a) allows for an application for a declaration to be made by the Secretary of State (whether or not a party to the proceedings) or by any party to the proceedings. The application need not relate to material which the applicant themselves would be required to disclosed, and may relate to material required to be disclosed by another party to the proceedings (although this situation is less likely to arise in practice).
71.Subsection (3) provides that if the court considers the two conditions specified in subsections (4) and (5) are met, it may make a declaration that an application can be made in that case for material to be heard in a CMP.
72.Subsection (4) sets out the first condition: that a party to the proceedings would be required to disclose sensitive material in the course of the proceedings (or would be so required but for certain litigation rules, such as the continuing availability of PII). The court must ignore the exclusion of intercept material set out in RIPA, meaning that intercept evidence could be used to support an application for a declaration. It must also ignore any other enactment which would prevent the party from disclosing the material where that enactment would not prevent disclosure if the proceedings were closed.
73.Subsection (5) states that the second condition is that a declaration would be in the interests of the fair and effective administration of justice in the proceedings. The judge would consider this in the circumstances where open disclosure of relevant material would be damaging to the interests of national security. James Brokenshire (Home Office Minister for Crime and Security) indicated in Commons Committee that, “in examining that question [of whether a CMP would be fair and effective], the court will want to focus on what is necessary for resolving the issues in the case before it. In particular, it should focus on the relevance of the sensitive material to the issues in the case”.
74.Subsection (6) sets out that the two conditions are met if the court considers them met in relation to any material that would be required to be disclosed and makes clear that an application for a CMP declaration need not be based on all the material.
75.Subsection (7) sets out that the court, before considering an application from the Secretary of State for a CMP declaration, must be satisfied that the Secretary of State has first considered whether to make, or advise another person to make, a claim for public interest immunity for the material on which the application is based. The court cannot order the Secretary of State to apply for PII, as it is the responsibility of a party in possession of sensitive material to do so. The court’s consideration of the Secretary of State’s consideration of PII is limited to the material on which the application for a CMP declaration is based and does not require the Secretary of State to undertake a full PII exercise.
76.Subsection (8) states that a declaration must identify the party or parties who would be required to disclose sensitive material. Such persons are referred to as “a relevant person” for certain purposes such as an application for a closed material procedure under section 8(1)(a).
77.Subsection (9) allows rules of court to be made to:
provide that any party, or the court itself, must notify the Secretary of State that a CMP may be needed, thereby affording him or her the opportunity to make an application for a declaration or be joined to any proceedings for an application for a declaration (see paragraph (c) below);
allow the proceedings to be stayed while a person considers whether to make an application for a CMP;
enable the Secretary of State to be joined as a party to proceedings for or about a declaration (for example, if the Secretary of State is not already a party to the proceedings for an application for a declaration). Rules made under this paragraph will also enable the Secretary of State to be joined to proceedings in relation to which there is a declaration in place (if he is not already a party to such proceedings). In essence, this would enable the Secretary of State (who has responsibility for national security), to be joined to the main action in appropriate cases, where the disclosure of material in the case would be damaging to national security.
78.Subsection (10) sets out that such rules of court must require a person to give notice to every other person entitled to make an application in relation to the case of his or her intention to make an application for a declaration. The rules must also require the applicant to inform every other such person of the result of the application.
79.Subsection (11) defines “closed material application” as an application of the kind mentioned in section 8(1)(a). It also defines “relevant civil proceedings” to establish the range of civil proceedings in which a declaration under section 6(1) may be made. “Relevant civil proceedings” are defined as proceedings in the High Court, the Court of Appeal, the Court of Session or the Supreme Court which are not criminal proceedings. This subsection also defines “sensitive material” as “material the disclosure of which would be damaging to the interests of national security”.
Section 7: Review and revocation of declaration under section 6
80.This section makes explicit the judge’s power - which can be exercised at any stage - to review, and in appropriate cases revoke, a declaration under section 6 and obliges the court to review its decision to grant a declaration after the pre-trial disclosure exercise.
