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7.45 pm
Mr. Beith: The Committee chairman described extremely comprehensively why we tabled the amendments. If there are deficiencies in the drafting of amendments (a), (b), (d) and (e), they are entirely my fault because I was given the job of drafting them. However,
they are better drafted than the clause to which they were attached, which produced an unimaginable situation in which the object of this entire exercise--an employee of one of the agencies who has hitherto been denied an industrial tribunal when dismissed--would be refused admission to that very tribunal when it is granted.
The Committee, which has a fair amount of experience of security and intelligence matters, could not envisage circumstances in which it would be appropriate or necessary to exclude the applicant from every part of the proceedings. We scratched our heads, but could not think of any. We asked the agencies, and they could think of no circumstances either. Such a provision has not even been sought by the agencies in question; it was simply bad drafting in the first place.
The Minister has responded to that. When my noble Friend Lord Razzall moved an amendment in the other place, the Minister gave the undertaking that he is fulfilling in his amendment (c). Although that amendment is welcome because it goes 50 or 60 per cent. of the way towards what we want, much remains to be done. All that that amendment guarantees is that the applicant will be able to state his case before being thrown out. He will not be able to hear or challenge any of the evidence on which his dismissal is based, or even to know what that evidence is.
I can envisage circumstances in which it will be necessary for the applicant and his representative to be excluded from part of the proceedings. I am sure that other Committee members can envisage them, too. For example, an applicant might then gain access to further information, which he might subsequently misuse as a result of his grievance against the agency. A case might require the presentation of some evidence of that kind. However, excluding an applicant simply from making his case is such a restriction on his rights that there should be a very high threshold to be crossed before that power can be used. A strong protection should be built in, as well as a review of how the power has been used.
We tabled our original amendment because regulations could not have provided those protections so long as the statute made it clear that the Secretary of State was entitled to exclude the person from the entire proceedings. It was necessary to change the basic clause for the regulations to be manageable at all.
I think that we can make some progress on this point tonight. The regulations could build in thresholds and protections. I thank the Minister for his assurance that the Committee will be consulted on the detail of the regulations. The remainder of our argument--some 40 per cent.--could be met now if the regulations set a high threshold, which would have to be met before the power could be invoked. We all remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense. That is why we tabled the other two amendments.
The arguments that the Minister has made simply hold no water. He did not invent them--they have been provided for him. There is no flood of cases; there have hardly been any cases of this kind--none whatever in the category that he thinks represents an inconvenient addition to the total, which is people not in the agencies but in respect of whom a similar power might be used in the future. A commissioner review is appropriate because
the applicant cannot know why the power has been used. The Minister rested his case on the argument that the commissioners review matters that are otherwise secret. The reasons for using the power are secret. The applicant cannot know the nature of the evidence that requires him to be thrown out of the tribunal.
Somebody else must look at the matter. It is not sufficient to leave it to the tribunal, which does not have the power to bring the applicant back in--that is in the hands of the Minister. Somebody must have the power to report to the public that the power is being abused, and the commissioner is ideal for that purpose. That discipline would largely ensure that the power was not abused. I therefore strongly support what the right hon. Member for Bridgwater (Mr. King) said and ask the Minister to think again, even at this late stage.
At the beginning of the Bill, there is a certificate of compliance with the European convention on human rights. After this clause was drafted and introduced in the other place, was it checked to establish whether the Bill still complies with the convention, given the restriction on the rights of the applicant that will result unless we carry some of the amendments?
Yvette Cooper (Pontefract and Castleford):
I shall be brief, as I had not intended to speak. I want to respond to my right hon. Friend the Secretary of State's objections to the amendments tabled on behalf of the Intelligence and Security Committee. He argues that there should be access to judicial review rather than to the commissioner, and that amendments (d) and (e) would significantly extend the powers of the commissioner.
Judicial review is not sufficient in the absence of the commissioner. Our argument is that all these cases should be reviewed by the commissioner, not only those in which the applicant has the confidence or the resources to take the case to judicial review. Given that the applicant will be excluded from the proceedings, he will be in a difficult position to know whether he has a case to take to judicial review, whereas the commissioner could examine all these matters without putting the applicant's resources at stake.
The second objection is that the amendments would significantly extend the powers of the commissioner. I do not see that as a problem. The only way in which they would extend the commissioner's powers would be in parallel with the extension of the Minister's powers under the Lords amendment, which gives the Minister the power to make a decision to exclude someone from the industrial tribunal in the first place. Under our amendments, the commissioner would be used in parallel with the additional powers given to the Minister on grounds of national security.
Mr. Byers:
I am pleased that our approach on amendments (a) and (b) and our amendment (c) go 60 per cent. of the way towards meeting the concerns expressed by members of the Intelligence and Security Committee. I hope that, when we consult on the details of the regulation, we can get 100 per cent. satisfaction. That is almost impossible to achieve, but we shall try. We all want to achieve the principle that was articulated so well by the right hon. Member for Bridgwater (Mr. King).
However, a balance needs to be struck between the rights of the individual and the need to protect national security. We are clawing our way through consideration of how to achieve that balance. As I have discovered in the past 24 hours, these are complex areas, and we should take a careful approach.
I should like to discuss the regulations with members of the Committee, and I hope that that will go some way towards satisfying their concerns in amendments (a)and (b). The right hon. Member for Berwick-upon-Tweed (Mr. Beith) had difficulty finding the relevant Act in relation to the amendments that have been tabled. The Industrial Tribunals Act 1996 had its name changed by the Employment Rights (Dispute Resolution) Act 1998. I am sure that he was fully aware of that, and of course I knew that all the time. I do not know why these difficulties are put in our way, but parliamentary counsel enjoy the little tricks that they play on us from time to time.
As to amendments (d) and (e), the key point is that I have not been able to meet the concerns expressed by members of the committee on both sides of the House. In the end, it will be a matter of judgment. My view is that we have a well-established procedure by way of judicial review to challenge a decision taken by a Minister of the Crown. It is now a fairly common occurrence to have a judicial review of decisions taken by Secretaries of State and by Ministers.
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