3 Extension of Closed Material Procedures
to all Civil Proceedings |
Evidence of the need for change
33. In our Report on the Green Paper we considered
carefully the evidence relied on by the Government to justify
making CMPs available in civil proceedings. We accepted that
under the current law it is theoretically possible for there to
be some cases in which a fair trial of a civil claim cannot proceed
because of the amount of material which cannot be disclosed on
Public Interest Immunity grounds. However, the critical question
for us was whether the Government had produced evidence which
shows that this is not merely a hypothetical problem, but a real,
practical problem that exists on the scale suggested in the Green
Paper, or on a scale sufficiently significant to warrant legislation.
34. In that Report we considered carefully the
evidence of the Independent Reviewer that there is a small but
indeterminate category of national security related claims, including
for civil damages, in respect of which it is preferable that the
option of a CMP, for all its inadequacies, should exist. However,
we found persuasive the evidence of the special advocates, who
fairly pointed out that the Independent Reviewer's views should
not be treated as evidence that the issues in the three civil
claims in which he saw the material are incapable of being determined
at all without resort to a closed material procedure. We therefore
concluded that, in relation to this part of the Green Paper, the
Government had not demonstrated by reference to evidence that
there is a real and practical problem which justifies the radical
departure from common law principles contained in the proposal
to extend CMPs.
35. In the Government's response to our Report,
it describes the problem as "rare but damaging."
At the time of the Green Paper, the Government estimated that
around 27 cases were posing difficulties. The Government says
it is clear that the number of such cases is increasing: since
the Guantanamo claims were settled in November 2010 "six
further civil damages claims against the Government have been
launched where sensitive material will be centrally relevant."
The Government relied on the Independent Reviewer David Anderson
QC's "comprehensive independent verification of the evidence
base for the existence of cases of this problematic type."
The Independent Reviewer reached that view after being provided
with a briefing at which he was talked through seven of the cases
causing problems, including three civil damages claims, and given
a bundle of top secret material in each case, including both evidence
and internal/external advice "material that could not have
been provided to members of the public or non-security cleared
36. In the Lords committee stage debate, some
peers took the same view as us that the Government had not yet
made out its case and asked for the Government to provide further
evidence of the need for change. Lord Falconer for example, pointed
out that the evidential foundation for the Government's case for
change consisted of three civil damages claims in which the Independent
Reviewer had looked at the material and reached the view that
a CMP would be necessary in those cases. He queried whether the
case for change had yet been proved: "We are willing to be
persuaded, but we need to be persuaded."
37. We are anxious to ensure that every reasonable
opportunity is afforded to the Government to make out its case
for the provisions on CMPs in Part 2 of the Bill. In their evidence
to our inquiry into the Green Paper, the Special Advocates had
pointed out that the Independent Reviewer had not had the benefit
of a countervailing independent but experienced party, such as
a special advocate, whose practical experience of handling sensitive
material in civil claims might have pointed to a different conclusion.
They thought that a way could be found to hear those claims acceptably
fairly, and without unacceptable disclosure of sensitive material,
without having to resort to a CMP. They considered that it was
possible that their practical experience of operating procedures
to deal with sensitive material would lead to a different view
of those three cases. They pointed out that "there is as
yet no example of a civil claim involving national security that
has proved untriable using PII and flexible and imaginative use
of ancillary procedures."
38. We asked the two special advocates who had
co-ordinated the Special Advocates' collective submission on the
Bill whether, if invited by the Government, they would be prepared
to view the material that was shown to the Independent Reviewer,
to see if they agreed with his view that a CMP was necessary in
those cases. They
indicated that they would be prepared to do so if asked by the
39. We therefore wrote to the Home Secretary
on 3 July suggesting that some experienced special advocates be
invited to view the material seen by the Independent Reviewer
in the three civil cases, to see if the special advocates agree
that they are cases which can only fairly be determined with a
CMP. We included
a copy of the relevant evidence the special advocates had given
to us, making clear that they would be happy to do so if asked.