81.Subsection (2) provides that the court must keep the declaration under review and may revoke it at any time if it considers that a declaration is no longer in the interest of the fair and effective administration of justice in the proceedings.
82.Subsection (3) obliges the court to conduct a formal review at the end of the pre-trial disclosure phase (or the fixing of a hearing to determine the merits of the proceedings in relation to proceedings before the Court of Session) of its decision to grant a declaration. The court must then revoke the declaration if the court considers it is no longer in the interest of the fair and effective administration of justice in the proceedings.
83.Subsection (4) provides that a court may revoke a declaration either of its own motion or following application from the Secretary of State or any party to the proceedings.
84.Subsection (5) provides that when the court is deciding whether a declaration continues to be in the interests of the fair and effective administration of justice in the proceedings, the court must consider all the information put before it in the course of proceedings, and not just the material on which its decision to grant the declaration was based.
85.Subsection (6) states that rules of court must set out at what point the pre-trial disclosure exercise is considered complete for the purposes of the formal review introduced in subsection (3). Rules of court must also set out how such a review should then be conducted.
86.Subsection (7) sets out that the references to a ‘pre-trial disclosure exercise’ relate to a ‘hearing to determine the merits of the proceedings’ when applied to the Court of Session, for the purposes of this section, to take account of the different arrangements in Scotland.
Section 8: Determination by court of applications in section 6 proceedings
87.Section 8 provides a power for rules of court to make provision specific to the second stage of the process, following the granting of a declaration under section 6, and sets out some of the things that must be included in the rules. So, for example, once a declaration has been made, a relevant person must make an application, if they wish for certain pieces or tranches of sensitive material to be heard in a CMP. In this application process, the court will consider whether it agrees with the assessment of the damage to national security that disclosure of the material in question would cause. If it agrees that disclosure would be damaging, the court must give permission for the material to be heard in closed. However, the court must consider whether a non-damaging summary of the material should be provided (in open proceedings) and, notwithstanding this requirement the court must always act in accordance with Article 6 of the European Convention on Human Rights.
88.In the process of applying for a CMP declaration under section 6, the person applying would need to demonstrate that there is relevant material the disclosure of which would damage national security. Therefore proceedings on the application for a declaration process are treated as “section 6 proceedings” (see section 11(4)). This means that a CMP can take place at this stage in order to protect the material (likely to be a subset of material relevant to the case) supporting the application for a declaration. Otherwise the person would not be able to demonstrate the sensitivity and relevance of material to be covered in a CMP for the trial of the issues in the case, because such material could not be disclosed in open court without causing damage to national security.
89.If the judge grants a CMP declaration, he will therefore already have considered, in the course of the initial proceedings on the declaration, whether the material supporting the application meets the test set out in section 8 (i.e. that this material would be damaging to national security if disclosed). It will not be necessary for a further application to be made in the main proceedings in relation to that same material, given that the judge would have already considered whether the material meets the section 8 test.
90.Subsection (1) provides that rules of court must secure certain matters in relation to proceedings in which a declaration is in place (“section 6 proceedings”). These rules must ensure:
that a relevant person (as defined in section 6(8)) is able to apply for permission from the court not to disclose sensitive material other than to the court, a person appointed as a special advocate and, where the Secretary of State is not the relevant person but is a party to the proceedings, the Secretary of State,
that this application is always considered without any other party to the proceedings or their open legal representatives being present,
that the court must give permission for material not to be disclosed if to do so would damage national security,
that if the court does give this permission it must consider requiring the person withholding it to provide a summary of it to other parties to the proceedings and their legal representatives,
that the court is required to ensure that this summary does not damage national security.
91.Subsections (2) and (3) state that rules of court must provide for certain consequences where a relevant person does not receive permission from the court to withhold material but decides not to disclose it, or is required to provide a summary but chooses not to provide this summary. If the court considers that the material in question might undermine the relevant person’s case or assist the case of another party to the proceedings, then the court must be authorised to direct that the relevant person:
does not rely on these points in that person’s case, or
makes any concessions or other steps set out by the court.
