“Closed Material Procedure” Provisions in Justice and Security Act 2013: Statutory Review

I am today announcing the establishment of the statutory review of the “closed material procedure” (CMP) provisions in the Justice and Security Act 2013.

The use of CMP is set out in sections 6 to 11 of the Act, about the disclosure of sensitive material in civil proceedings. In particular, section 6 of the Act empowers senior courts, the Supreme Court, the Court of Appeal and the High Court, including in Northern Ireland, and the Court of Session in Scotland, 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, the disclosure of which would be damaging to national security. An application for the declaration may be made by either the defendant or the claimant and a court can also make a CMP declaration of its own motion. Information on the use of CMP under the Act is already publicly available and can be found at https://www.gov.uk/government/collections/use-of-closed-material-procedure-reports

Section 13 of the Act contains a requirement to review the use of CMP under the Act, as soon as reasonably practicable, after five years from when the relevant section of the Act came into force. The review must therefore cover the period from 25 June 2013 to 24 June 2018.

These are the terms of the reference for the review, broadly mirroring the requirements set out in the Act and its explanatory notes:

“1. In accordance with s. 13(1) and (2) of the Justice and Security Act 2013, to review the operation of the following sections of the Act covering the period from 25 June 2013 to 24 June 2018:

Section 6 (declaration permitting closed material applications in proceedings)

Section 7 (review and revocation of declaration under section 6)

Section 8 (determination by court of applications in section 6 proceedings)

Section 9 (appointment of special advocate)

Section 10 (saving for normal disclosure rules)

Section 11 (general provision about section 6 proceedings)

2. In relation to the above, to review the operation of section 17(3)(e) (disclosure proceedings) of the Act, and of those procedure rules relevant to sections 6-11 of the Act.

3. To report to the Secretary of State for Justice.

In accordance with s. 13(5) and (6) of the Act, the Secretary of State must lay a copy of the reviewer’s report before Parliament. Before doing so, the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.”