In her reply dated 17 July the Home Secretary declined to do
so, for a number of reasons.
The briefing to the Independent Reviewer had involved making
a limited waiver of privilege to be able to show him information
including merits advice. The Home Secretary did not think it
appropriate to extend the waiver of privilege, which was granted
to the Independent Reviewer to enable him to see the information
concerned, to special advocates. She noted that special advocates
acted regularly against the Government in analogous cases., represented
active litigants, challenged the Government's position in high-profile
cases and had "well-known views about the system."
It was therefore considered that allowing them to view the material
would risk tainting them for future work, and the benefits were
in any event thought to be unclear given that special advocates
already have a good idea of the type of sensitive material that
can necessitate a closed process.
40. In view of the comments made about the special
advocates in the Home Secretary's response, we invited the special
advocates to respond to the Secretary of State's letter. In their
reply dated 2 October the special advocates made a number of comments
on the Home Secretary's reasons for declining the Committee's
· They reiterated that their reason for
disagreeing with the Independent Reviewer was that their experience
of handling sensitive material in civil cases suggested to them
that a way could normally be found for a claim to be heard acceptably
fairly and without unacceptable disclosure of sensitive material.
· They rejected the implication that their
views on the Bill were partisan, or that they were acting as advocates
for the parties they represented when they commented on the Bill.
Rather, they did so as interested members of the public with
particularly relevant experience of the way CMPs work in practice.
· They did not consider that the risk of
a special advocate having to decline to act in a future case having
seen the material to be a good reason for declining the Committee's
suggestion, because the special advocates were well aware of that
risk and had made clear that they were prepared to take it.
· Finally, they pointed out that "there
remains a real lack of clarity, both in the Home Secretary's letter
and from information provided by the Government to date, as to
the size of the problem arising specifically from civil damages
claims which it is said necessitates the proposals in the Bill."
They pointed out that it was not clear how the 15 civil damages
claims referred to by Lord Wallace in the Committee stage debates
on the Bill related to the six such claims referred to elsewhere
in Government documents and responses.
41. When the Independent Reviewer gave evidence
to us in June he told us that, in addition to the three cases
he had been shown which had convinced him that there was already
a problem, he suspected that "we are already beginning to
see the start of a second wave of cases concerning alleged complicity
in the targeting of drones. I can only imagine that those cases
may raise similar sorts of issues." We asked him more recently
if he knew exactly how many such cases have been started. He
was aware of two cases concerning alleged complicity in the targeting
of drones. However, he also said that he had been given up to
date information by the Ministry of Justice concerning the number
of civil damages claims that had been started that were likely
to be "saturated" in national security material, but
that he was not at liberty to pass this information on to the
42. In the light of the lack of clarity about
whether the number of pending claims is 27, 15, 6 or 3, and in
the light of the Independent Reviewer's evidence we wrote to the
Minister in charge of the Bill on 23 October to ask how many civil
damages claims were currently pending against the Government in
which sensitive national security information is centrally relevant,
and, to the extent possible, for a breakdown of those cases showing
the date on which proceedings were commenced and a summary of
the nature of the claim. We also asked in how many of these cases
it was the Government's view that the issues in the case could
not be fairly determined without a closed material procedure.
43. On 2 November we received a holding reply
explaining why it had not been possible to supply this information
by 31 October as requested.
The letter said that the Cabinet Office does not hold a central
database of the case details, but the information is held in each
Government department. It had been difficult to complete within
the timeframe, to a sufficient degree of reliability, the necessary
consultation with a significant number of individuals and departments
across Government. The cases involved are sensitive and complex,
and the status of cases is constantly shifting. The Government
also has to consider all the impacts of any information given
publicly about these very sensitive cases. It hopes to be able
to provide the information to us shortly.
44. We do not underestimate the problem the Government
has in demonstrating the difficulties it says it is experiencing
by reference to litigation which is still ongoing. We understand
that this makes it hard for the Government to prove its case.