Subsection (3)(b) provides that, in any other case (generally where the material is supportive to the person who would be disclosing it) the court must be authorised to ensure that the relevant person does not rely on the material.
Section 9: Appointment of special advocate
92.Section 9 deals with the appointment of a special advocate to represent the interests of an excluded party in closed material proceedings. This person would be a security cleared lawyer. This is in line with procedures adopted in respect of other closed material procedures such as those before the Special Immigration Appeals Commission (SIAC).
93.The section states that special advocates are, depending on the jurisdiction concerned, to be appointed by the Attorney General, the Advocate General for Scotland or the Advocate General for Northern Ireland. The special advocate is not responsible to the person whose interests they represent. A person may only be appointed as a special advocate if they have the qualifications set out at subsection (5).
Section 10: Saving for normal disclosure rules
94.Section 10 states that, subject to sections 8, 9 and 11, rules of court must ensure that the normal rules of disclosure continue to apply to section 6 proceedings.
Section 11: General provision about section 6 proceedings
95.Section 11 sets out the general provisions to be included in the rules of court relating to section 6 proceedings.
96.Subsection (1) states that a person making the rules must have regard to the need to secure that disclosures of information are not made where they would be damaging to national security.
97.Subsection (2) states that rules of court may be made about the mode of proof and evidence in the proceedings; to enable or require proceedings to be determined without a hearing; and about the legal representation in the proceedings. This subsection also provides that the rules of court may restrict the particulars required to be given of reasons for decisions in the proceedings, and may enable a hearing to take place in the absence of any person. It also states that the rules may provide detail about the functions of special advocates, and enable the court to give a party to the proceedings a summary of evidence heard in the CMP. These provisions follow the models adopted in other closed material procedures such as those before SIAC.
98.Subsection (3) states that the references to a person in subsection (2) do not include a relevant person because they will not be excluded from the proceedings during a closed material procedure. Nor do they include the Secretary of State where the Secretary of State is not a relevant person but is a party to the proceedings (because the Secretary of State is not excluded from CMPs – see section 8(1)(a)(iii)).
99.Subsection (4) provides that the initial proceedings on whether a CMP declaration should be granted are to be treated as section 6 proceedings (meaning that sensitive material could be protected by a CMP at this preliminary stage). Similarly, it also provides that all proceedings relating to the revocation of a CMP declaration are treated as section 6 proceedings. This would include the circumstances in which the court has revoked a CMP declaration (following an application or of its own motion) and the Government is appealing this decision. It provides for such appeal proceedings to be treated as section 6 proceedings (and therefore for sensitive material in such proceedings to be protected by a CMP).
100.Subsection (5) defines who a “relevant person” is in relation to certain proceedings treated as section 6 proceedings. This is needed because subsection (8) of section 6 would not apply to these types of proceedings to determine the identity of the relevant person (because in these types of “deemed” section 6 proceedings, no declaration will have been granted under section 6).
Section 12: Reports on the use of closed material procedure
101.Section 12 introduces an obligation on the Secretary of State to lay a report before Parliament on an annual basis on the operation of the CMP provisions. The report would cover certain matters related to proceedings where there is a declaration under section 6 in place, and proceedings treated as section 6 proceedings (including proceedings relating to an application for a declaration or revocation of a declaration and the review of certification under section 17(3)(e)).
102.Subsection (1) provides that the Secretary of State must prepare a report on the factual matters detailed in subsection (2) a year after section 6 comes into force and every year thereafter; and that this report and subsequent reports must be laid before Parliament
103.Subsection (2) lists the matters which must be included in the report. These are:
the number of applications made for a CMP declaration during the reporting period, broken down according to who made the application: the Secretary of State or other persons;
the number of declarations made by the court and the number of revocations of declarations made by the court during the reporting period according to who made the application or identifying where the court has court granted or revoked a declaration of its own motion;
the number of final judgments given in section 6 proceedings (this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration) which are closed judgments; and
the number of final judgments given in section 6 proceedings which are open judgments.
