David Lidington MP gave evidence earlier in March to the House of Lords EU Select Committee on the proposed new procedural rules in the EU court to prevent classified or confidential material from being disclosed in court (an issue on which this blog has been reporting).
The Minister said the impetus for a new closed material procedure came from the Court and Member States after the Kadi judgments: “We thought that having a closed material procedure was a useful step forward in enabling the Council to protect key sanctions listings in a fashion which the court would find acceptable”, in order to protect intelligence material and confidential UN material. The Minister said: “I would argue that the outcome in Kadi was a blow to our ability to pursue an effective sanctions policy as a tool of wider foreign and security policy. CMP is part of adapting to that jurisprudential reality”.
The UK alone abstained in the Council vote on the new rules because of concerns that the originator of the information could not withdraw the information after a certain stage, and that there was no mechanism for checking inadvertent disclosure in orders & judgments. The Minister said that other Member States were less worried because they “do not have the capacity to reply confidential or secret information in support of sanctions listings” so did not have the UK’s concerns; there was a feeling that “this British issue was a bit outré”. The UK special advocate procedure apparently “never really caught fire” as a suggestion.