However, what is being proposed is a radical departure from some
fundamental common law principles and the onus of justification
on the Government is correspondingly heavy.
45. We are disappointed by the Home Secretary's
refusal to allow some special advocates to see the material that
had been shown to the Independent Reviewer. In our view, this
would have provided the best evidence that could be made available
to Parliament as to whether there really exists a practical need
for the provisions on closed material procedures in Part 2 of
the Bill. It is unsatisfactory that the Government at the time
of agreeing our Report has still not been able to provide us with
the data we had requested on the number of civil damages claims
pending in which sensitive national security information is centrally
relevant. Pending receipt of a response to our latest attempt
to clarify the evidential basis for the Government's case for
the provisions in Part 2 of the Bill, we remain unpersuaded that
the Government has demonstrated by reference to evidence that
there exist a significant and growing number of civil cases in
which a CMP is "essential", in the sense that the issues
in the case cannot be determined at all without a CMP. In our
view this test of necessity is the appropriate test to apply to
the evidence, not the lower standard of whether there are cases
in which it would be "preferable" to have CMP as a procedural
Equality of arms
46. The Bill provides that in any civil proceedings
in the High Court, Court of Appeal or Court of Session, the Secretary
of State may apply to the Court for a declaration that a closed
material procedure may be used in those proceedings.
47. Under the Bill it is therefore only the Government
that can apply for a CMP. As the Special Advocates pointed out
in their written evidence on the Bill, the Government can therefore
still decide not to trigger a CMP if it considers that its own
interests would be better served by not doing so (for example,
because it does not want the court to reach its decision on the
basis of sensitive material which is embarrassing to the Government).
In the Special Advocates' view, if a power to hold CMPs is to
be introduced, both parties, and not just the Government, should
have the right to apply for them.
48. The Independent Reviewer agreed. In his
view, the Bill does not treat the parties to civil litigation
on an equivalent basis.
His evidence was that the Bill, as drafted, "plainly does
not guarantee equality of arms or the equal treatment of the two
parties to litigation."
I am a little baffled by this. It is very much
part of the Government's justification for the Green Paper and
the Bill that a closed material procedure can achieve fairness
for individuals whose claims would otherwise have been struck
out. I do not understand where the incentive is for the Government
to request a closed material procedure if they reckon that in
the absence of such a procedure they might win a strike-out. As
one sees from the judgment in AHK, it is not a fanciful possibility.
Mr Justice Ouseley said in that case that if there is no closed
material procedure, some of these cases will be struck out.
49. The House of Lords Constitution Committee
also made the same point in its first Report on the Bill, criticising
the one-sided scheme of CMPs provided for in the Bill. It found
it to be constitutionally inappropriate and an unjustified inroad
into the principle of equality of arms for the executive to be
a party to litigation and at the same time have the power to apply
for a CMP which is not a power enjoyed by the other party to the
50. The Government's entire justification for
extending CMPs to all ordinary civil proceedings is that this
will provide a fairer way of litigating cases in which national
security material is central to the claim or the defence. As
the Government's response to our Report on the Green Paper makes
clear, the absence of a CMP may in some cases cause unfairness
to the non-state party to litigation. The Government cites Lord
Clarke's comments in Al Rawi, that a closed procedure might
be necessary in a case in which it is the non-state-party which
wishes to rely upon the material which would otherwise be subject
to PII in order to defend itself in some way against the state;
and the recent AHK case in which Ouseley J. pointed to
the scope for unfairness towards a claimant who might have to
have their claim struck out if there is no means by which sensitive
intelligence can be heard in court. In our view, both the principle
of the equality of arms and the Government's own "fairness"
rationale for the extension of CMPs in civil proceedings require
that if CMPs are to be available at all in civil proceedings,
it should be possible for either party to litigation to initiate
the process. For reasons which we explain in more detail below,
we also think it would be desirable for the court itself to have
the power to raise the question whether a closed material procedure
51. We recommend that the Bill be amended
so that the court has the power to make a declaration, whether
on the application of either party or of its own motion, that
the proceedings are proceedings in which a closed material application
may be made to the court. Such an amendment is necessary in order
to make the Bill compatible with the requirement of equality of
arms, and to make it consistent with the Government's own justification
for extending CMPs in civil proceedings, which is to increase
the fairness of such proceedings for both parties.