104.Subsection (3) allows for the Secretary of State to include further matters in the report that he considers appropriate in addition to those specified in subsection (2).
105.Subsection (4) sets out that the report should be prepared and laid before Parliament as soon as reasonably practicable after the end of the twelve month period to which it relates.
106.Subsection (5) sets out definitions used in this section. A ‘closed judgment’ refers to one that is not made available of fully available to the public. A ‘final judgment’ in relation to section 6 proceedings refers to a final judgment to determine the proceedings.
Section 13: Review of sections 6 to 11
107.Section 13 obliges a review to be carried out on the operation of the CMP provisions and sets out the framework for the appointment of the reviewer and the production and timing of his report to be laid before Parliament. The scope of the review would cover proceedings whether there is a declaration in place (i.e. where a closed material application may be made), and proceedings ‘treated’ as section 6 proceedings, including the review of certification under section 17(3)(e) and proceedings relating to the declaration or revocation of the declaration.
108.Subsection (1) requires the Secretary of State to appoint a person (referred to as ‘the reviewer’) to review the operation of sections 6 to 11.
109.Subsection (2) requires the reviewer to carry out a review of the operation of closed material procedures covered by sections 6 to 11 during the period of five years beginning once section 6 has come into force.
110.Subsection (3) requires the review to be completed as soon as reasonably practicable after the end of the five year period.
111.Subsection (4) requires the reviewer to send the Secretary of State a report on the outcome of the review as soon as reasonably practicable after completing a review.
112.Subsection (5) requires the Secretary of State to lay a copy of the report before Parliament on receiving a report under subsection (4).
113.Subsection (6) allows the Secretary of State, after consulting the reviewer, to exclude material from the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security (or in relation to CMPs dealing with reviews of certification (see section 18(5)(b)) national security or the international relations of the UK) if it were included in the copy laid before Parliament.
114.Subsection (7) allows for the reviewer to be paid appropriate allowances and reimbursed for the costs of carrying out his duties.
Section 14: Sections 6 to 13: interpretation
115.Section 14 provides for the interpretation of certain expressions used in sections 6 to 13, see subsection (1).
116.Subsection (2) states that nothing in sections 6 to 13 or in any future provision made by virtue of them:
restricts the power to make rules of court or the matters that are usually taken into account when doing so;
affects the common law rules on public interest immunity;
is to be read as requiring a court or tribunal to act inconsistently with Article 6 of the European Convention on Human Rights.
Section 15: Certain exclusion, naturalisation and citizenship decisions
117.Section 15 inserts new sections 2C and 2D into the Special Immigration Appeals Commission Act 1997 to provide for a right of review on judicial review principles by the Special Immigration Appeals Commission (“SIAC”) in respect of the following categories of executive action by the Secretary of State:
A direction regarding the exclusion of a non-EEA national from the United Kingdom which is made by the Secretary of State wholly or partly on the ground that the exclusion of that national from the United Kingdom is conducive to the public good, where (a) there is no right of appeal under Part 5 of the Nationality, Immigration and Asylum Act 2002 and (b) the direction is personally certified by the Secretary of State as one that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public in the interests of national security, the relationship between the United Kingdom and another country or otherwise in the public interest (new section 2C).
A decision to refuse to issue a certificate of naturalisation under section 6 of the British Nationality Act 1981 or a refusal to grant an application of the kind mentioned in section 41A of that Act (such as an application to register an adult or young person as a British citizen) where the decision is certified by the Secretary of State as one that was made wholly or partly in reliance on information which, in the opinion of the Secretary of State, should not be made public in the interests of national security, the relationship between the United Kingdom and another country or otherwise in the public interest (new section 2D).
