Commentary on Sections Part 2: Disclosure of sensitive material Section 8: Determination by court of applications in section 6 proceedings
87.Section 8 provides a power for rules of court to make provision specific to the second stage of the process, following the granting of a declaration under section 6, and sets out some of the things that must be included in the rules. So, for example, once a declaration has been made, a relevant person must make an application, if they wish for certain pieces or tranches of sensitive material to be heard in a CMP. In this application process, the court will consider whether it agrees with the assessment of the damage to national security that disclosure of the material in question would cause. If it agrees that disclosure would be damaging, the court must give permission for the material to be heard in closed. However, the court must consider whether a non-damaging summary of the material should be provided (in open proceedings) and, notwithstanding this requirement the court must always act in accordance with Article 6 of the European Convention on Human Rights.
88.In the process of applying for a CMP declaration under section 6, the person applying would need to demonstrate that there is relevant material the disclosure of which would damage national security. Therefore proceedings on the application for a declaration process are treated as “section 6 proceedings” (see section 11(4)). This means that a CMP can take place at this stage in order to protect the material (likely to be a subset of material relevant to the case) supporting the application for a declaration. Otherwise the person would not be able to demonstrate the sensitivity and relevance of material to be covered in a CMP for the trial of the issues in the case, because such material could not be disclosed in open court without causing damage to national security.
89.If the judge grants a CMP declaration, he will therefore already have considered, in the course of the initial proceedings on the declaration, whether the material supporting the application meets the test set out in section 8 (i.e. that this material would be damaging to national security if disclosed). It will not be necessary for a further application to be made in the main proceedings in relation to that same material, given that the judge would have already considered whether the material meets the section 8 test.
90.Subsection (1) provides that rules of court must secure certain matters in relation to proceedings in which a declaration is in place (“section 6 proceedings”). These rules must ensure:
91.Subsections (2) and (3) state that rules of court must provide for certain consequences where a relevant person does not receive permission from the court to withhold material but decides not to disclose it, or is required to provide a summary but chooses not to provide this summary. If the court considers that the material in question might undermine the relevant person’s case or assist the case of another party to the proceedings, then the court must be authorised to direct that the relevant person:
Subsection (3)(b) provides that, in any other case (generally where the material is supportive to the person who would be disclosing it) the court must be authorised to ensure that the relevant person does not rely on the material.