52. The following amendments to clause 6(1) of
the Bill would give effect to this recommendation:
Clause 6, Page 4, Line 18, leave out 'The Secretary
of State may apply to'
Clause 6, Page 4, Line 19, after the first 'proceedings'
leave out 'for' and insert 'may, on application of either party
or of its own motion, make'
Judicial balancing at the "gateway"
53. In our Report on the Green Paper, we were
critical of the proposal that the decision to trigger a closed
material procedure in civil proceedings should be for the Minister
and not the court.
We agreed with the Independent Reviewer of Terrorism Legislation
who described the proposal in evidence to us as "profoundly
wrong in principle". The decision whether to order a CMP
must be one for the court, not the Government. We also emphasised
the importance of judicial balancing in any legal framework brought
forward by the Government: we recommended that the forthcoming
Bill should ensure that there is always full judicial balancing
of the competing public interests in play, both at the "gateway"
stage of deciding the appropriate procedure and at the subsequent
stage of deciding whether a particular piece of evidence should
be heard in closed or in open session.
54. The Bill provides that in any civil proceedings
in the High Court, Court of Appeal or Court of Session, the Secretary
of State may apply to the Court for a declaration that a CMP may
be used in those proceedings.
55. The Government says that this is one of the
significant changes from the proposals in the Green Paper, because
it means that the final decision that a CMP could be used will
be a judicial one, not a ministerial one. In his foreword to
the Government's response to the Committee's Report, for example,
the Secretary of State for Justice and Lord Chancellor said that
"This will ensure that the decision will be taken free of
political influence, and can only be taken where evidence a Closed
Material Procedure is necessary on national security grounds is
found to be persuasive by an independent judge." As the response
itself described the provision in the Bill, "the Minister
triggers the process by deciding that a CMP is needed, and applying
to the judge who determines whether it goes ahead."
The Intelligence and Security Committee, in its Annual Report,
appears to have taken this assertion at face value, noting that
"it is now judges who will have the final decision on whether
the request by Ministers for a case, or part of a case, to be
held under CMP conditions should be granted."
56. The Government's assertion requires closer
scrutiny. The Bill provides that the court "must" allow
a CMP if it considers that a party to the proceedings would be
required to disclose material in the course of the proceedings
to another person and that such disclosure would be damaging to
the interests of national security.
Moreover, when deciding whether a party would be required to disclose
material, the court is expressly required to disregard the possibility
that there might not be disclosure because the material can be
withheld on PII grounds.
57. As the Special Advocates said in their written
evidence, the Bill therefore cannot really be said to provide
for a judge to take the decision as to whether a CMP is needed,
because of the extent to which clause 6(2), as currently drafted,
ties the judge's hands when considering the Government's application.
In the words of Angus McCullough QC, "there is, in reality,
no discretion provided for the role of the judge in relation to
determining what the fairest way of determining any particular
58. The Independent Reviewer agreed. He said:
In fairness to the Government, under the procedure
devised in the Bill the judge does have the last word. The only
difficulty is that that word is dictated to the judge by the Secretary
of State. First, the judge can make a decision only if the Secretary
of State makes an application and has no other jurisdiction to
consider it. Secondly, when the judge does come to consider it,
it is not for him to weigh up the relative merits of PII or CMP,
or to decide what the fairest way would be to decide the case.
The judge's hands are effectively tied. If there is disclosable
material that impacts on national securityas there obviously
will be in any case in which an application is madethe
judge is required to agree. The word "must" features
in Clause 6. The judge "must" order a closed material
procedure. It seems that the Government have given formal effect
to the requirement that the judge should have the last word, but
in substance the Secretary of State continues to pull the strings.
