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Civil Procedure (Amendment No. 2) Rules 2009

I thank all noble Lords who have spoken in this debate. I shall deal first with the question asked by the noble Lord, Lord Bew. I am grateful for having had some advance notice of what he was going to say. He asked about the vetting of special advocates and about small and medium-sized enterprises, known as SMEs. The vetting procedure for special advocates is, as I think he indicated, substantially the same as the developed vetting procedure that civil servants go through before being cleared to work in areas involving access to sensitive material. This involves credit checks, interviews and criminal checks. It can be described as a high level of vetting. The noble Lord asked, completely appropriately, about small businesses. This point was dealt with in a letter that my honourable friend Bridget Prentice, who spoke on behalf of the Government when these rules were being debated last week in the other place, placed in the Library. She said: "““A question was asked whether or not these rules apply to small businesses. I believe that this question has arisen as a result of a statement in paragraph 11 of the Explanatory Memorandum to these rules which states that this legislation does not apply to small businesses””." She went on to say: "““This legislation does apply to small businesses. What the Explanatory Memorandum should have indicated was that the legislation does not impact on the regulation affecting small businesses””." I am grateful to have the chance to repeat in this House what my honourable friend said in her letter. I thank the noble Lord, Lord Henley, for his comments and for their brevity. He referred, quite rightly, to a question that his honourable friend Mr Bellingham asked in the other place about whether it was possible to do this without a hearing. In her letter, Mrs Prentice said: "““I would like to reassure the Committee””—" I hope that I am also reassuring the House tonight— "““that in no way do the rules of court seek to prevent parties or their legal representative from being present for the determination of proceedings at a hearing. Rule 79.17(1) of the Civil Procedure Rules 1998 and Rule 22.1 in Order 116B of the Rules of the Supreme Court of Northern Ireland 1980 make it clear that all proceedings must be determined at a hearing and although there are exceptions, these would apply where the proceedings are no longer contested, are withdrawn, or where all the parties agree to determination without a hearing””." I thank the noble Lord, Lord Thomas of Gresford, for his contribution. I admire and respect his consistency on this topic. But it compares peculiarly with what his honourable friend Mr Brake said on behalf of the Liberal Democrat Front Bench at the hearing last week. He said that he was looking forward to having the questions answered, which was fair enough, and then he said: "““However, on the basis that I have been advised that these measures are not controversial, I will certainly not seek to delay their progress””.—[Official Report, Commons, Eleventh Delegated Legislation Committee, 21/1/09; col. 7]" I would hate to see any proposals that were controversial. Powerful arguments were put forward by the noble Lord, Lord Thomas of Gresford. I cannot accept them on behalf of the Government. The House will be relieved to hear that I shall not go into the issue in detail now, but I hope that he accepts, as I am sure he does, that where terrorists are planning to commit offences against innocent people, they need funding. It is vital that Her Majesty’s Treasury act at once to freeze that funding as soon as its existence is known. The statutory instruments set out how an applicant who complains about those assets being frozen can apply to the court to oppose the action of the Treasury. That is the background to the instruments, which are parallel—one for England and Wales, and one for Northern Ireland. As to whether fundamental liberties have been put at stake by the existence of special advocates and closed material, the Government have consistently made clear their view that the measures in the Prevention of Terrorism Act 2005, including the special advocates procedures, are fair and fully compliant with the European Convention on Human Rights. That view has been upheld in the Court of Appeal. For the same reasons, we consider that the measures in Counter-Terrorism Act are fully compliant. To try to relieve the noble Lord, Lord Thomas of Gresford, of one of his concerns, I emphasise that, wherever possible, material will be dealt with in open court, where the designated person is represented by legal representatives of their choosing. Where there is closed material, a special advocate will be appointed to represent that designated person. The individuals will be aware of the open case against them. Nothing in the CT Act or these rules of court made under it requires the court to act in a manner incompatible with the right of the applicant to a fair hearing. A very similar special advocate scheme was recently held by the House of Lords to be human rights compliant. I know that I shall not persuade the noble Lord that it is right that the Government have sometimes to use these procedures, but it is our view that, to prevent terrorism and to make sure that it is unsuccessful, these measures sometimes have to be taken. They will not be taken unless it is necessary to do so. Motion agreed.