Commentary on Sections Part 2: Disclosure of sensitive material 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.