On 26 June 2013, the Government tabled the Civil Procedure (Amendment No 5) Rules 2013 (“the Rules”) in both Houses of Parliament. The Rules came into force the following day and will lapse unless approved by both Houses within 40 days. Made pursuant to Schedule 3(3) of the Act the Rules will amend the Civil Procedure Rules to provide guidance on the operation of closed hearings in ordinary civil cases (Sections 6 and 7, JSA). They also cover applications under Section 18 of the Act to set aside the certification of a specific case by Ministers as one where Norwich Pharmacal jurisdiction will not be available. Despite the controversial nature of these reforms, the Rules were published in draft for only around 10 working days, placed in the libraries of both Houses, without fanfare on 11 June 2013.
JUSTICE raises concerns about:
- The lack of time for consultation;
- The Rules of Court, hastily thrown together by officials and with little consultation, would set aside the overriding objective of our courts to do justice in favour of absolute secrecy in any case where national security is raised by Ministers.
- They would do nothing to improve the capacity of the Special Advocate to represent the interests of the excluded party.
- They take no steps at all to address the impact on other procedural steps within the wider Civil Procedure Rules which may be adversely affected by the introduction of CMP (such as the rules on settlement in Part 36).
The Rules appear to confirm that the true function of Part 2 of the Act will be, in practice, to deter litigation against the Government in national security cases or to create a significant litigation advantage for Ministers in cases that proceed.
JUSTICE Briefing – Justice and Security Act 2013 – July, 2013