The Tribunal Procedure (Upper Tribunal) Rules 2008

Rule 26A(4)

[F1SCHEDULE 2Additional procedure in national security certificate cases

1.  This Schedule applies only to national security certificate appeals.

2.  Following the transfer of the appeal from the First-tier Tribunal, the Upper Tribunal must provide a copy of the notice of appeal to the respondent, the relevant Minister and the Information Commissioner.

3.  The relevant Minister must send or deliver to the Upper Tribunal a copy of the certificate to which the appeal relates, and a response to the notice of appeal, not later than 42 days after the date on which the relevant Minister received a copy of the notice of appeal.

4.  In an appeal under section 28(4) of the Data Protection Act 1998[F2, sections 27(3), 79(5) or 111(3) of the Data Protection Act 2018] or section 60(1) of the Freedom of Information Act 2000 (including that subsection as applied and modified by regulation 18 of the Environmental Information Regulations 2004), the relevant Minister’s response must state whether the relevant Minister intends to oppose the appeal and, if so set out—

(a)a summary of the circumstances relating to the issue of the certificate;

(b)the reason for the issue of the certificate;

(c)the grounds on which the relevant Minister relies in opposing the appeal; and

(d)a statement of the evidence on which the relevant Minister relies in support of those grounds.

5.  In an appeal under section 28(6) of the Data Protection Act 1998[F3, sections 27(5), 79(7) or 111(5) of the Data Protection Act 2018] or section 60(4) of the Freedom of Information Act 2000 (including that subsection as applied and modified by regulation 18 of the Environmental Information Regulations 2004), the relevant Minister’s response must state whether the relevant Minister intends to make representations in relation to the appeal and, if so set out—

(a)the extent to which the relevant Minister intends to support or oppose the appeal;

(b)the grounds on which the relevant Minister relies in supporting or opposing the appeal; and

(c)a statement of the evidence on which the relevant Minister relies in support of those grounds.

6.  The Upper Tribunal must—

(a)subject to paragraph 11, provide the relevant Minister’s response and any other response to the appellant, the Information Commissioner and any respondent; and

(b)send a copy of any other response to the relevant Minister.

7.  On grounds of the need to ensure that information is not disclosed contrary to the interests of national security, the relevant Minster may—

(a)object to the disclosure of the relevant Minister’s response to the appellant, the Information Commissioner or any respondent, by sending a notice to the Upper Tribunal with the response; or

(b)object to the disclosure of any other response to the Information Commissioner or any respondent, by sending a notice to the Upper Tribunal within 42 days of the date on which the relevant Minister received a copy of the response.

8.  A notice under paragraph 7 must—

(a)state the reason for the objection; and

(b)in the case of a notice under paragraph 7(a) and to the extent that it is possible to do so, be accompanied by a version of the relevant Minister’s response in a form that can be shown to the appellant, the Commissioner or, as the case may be, a respondent.

9.  Before the Upper Tribunal gives a direction, issues a summons or citation, or produces or publishes a written record of, or reasons for, a decision—

(a)the Upper Tribunal must notify the relevant Minister of the proposed action; and

(b)if the relevant Minister considers that the proposal would cause information that is or would be exempt by virtue of a provision in Part 2 of the Freedom of Information Act 2000 to be disclosed, the relevant Minister may object to the proposal by sending a notice to the Upper Tribunal [F4so that the Upper Tribunal receives the notice within 14 days of the date that the Minister received notice of the proposal].

10.  When deciding whether to uphold an objection made by the relevant Minister—

(a)any hearing must take place in the absence of the parties;

(b)if the Upper Tribunal is minded to overrule the relevant Minister’s objection, or to require the relevant Minister to provide a version of the relevant Minister’s response in a form other than one provided under paragraph 8(b) above, the Upper Tribunal must invite the relevant Minister to make representations; and

(c)if the Upper Tribunal overrules an objection in relation to the disclosure of a response, the [F5Upper] Tribunal must not disclose, or require the relevant Minister to disclose, any material the subject of the objection unless the relevant Minister relies upon that material in opposing the appeal.

11.  Where the relevant Minister may object to the disclosure of a response or proposed action by the Upper Tribunal, the Upper Tribunal may not proceed with that disclosure or that proposed action unless—

(a)the time for the relevant Minister to object has expired; and

(b)the relevant Minister has not objected, or the [F6Upper] Tribunal has overruled the relevant Minister’s objection and, in the case of the disclosure of a response, may proceed with the disclosure under paragraph 10(c).]