| Previous Section | Index | Home Page |
Mr. David Winnick (Walsall, North): I am listening very closely, as we all are, because the subject is very important. My interest in the subject was aroused when a constituent of mine, Raghbir Singh, was put in prison without being charged, held for more than a year and released only as a result of the judgment of the European Court of Human Rights. He was released within a week of that judgment. Had that judgment not been made, for all I know, Raghbir Singh, whether guilty or not--no charges whatever were made against him and he had lived lawfully in the United Kingdom for 12 years--might have remained in prison to this very day and beyond. Such cases must cause us much concern, as I shall obviously develop if I am called to speak in the debate.
Mr. O'Brien: I hear what my hon. Friend says. A number of matters were certainly affected by the outcome of the Chahal case. We are anxious throughout to protect the rights of every person who comes before the law and who is dealt with by the Home Secretary as well as to ensure that the security of the nation is protected. Striking that balance is what the Bill is all about. It may help the House if I give some information about the numbers of people affected and the types of cases. I shall outline the Chahal case, because it provides the basis for the Bill and is also a brief reminder of the background.
In 1990, Karamjit Singh Chahal, an Indian national with indefinite leave to remain in the United Kingdom, was made the subject of a deportation order on the grounds of national security and other reasons of a political nature, including the international fight against terrorism. The order reflected the then Home Secretary's view that there was evidence suggesting that Chahal was involved in terrorist activities connected with the Sikh separatist movement in his homeland. Mr. Chahal then claimed asylum, but his application was refused. The ground for the decision to deport him was national security and there was, at that time, no right of appeal to the immigration appellate authorities against the Home Secretary's decision. Nor was there any right of appeal against refusal of the asylum application.
The security case against Mr. Chahal was considered by the non-statutory advisory panel in accordance with the arrangements that I have already outlined. Having exhausted his domestic remedies, including judicial review, without success, Mr. Chahal applied to the European Court of Human Rights. In its judgment in Mr. Chahal's favour last November, the court found that the existing procedures for dealing with cases involving the deportation of foreign nationals on the grounds of national security--and, in particular, the arrangements for challenging decisions made by the Secretary of State in such cases--were in breach of the European convention on human rights. Specifically, it found that the procedures were deficient in respect of article 5(4) and article 13 of the convention. In brief, it found that there was no provision for the basis of any detention to be meaningfully considered by a court in national security cases and that there was no effective domestic remedy for a violation of rights under the convention.
The Government accepted the court's judgment and introduced the Bill in another place shortly after the election. Until the Bill is passed, our ability to deport a person on national security grounds is necessarily severely constrained. While the Bill is mainly required to respond to the Chahal judgment, it also gives us the opportunity to provide a right of appeal to the same commission to certain European Economic Area nationals and to those otherwise exercising rights under the treaty of Rome, in cases in which there is currently no right of appeal. Those are predominantly cases involving national security considerations.
The Bill is short and has a limited purpose. Those affected by it fall into narrow categories and I have already outlined to the House the numbers who, in normal circumstances, will be involved. The House will also bear it in mind that in the past--for example, during the Gulf war--more people became involved in such applications.
Clause 1 will establish a new body, which will be known as the special immigration appeals commission. As schedule 1 makes clear, appointments to the commission, like appointments to the immigration appellate authority, will be made by the Lord Chancellor. Members of the old advisory panel were, by contrast, appointed by the Home Secretary. When hearing an appeal, the commission will comprise three members. One will be a person who holds or has held a high judicial office--at least a High Court judge. The second must be a person who has experience of dealing with immigration appeals. As a result of an amendment made in the other place, it is now clear on the face of the Bill that that person must be either a legally qualified member of the immigration appeal tribunal or the chief adjudicator.
The qualifications of the third member are not specified in the Bill. However, it is intended that the person will have some experience of national security matters and will be familiar with the evidence that is likely to be presented to the commission. The Lord Chancellor takes the view that those arrangements will best represent a proper balance of knowledge and experience for the commission.
Clause 2 sets out the circumstances in which a person may appeal to the new commission. The Immigration Act 1971 and, more recently, the Immigration (European Economic Area) Order 1994 have previously denied any appeal in the cases described. For the most part, the cases in which there has been no right of appeal have been those in which a decision has been taken on the basis that it would be conducive to the public good on the grounds of national security.
Clause 3 provides that the new commission will be able to grant bail when a person is detained under the Immigration Act 1971 and the grounds of the detention are that it is in the interests of national security. Schedule 3 modifies the existing bail provisions in cases dealt with by the new commission.
Clause 4 represents the most important amendment made in another place. It was not clear in the original draft of the Bill whether the commission could make decisions that would be binding on the Home Secretary. As Lord Williams of Mostyn made clear on Second Reading in the other place, it had always been the intention that the decisions of the commission would be
binding on the Home Secretary. Indeed, that was an essential element of complying with the judgment in Chahal. However, what is now clause 4 of the Bill puts the question beyond doubt.
The detailed procedures for the new commission are not set out in the Bill. However, clause 5 describes some of the main areas that will be covered by the procedure rules made by the Lord Chancellor. Those rules will, in view of their importance, be subject to the affirmative resolution procedure of the House. A first draft of the rules was made available by the Lord Chancellor during the passage of the Bill in another place and it is intended that an updated version, which takes account of comments made so far, will be made available to the House before the Bill reaches Committee.
Clause 5 recognises the difficulties raised by the sensitive cases with which the commission is being created to deal. It specifically requires the Lord Chancellor, when making rules, to have regard to two equally important factors--the need to ensure that decisions that are the subject of appeals are properly reviewed, and the need to ensure that sensitive information is not disclosed contrary to the public interest. That is why the draft rules not only make it clear that an appellant will have the right to be legally represented in proceedings before the commission, but provide for possible restrictions on the need for full disclosure of the reasons for decisions to be given to the appellant. They also allow proceedings to take place in the absence of the appellant and his or her legal representative.
The Government accept that those provisions fall short of the normal demands of natural justice under the law, but they have introduced the provisions having taken account of the views expressed by the European Court of Human Rights in its judgment in Chahal and in other cases involving national security considerations. The court has explicitly acknowledged that, when national security issues are at stake, consideration will almost inevitably have to be given to confidential material and that, when that is the case, safeguards--such as the ones included in the Bill--may be essential. In such cases, the court has said that what is needed is a remedy that is "as effective as can be", given the threat to national security.
One important safeguard for the appellant will be provided by clause 6, which was inserted during the Bill's progress in another place. It expands on an idea that was in the Bill on its introduction--that the Attorney-General, or his equivalent in Scotland or Northern Ireland, should be able to appoint a person to represent the interests of the appellant in those parts of the proceedings from which he or she is excluded. That builds on an approach adopted by the Canadians, which was commended by the European court in its findings in Chahal. That person, whom we shall call the special advocate for the purpose of debate, will be a qualified lawyer and will be expected to help the commission to examine the security evidence. In particular, he will look at the evidence as if he were doing so on behalf of the appellant. There will not be the lawyer-client relationship, where the special advocate is required to disclose all information to the client. There will be a measure of confidentiality, which we think is necessary in cases involving national security.
| Next Section
| Index | Home Page |