to be read down so as to be intra vires the rule making power in section 69 (6), or to
comply with the principles of legality and equality of arms underlying Article 6.
26. Mr. Eadie resisted the proposition that the Tribunal should at this stage of these
proceedings embark on a wide-ranging review of the effect of the Rules, in the
absence of a defined issue and at least an assumed factual basis, and, so he
submitted, on the basis of an argument from the Claimants which was incorrect in
asserting that the effect of the Tribunal’s decision in Kennedy had been to hold that
Rule 6 (2) (a) was ultra vires. It was submitted that the Tribunal should continue to
apply its procedural ruling in Kennedy. The response from Miss Rose was that the
issues raised by the Claimants’ submissions need to be decided because at any time a
closed hearing could take place without notice to the Claimants.
27. In our judgment this is not the appropriate time at which to re-consider the effect of
the rules relating to closed hearings. The basis on which it may be contended that
some of the provisions of the rules are ultra vires, or require to be read down, has not
been fully argued, and these are issues of importance, not only for these proceedings
but also for other cases. The Tribunal would require full argument on the questions,
when and if they arise, as to whether there is power in this Tribunal to request the
appointment of a Special Advocate who should have access to closed material, or
whether there is power to provide to the Claimants, without the consent of the
Respondents, a gist or summary of information or submissions which have been
made in a closed hearing.
28. At paragraph 8 of the judgment of Lord Neuberger in Bank Mellat it was made clear
that where Parliament has required a court or tribunal to adopt a closed material
procedure then, subject to Article 6, that procedure must be followed.
29. The Tribunal is under a duty, imposed by Rule 6 (1), to carry out its functions to
secure that information is not disclosed to an extent or in a manner prejudicial to
national security or the continued discharge of the functions of any of the intelligence
agencies. Those interests require the “neither confirm nor deny” policy to be
respected.