118.Subsection (2) of both new sections 2C and 2D provides that a person subject to any of the executive actions described above can apply to SIAC for the decision to be set aside. When considering the application, SIAC is to apply the same principles as would be applied in judicial review proceedings and may grant the same relief given in judicial review proceedings.
119.The effect of these provisions is that a closed material procedure is available under the Special Immigration Appeals Commission Act 1997 for the hearings before SIAC, whereas such a procedure would not be available if the decisions continued to be subject to ordinary judicial review.
Section 16: Use of intercept evidence in employment cases involving national security
120.Section 16 provides for an amendment to section 18 of the Regulation of Investigatory Powers Act 2000. Intercept material is generally excluded from legal proceedings under section 17 of that Act, but exceptions apply in limited circumstances by virtue of section 18.
121.The effect of the amendment is to permit the use of intercept evidence in closed material proceedings before an employment tribunal or (in Northern Ireland) an industrial tribunal. It also provides for intercept evidence to be admissible in the context of employment cases in the Fair Employment Tribunal in Northern Ireland where there is an appeal against a certificate issued on national security grounds by the Secretary of State and there are closed proceedings in that appeal.
Section 17: Disclosure proceedings
122.Section 17 prevents the court in certain circumstances from exercising its residual disclosure jurisdiction (the classic example of which is known as the Norwich Pharmacal jurisdiction) so as to order the disclosure of specified types of sensitive Government-held information. Even though there is no equivalent of the Norwich Pharmacal jurisdiction in Scotland, the section extends there to prevent such a form of relief arising there in the future in relation to these types of sensitive information.
123.Subsection (1) describes the situation in which a Norwich Pharmacal order may be sought, reflecting recent case law. This case law is discussed in the background section above.
124.Subsection (2) restricts the ability to make such an order in cases where sensitive information is in issue, by providing that the court may not exercise its “residual disclosure jurisdiction” (as defined in subsection (6)) to order disclosure of sensitive information, whether the disclosure would be to the claimant or to another person on whose behalf the information is sought (the claimant’s spouse, for example).
125.Subsection (3) defines what is meant by “sensitive information” for these purposes. This includes any information, or alleged information, that is held by or for, or obtained from, an “intelligence service” (as defined in subsection (6)), or which is derived from such information or relates to an intelligence service (collectively referred to in these explanatory notes as “intelligence service information”). Information may be obtained from, or held on behalf of, an intelligence service where, for example, reporting from an intelligence service’s covert human intelligence source has been shared with the Home Office to enable that department to prepare a deportation case. Information may be derived from information obtained from, or held on behalf of, an intelligence service where, for example, an all-source intelligence assessment, produced by a government department, has been compiled using intelligence shared by a foreign intelligence partner with one of the intelligence services. And information relating to an intelligence service may include, for example, the fact of an intelligence sharing relationship with another country’s intelligence service. “Sensitive information” is also defined as information specified or described in a certificate issued by the Secretary of State for the purposes of the proceedings.
126.Subsections (4) and (5) set out the grounds upon which the Secretary of State may issue such a certificate. The Secretary of State may issue a certificate only if the Secretary of State considers it would be contrary to the interests of national security or the international relations of the United Kingdom to disclose the information, whether the information exists, or whether the person said to hold the information is in fact in possession of the information. The person said to hold the information may be the Secretary of State or may be another person (see subsection (7)(a)). The reference in subsection (4) to whether the information exists or whether the person from whom the information is sought has it is to deal with a situation where not only disclosure of the information but also confirmation or otherwise of the existence or possession of that information would be contrary to the interests of national security or international relations (this is known as the principle of “neither confirm nor deny”).