59. In his more recent evidence to us the Independent
Reviewer said that he maintained his view that, although the provisions
concerning CMPs in Part 2 of the Bill address a genuine question,
they do so in a disproportionate manner. He proposed some possible
amendments to the Bill; the principal change suggested was to
give the judge a genuine discretion to decide whether a CMP should
At the gateway stage I would allow the judge
to exercise discretion as to whether it is a case in which a CMP
application could, in the future, be made to the court. He is
currently required to declare that it is a CMP case whenever disclosure
would be damaging to the interests of national security; 6(2)(b).
He is directed to ignore the fact that the PII process might
result in that material being withheld; 6(3)(a). Only the Secretary of State
may consider the alternative of PII; Clause 6(5). The judge
ought to be able to decide, in my view, "Let's go with PII
for now and see how we get on. I am not going to tell you at
the outset that this case is suitable for a closed material procedure."
I do not go so far as to say that the judge should
be obliged in all cases to exhaust PII before he comes to the
possibility of a CMP, but the judge should be trusted to make
the relevant decision. It is ultimately a case management decision
and whether CMP or PII or some combination of the two is the eventual
outcome, in this type of litigation the Government's secrets are
safe, so I can see no reason not to leave that discretion to the
60. We agree with the suggestion of the Independent
Reviewer. We recommend that the Bill be amended so as to make
the availability of CMP in civil proceedings a matter of genuine
judicial discretion. The decision as to whether there should
be a CMP should not be the subject of a statutory duty to direct
one where there is material that is relevant to the proceedings
and that it would be damaging to national security to disclose.
Rather it should be the product of a full judicial balancing exercise
in which the court weighs the competing public interests before
deciding whether there should be a CMP.
61. When exercising that judicial discretion
the court should not be required to ignore the fact that the PII
process might result in the material being withheld, and should
actively consider whether a claim for PII could have been made
in relation to the material. We therefore also recommend that
clause 6(3)(a) be deleted and a new sub-clause added to the Bill
requiring the court to consider whether a claim for PII could
have been made in relation to the material.
62. The following amendments to clause 6 of
the Bill would give effect to this recommendation:
Clause 6(2), Page 4, Line 21, leave out 'must, on
an application under subsection (1)' and insert 'may'
Clause 6(2), Page 4, Line 27, after sub-paragraph
(b) insert new sub-paragraph
'( ) the degree of harm to the interests of national
security if the material is disclosed would be likely to outweigh
the public interest in the fair and open administration of justice'
Clause 6(3), Page 4, Line 30, leave out sub-paragraph
Clause 6(5), Page 4, Line 42, after sub-clause (5)
insert new sub-clause
( ) Before making a declaration under subsection
(2), the court must consider whether a claim for public interest
immunity could have been made in relation to the material.
Strict necessity: CMPs only as
a last resort
63. As we pointed out in our Report on the Green
Paper, one of the options for reform was that put forward by the
Independent Reviewer of Terrorism Legislation, in his evidence
to us on the Green Paper. He was in favour of adding CMPs to
the procedural armoury of the civil courts, provided strict conditions
of necessity were satisfied. This included the requirement that
"the court's power to order a CMP should be exercisable only
if, for reasons of national security connected with disclosure,
the just resolution of a case cannot be obtained by other procedural
means (including not only PII but other established means such
as confidentiality rings and hearings in camera)." In other
words, CMPs should be available in civil proceedings, but only
as a very last resort to enable the resolution of claims which
would otherwise be untriable.
64. The Bill as drafted fails to ensure that
a CMP will be adopted only when strictly necessary. As the Special
Advocates point out in their submission on the Bill, this is because
the "test" to be applied by the court at the gateway
stage does not require
the court to ask whether the case is one which can only be justly
resolved using a CMP rather than the existing procedural mechanisms.
