| Previous Section | Index | Home Page |
7.30 pm
The purpose of our exercise was to ensure that the rights enjoyed by a person in such a situation were as near to being equivalent to those enjoyed by any other employee involved in any other activity as was reasonably possible, having paid due regard to national security. After the amendments on which we were not consulted had been made, we were extremely concerned to find that a provision had been included that enabled a Minister of the Crown to make a regulation to direct a tribunal to exclude an applicant from all or part of his own employment tribunal proceedings. I doubt whether anything could more obviously negate the purpose of making the improvement that we have suggested and which we thought the Government had accepted. That is why we have tabled amendment (a) to Lords amendment No. 323, which applies to the applicant, and amendment (b), which applies to his representative.
The Secretary of State rightly said that it was immediately acknowledged in the other place that that provision was unacceptable. Although I accept that Government amendment (c), which has been tabled today, fulfils the undertaking that was given in the other place, we believe that it does not entirely meet our concerns. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) may have something to add on that point.
Mr. Rogers:
I am sure that the right hon. Gentleman accepts that the provision was obviously included by mistake. The Government, Labour Members and the party which I represent are all in favour of trade union rights, and the very idea of preventing a person and his representative from putting his case in front of a tribunal would be complete anathema to every Labour Member. A drafting mistake has obviously been made.
Mr. King:
That is what we believe. Our inquiries suggest that the provision has been lifted straight from immigration tribunals legislation and transferred across, in toto and perhaps at some speed, to the Bill. I am grateful that, as soon as the matter was raised, it was recognised that that position could not be sustained, that a drafting error had been made and that further consideration was required. I hope that we can take the Government a step further so that they recognise that they should go all the way and accept our amendment.
In view of the Government's public statements and what I believe to be their genuine philosophy in respect of this matter, I should be amazed if they resisted our amendments. They deal with circumstances in which a Minister decides on national security grounds that he has to take quite exceptional steps that would normally be quite unacceptable, such as excluding somebody from part of his own industrial tribunal hearing without any review being undertaken by anybody thereafter.
The Secretary of State has said that such a person could have a judicial review--at his own expense, I imagine--but a chap who has lost his job and is complaining about unfair dismissal would find that he has been excluded from his own hearing or a major part of it. He would not hear any of the evidence against him and he would be able to challenge what he considers to be an unreasonable act only at his own expense. For those reasons, I said at the beginning of my remarks that I hope and believe that the right hon. Gentleman is the sort of Minister who will listen to arguments. I appreciate that this issue has been bounced on him and that it is not germane to the main purposes of the Bill, but he has to take responsibility for it.
The other problem--for which I do not apologise, because we did not create it--is that it is so late in the day that this is the last chance that anyone has to put things right. The Secretary of State may feel that he could be exposed to criticism, and the first person who might criticise him may be the Security Service Commissioner, Lord Justice Stuart-Smith. I am not sure whether it has been drawn to his attention that Lord Justice Stuart-Smith's most recent report said that something should be done about this matter. On the tribunal, he said:
We consulted Lord Justice Stuart-Smith yesterday about the amendment that we have suggested. He has responded and I have been authorised by him to say that, if the amendment is acceptable to Parliament, he is content to undertake the proposed review in addition to his existing duties under the Security Service Act 1989 and the Intelligence Services Act 1994. He makes a further point, which was also made by the Secretary of State. He understands that the proposed amendment relates to all Crown servants. If so that is so, he would feel unable to express any view on whether he would be able to deal with the volume of work or whether he would be qualified to do so.
The point about Crown servants has already been well made by the right hon. Member for Berwick-upon-Tweed in an intervention. As currently drafted, the proposals on the tribunal apply to the Secret Intelligence Service, the Security Service and Government communications headquarters, Cheltenham, but this problem could arise in respect of someone who was sacked from a position of Crown employment. People who work for the joint intelligence staff, on the assessment side and in the Cabinet Office dealing with national security matters are affected by national security considerations. This is the only opportunity that we have to help them and the Bill is the only relevant legislation before the House.
If such people feel that they have been unfairly sacked--the Secretary of State would be the first to defend them in such a situation--they are entitled to their rights and they are entitled to go to a tribunal. If they find that they are excluded from their own hearing on grounds of national security, is not it right that there should be some review of the Minister's authority? That is all we are asking. I shall answer Lord Justice Stuart-Smith's question: we know of only one such case. Does the Secretary of State know of any more?
The case of which I am aware has provided the substance for the amendment that we have tabled. I do not know of any others. If a huge number of people are being excluded from their normal rights on grounds of national security, a commissioner had better look at this issue and we need a full and proper safeguard. The Committee certainly wants the procedure regulations, to which the Secretary of State referred, to cover such eventualities and the way in which such matters should be handled. As a free man, if I may use that expression, the Secretary of State would be the first to fight for that and the first to say that Parliament should put such safeguards in place. That is what Parliament should be doing. It should be protecting the rights of people in such situations.
It would be wrong to leave this significant power with no question of being reviewed. Lord Justice Stuart-Smith asks whether our proposal is meant to be some sort of remedy. We have not taken it that far, but have said that one should at least provide the protection that exists: the commissioners are charged with reviewing how Ministers--the Home Secretary and the Foreign Secretary,
in the main--use the exceptional powers that override the normal law, which they are entitled to use to protect the national security. That protection is independent and distinguished. The commissioners review the exercise periodically and report to the Prime Minister on how those exceptional powers have been used.
Is not this proposal just such an exceptional power? If the amendments are rejected, the Secretary of State will leave Ministers with an exceptional power that will be subject to no review, except at the expense of the applicant by judicial review. In spelling that out, I do not seek to make a party political point. In a sense, I am embarrassed because I appreciate that this matter has been wished on the Minister--he did not ask to deal with it. However, the Intelligence and Security Committee debated it at considerable length and concluded that the objective was right and proper. We originally identified it some three years ago.
What we are debating tonight, late in this Session, and for the first time on the Floor of the House, are the arrangements to put a proper protection in place. I understand that it is a particularly difficult and awkward challenge for the Secretary of State, but I believe that he will able to rise to it and say that, in the current circumstances, he will not leave the matter unsettled and that the Government are prepared to put in place the necessary protections. The arguments that I have sought to make, and which other hon. Members may seek to make, are acceptable not just to me but to every member of my committee of all parties--senior Members of each party were represented on it--and to Lord Justice Stuart-Smith, so I fail to see why they should not be acceptable to the Secretary of State. The Committee would appreciate it if he could accept our proposals.
Mr. Chidgey:
In his opening remarks, the Secretary of State said that he intended to consult on the amendments. Having heard the speech by the right hon. Member for Bridgwater (Mr. King), who made an eloquent and powerful case for the amendments, the Secretary of State has an opportunity to consult and reflect on the foot, so to speak.
"In my earlier reports I drew attention to the unsatisfactory position regarding the Tribunal and their statutory position in relation to complaints from employees of the agencies who seek
21 Jul 1999 : Column 1254redress in relation to those matters which, but for security considerations, might have been dealt with by an Industrial Tribunal. I am disappointed that it has taken so long to find an effective remedy to this important problem but I am advised that the DTI, having consulted Ministers, are now working on a detailed proposal."
That was said by the very commissioner to whom we are seeking to entrust responsibility for review.
| Next Section
| Index | Home Page |