Commentary on Sections and Schedules Part 1 – Terrorist Asset-Freezing Supervision of exercise of powers Section 28 – Appeals and reviews: supplementary
70.This section makes additional provision about proceedings in the High Court or the Court of Session (a) on an appeal under section 26 or an application under section 27 or (b) on a claim arising from any matter to which such an appeal or application relates (“appeal and review proceedings”).
71.Subsection (1) inserts paragraph 2(bc) of Schedule 1 to the Senior Courts Act 1981. This ensures that appeal and review proceedings will be allocated to the Queen’s Bench Division.
72.Subsection (2) inserts section 18(1)(dc) of the Regulation of Investigatory Powers Act 2000 (“RIPA”). Section 17 of RIPA contains a general prohibition on the use of intercepted communications in legal proceedings. Section 18 of RIPA lists certain exceptions to that general prohibition and paragraph (1)(dc) will enable the disclosure of intercepted communications in appeal and review proceedings.
73.Subsection (3) inserts reference to section 18(1)(dc) of RIPA into section 18(2)(zb) of that Act. This provides that the exception created by subsection (2) does not extend to disclosure to parties to proceedings, other than the Treasury or persons appointed as special advocates.
74.Subsection (4) applies sections 66 to 68 of the Counter-Terrorism Act 2008 in relation to appeal and review proceedings as they apply in relation to financial restrictions proceedings within the meaning of section 65 of that Act. These sections were introduced to make provision about the rules of court for applications to set aside decisions under the 2006 Order and similar Orders. They require the maker of the rules of court to have regard to both the need for a proper review of the decision subject to challenge, and the need to ensure that disclosures are not made where this would be contrary to the public interest. They also contain provisions requiring rules of court to include rules in relation to applications by the Treasury to withhold material from disclosure and provisions relating to the appointment of a special advocate in financial restrictions proceedings. A special advocate is a qualified lawyer who has passed through the Government’s security vetting process, whose role is to represent the interests of a party to the proceedings (including any appeal) in circumstances where that party and his own legal representative are excluded from the proceedings. This would be necessary in appeal and review proceedings where, for example, closed source evidence is adduced. The special advocate is appointed by the appropriate law officer. Rules made under sections 66 and 67 of the Counter-Terrorism Act form Part 79 of the Civil Procedure Rules.