This means that if the Government decides to apply to trigger
a CMP, the judge will be obliged to accede to the application
if there is any sensitive material relevant to the case and the
disclosure of which would damage national security. This is so
even if the judge considers that the case could be tried using
the existing PII rules in a way that is fair to both sides, and
that a CMP is not therefore needed to determine the issues in
the case fairly. The Bill, in short, contains nothing to ensure
that CMPs will only be resorted to as a matter of last resort
when a trial could not otherwise proceed.
65. When we asked the Independent Reviewer whether
Part 2 of the Bill as drafted contains the sort of conditions
that he had in mind to ensure that a CMP is resorted to only in
cases of strict necessity, he was categoric that it does not:
I said that I thought that a CMP could be tolerable
in these sorts of casesbut only if certain conditions were
satisfied. One was that a CMP should be a last resort to avoid
cases being untriable, as Lord Kerr put it in the Al Rawi
case. [...]The consequence in the way things will be done, if
the clause becomes law, is that some cases will be tried by a
closed material procedure that could have been fairly tried under
PII. It may also be that some cases may be struck out that could
more fairly have been tried by a closed material procedure. These
would be cases where the Government, for whatever reason, chose
not to apply for a closed material procedure.
66. The Independent Reviewer in his more recent
evidence indicated that he would be supportive of building into
clause 6 of the Bill a requirement that a CMP only be permitted
as a last resort: as he put it, a CMP should be available only
if "there is no other fair way of determining the case."
67. We recommend that the Bill be amended
so as to ensure that a CMP is only ever permitted as a last resort,
by making it a precondition of a declaration that the court is
satisfied that a fair determination of the issues in the proceedings
is not possible by any other means.
The following amendment to clause 6(2) would give
effect to this recommendation:
Clause 6, Page 4, Line 27, insert new sub-paragraph
( ) a fair determination of the proceedings is not
possible by any other means.
Judicial balancing in the CMP
68. In our Report on the Green Paper, we recommended
that there should be full judicial balancing of the public interests
in play within the CMP, when deciding whether material should
be in closed or open, as well as at the earlier "gateway"
stage of deciding the appropriate procedure.
The Government in its response to our Report disagreed.
Within the CMP, it said, the proposals envisaged full judicial
involvement on whether individual documents should remain in closed,
but that judicial involvement should not be based on a PII-style
balancing test. "Rather, the guiding criteria must be whether
open disclosure of the material is damaging or not", subject
only to the requirements of Article 6 ECHR.
69. During the Bill's committee stage, the Government's
main substantive response to the criticism underlying the various
proposed amendments to clauses 6 and 7 of the Bill on CMPs was
that the proponents of amendments had failed to appreciate the
extent to which an exercise "very similar to PII" would
in fact take place at stage two of the proceedings, when the court
considers whether each piece of evidence should be heard in closed
or in open session.
70. In fact, at this stage, as the evidence of
the special advocates over many years has made clear, the exercise
which takes place is not at all like a PII exercise. This is
because judicial balancing is ruled out completely by clause 7(1)(c)
of the Bill: material the disclosure of which would be damaging
to the interests of national security must be dealt with
in the closed proceedings.
71. We recommend that the Bill be amended
to ensure that a full judicial balancing of interests always takes
place within the CMP, weighing the public interest in the fair
and open administration of justice against the likely degree of
harm to the interests of national security when deciding which
material should be heard in closed session and which in open session.
The following amendment would give effect
to this recommendation:
Clause 7(1)(c), Page 5, line 33, after 'security'
insert 'and that damage outweighs the public interest in the fair
and open administration of justice'.
The "AF (No. 3) disclosure
72. The so-called "AF (No.3) disclosure
obligation" (sometimes referred to as the "gisting"
obligation) is the obligation to disclose to the opposing party
in litigation sufficient material to enable them to give effective
instructions to their special advocate who represents their interests
in closed material procedures.