127.Subsection (6) defines various terms used in section 17. The definition of “intelligence service” comprises the Agencies and those parts of Her Majesty’s forces or Ministry of Defence (“MoD”) which engage in intelligence activities. The main parts of the MoD and Her Majesty’s forces which engage in such activities are the Special Forces and those parts of the MoD and Her Majesty’s forces which are collectively referred to as Defence Intelligence or which otherwise come under the authority of the holder of the MoD post of Chief of Defence Intelligence. The role of Defence Intelligence is the collection, assessment and management of intelligence as part of the national intelligence capability in both defence and wider government.
128.The definition of the “residual disclosure jurisdiction” in subsection (6) encompasses any jurisdiction to order the disclosure of information which is not conferred on the court by or under an enactment as a jurisdiction to order the disclosure of information. For example, the jurisdiction to order pre-action or third-party disclosure under sections 33 and 34 of the Senior Courts Act 1981 is a jurisdiction to order disclosure which is specifically conferred as such a jurisdiction by the 1981 Act, and so that jurisdiction is not within the residual disclosure jurisdiction and not affected by section 17. Neither, similarly, is the jurisdiction to order disclosure covered by the Civil Procedure Rules.
129.Subsection (7) clarifies that section 17 applies whether the information is being sought from the Secretary of State or from another. So the Secretary of State may issue a certificate in relation to information the disclosure of which would be damaging to national security or international relations, whether that information is being sought from him or her or, for example, from the police. Subsection (7) also provides that the Secretary of State retains all and any other rights or privileges that may be claimed to resist an application for disclosure of information – for example, public interest immunity.
130.The restrictions on disclosure in section 17 apply only in relation to “sensitive information” as defined in that section. The courts’ jurisdiction to order disclosure of non-sensitive information under Norwich Pharmacal relief remains unaffected. So if, for example, a person sought various pieces of information from the Secretary of State in the context of a Norwich Pharmacal application, some of which was intelligence service information, some of which was other “sensitive information” and some of which was not sensitive, the following might happen. The Secretary of State may issue a certificate in relation to the sensitive information that was not intelligence service information. Unless that certificate was set aside (see section 18), the court could not order the disclosure of the intelligence service information or the information covered by the certificate, but it could order the disclosure of the other (non-sensitive) information provided the Norwich Pharmacal criteria were met.
Section 18: Review of certification
131.Section 18(1) provides that a party to the proceedings in which the Secretary of State has issued a certificate under section 17(3)(e) (that is, a certificate in relation to sensitive material other than intelligence service information), may apply to the court for the certificate to be set aside. If such an application is successful, the prohibition on the court ordering disclosure of the information referred to in the certificate would not apply and disclosure could therefore be ordered under the court’s usual residual disclosure jurisdiction if the court took the view that the Norwich Pharmacal criteria were met.
132.Subsection (2) provides that the application to set aside the certificate may only be made on the ground that the Secretary of State was wrong to determine that disclosure of the information (or its existence or the fact of it being held) would be damaging to the interests of national security or the international relations of the United Kingdom.
133.Subsection (3) provides that in determining whether the certificate should be set aside, the court is to apply judicial review principles.
134.Subsections (4) and (5) have the effect that proceedings on a review of the certificate may take place within a CMP: the proceedings are “treated as section 6 proceedings” which means that a person may make an application for a CMP under section 8(1)(a). Proceedings arising from this section are therefore also included in the scope of sections 12 and 13 regarding reporting and review of the operation of CMP provisions.
135.Subsection (5) provides that, in these “deemed” section 6 proceedings, the Secretary of State is to be treated as the ‘relevant person’ and also that the references to the interests of national security in sections 8, 11 and 13 should be treated as references to the interests of national security or the international relations of the United Kingdom. This means that, unlike for most section 6 proceedings, a closed material application under section 8 may be made on the basis that the disclosure of the material would be damaging to the international relations of the United Kingdom (as such material may be included in a certificate). It also means that for the purposes of section 13 (review of sections 6 to 11), where the reviewer’s report discusses closed material proceedings relating to a Norwich Pharmacal certification, the Secretary of State can exclude material from the reviewer’s report that he considers damaging to either national security or the international relations of the United Kingdom