73. In our Report on the Green Paper we recommended
that the obligation to disclose sufficient information to enable
effective instructions to be given to an individual's special
advocate should always apply in any proceedings in which CMPs
are used. The Government,
however, rejected this recommendation, having concluded that "this
is a complex area which is more suited to treatment by the courts
on a case by case basis."
The Bill therefore makes no provision for such disclosure when
a CMP takes place in civil proceedings under the provisions of
74. In our Report on the Green Paper, we noted
that the former Reviewer of Terrorism Legislation, Lord Carlile
of Berriew, had expressly agreed in his oral evidence to us that
the disclosure obligation should apply to all proceedings, and
there was no respectable argument against it in any circumstances.
The current Independent Reviewer has also consistently acknowledged
the importance of gisting. We asked him whether, as a matter
of basic fairness, there should be a general obligation in a civil
litigation CMP to disclose sufficient information to the excluded
party to enable them to give effective instructions to their special
advocate. He said that he could see the great attractions from
a policy point of view of requiring gisting in all types of case.
His extensive knowledge of control orders also meant that he
found it tempting in policy terms to ask, if the gist can be given
to those subject to control orders, who are considered to pose
the greatest risk in terms of terrorism, why it should not also
be given to those who might be bringing a civil claim. He "could
not agree more that the more information one can give the individual,
the better it is from the point of view of the fairness of a closed
75. The Special Advocates in their evidence pointed
out that, if a CMP is triggered, the Bill does not require the
excluded party to be given a summary of the closed material.
It requires only that the court consider requiring such a summary
to be given. Importantly,
however, the court is required to ensure that the summary does
not contain material whose disclosure would be contrary to the
interests of national security.
76. We agree with the Special Advocates' recommendation
that, if there is to be a power to hold a CMP, there should be
a statutory requirement in all cases to provide the excluded party
with a gist of the closed material that is sufficient to enable
him to give effective instructions to his Special Advocate. The
absence from the Bill of such a disclosure obligation seriously
limits the opportunities for special advocates to mitigate the
unfairness caused by the Bill's departure from the principles
of open and adversarial justice. We recommend that the Bill be
amended to impose such a disclosure obligation in all cases in
which a CMP is held. The following amendments
would give effect to this recommendation:
Clause 7, Page 5, line 35, leave out "consider
requiring" and insert "require"
Clause 7, Page 5, Line 37, at end insert 'sufficient
to enable the party to whom the summary is provided to give effective
instructions on the undisclosed material to their legal representatives
and special advocates'
Clause 7, Page 5, line 38, after 'ensure' insert
'so far as it is possible to do so'.
20 JCHR Report on Green Paper, paras 56-80, esp. paras
72 and 80. Back
Government Response to JCHR Report, p. 2. Back
Ibid., p. 4. Back
Ev 1. Back
Ev 2. Back
Ev 6. Back
Ev 10. Back
Cl. 6(1) of the Bill. Back
Lords Constitution Committee First Report on the Bill, paras 18-20. Back
See section on "judicial balancing" below. Back
JCHR Report on the Green Paper, paras 99-103. Back
Cl. 6(1) of the Bill. Back
Government Response to JCHR Report, p. 7. Back
ISC Annual Report 2011-12, at para. 163. Back
Cl. 6(2). Back
Cl. 6(3). Back
Q40 (26 June 2012). Back
Q7 (19 June 2012). Back
Q70 (16 October 2012). Back
Clause 6(2) of the Bill.The gateway is the stage at which the
court decides whether to make a declaration that the proceedings
are proceedings in which a closed material application may be
made to the court. Back
Qs 6 and 8 (19 June 2012). Back
Q70 (16 October 2012). Back
JCHR Report on the Green Paper, paras 102-3. Back
Government Response to JCHR Report, p.7. Back
JCHR Report on the Green Paper, para. 106. Back
Government Response to JCHR Report, p. 7. Back
Q18 (19 June 2012). Back
Clause 7(d). Back
Clause 7(e). Back