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Session 2000-01
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Delegated Legislation Committee Debates

Draft Proscribed Organisations Appeal Commission and the Draft Legal Aid and Assistance

Fifth Standing Committee on Delegated Legislation

Wednesday 17 January 2001

[Mr. Andrew Welsh in the Chair]

Draft Proscribed Organisations Appeal Commission (Procedure) Rules 2001

4.30 pm

The Parliamentary Secretary of State, Lord Chancellor's Department (Jane Kennedy): I beg to move,

    That the Committee has considered the draft Proscribed Organisations Appeal Commission (Procedure) Rules 2001.

It is a pleasure to be here under your chairmanship, Mr. Welsh, to discuss what I gather from informal comments from Opposition Members is the smaller of the two matters before us. It may help the Committee if I describe the background to the rules and the reason for our debate.

The Terrorism Act 2000 received Royal Assent on 20 July 2000. My right hon. Friend the Home Secretary is working towards bringing the Act into force on 19 February. It will deliver permanent United Kingdom-wide legislation instead of the current separate and temporary legislation for Northern Ireland and Great Britain. We need effective legislation that is proportionate to any threat faced by the United Kingdom from all forms of terrorism.

Part II of the 2000 Act provides a power for the Secretary of State to proscribe organisations concerned in terrorism and includes specific offences related to the activities of a proscribed organisation. The proscription regime established by the Act differs from the current provision. In particular, the Act will not be specific to Northern Ireland or Great Britain, but will apply throughout the United Kingdom. In addition, it will make it possible to proscribe organisations that are involved in international or domestic terrorism, not just those involved in terrorism connected with the affairs of Northern Ireland.

For the first time, the Act will enable a proscribed organisation, or any person affected by proscription of an organisation, to apply to the Secretary of State for de-proscription at any time. If that application is refused, the Act provides for an appeal to a new independent tribunal, the Proscribed Organisations Appeal Commission. Under section 5(3) of the Act, the commission will consider any refusal to de-proscribe in the light of judicial review principles. Provision is also made for further appeal from a decision of the commission on a question of law.

The Government are confident that those arrangements are sufficient to ensure that an effective remedy is available to those concerned. The provisions in the rules are compatible with convention rights. Schedule 3 provides for the establishment of a commission comprised of members, including a chairman appointed by the Lord Chancellor. At each sitting of the commission, it will comprise of three members, one of whom holds or has held high judicial office. The draft rules governing the commission's procedures are the subject of our debate this afternoon.

I draw the Committee's attention to several provisions. Organisations or individuals will have 42 days within which to serve notice of an appeal on the commission. That deadline takes account of the fact that a proscribed organisation may be based overseas. However, in specific circumstances, the commission may accept a notice of appeal after the due date, and those circumstances are prescribed.

The commission shall designate a person to conduct proceedings on behalf of an organisation making the appeal. Where the commission considers it necessary, appeals may be heard in the absence of the appellant and his representative. In the main, that will be necessary in cases where the Secretary of State has objected to disclosure of certain material to the appellant. In such cases, the Attorney-General will appoint a special advocate to represent the interests of the appellant. That will protect the rights of the appellant without compromising any sensitive information that might form part of the Secretary of State's opposition to the appeal.

The special advocate represents the interests of the appellant in various ways: by making submissions to the commission in any proceedings from which the appellant, or his representative, are excluded; by cross-examining witnesses in any such proceedings; by making submissions to the commission in any part of the proceedings from which, at the commission's invitation, the appellant and his representative are not excluded; and by making written submissions to the commission.

Where the same question of law or fact arises, or where it is otherwise desirable, the commission has the power to consolidate, or hear together, two or more appeals. That will prevent those who are affected by the Secretary of State's decision to proscribe an organisation from mounting a number of separate, but essentially similar appeals at the same time.

Mr. Nick Hawkins (Surrey Heath): I am grateful to the Minister for giving way before concluding her opening remarks, because my intervening now might enable her to consider one particular matter. It might help Committee members—it would certainly help me—if the Minister could say whether any organisations have been proscribed under the powers of the new legislation. In considering the way in which appeals might operate, it would be helpful to know what use has so far been made of the Terrorism Act 2000 powers.

Jane Kennedy: I do not intend to speak for much longer, but I shall take this opportunity to deal with the hon. Gentleman's question, which is a fair one. The simple answer is that decisions have yet to be taken on which organisations will be put on the proscribed list. They will be taken shortly, and in the light of the relevant circumstances of the time. On that point, I invite the Committee to consider the rules and approve them.

4.37 pm

Mr. Hawkins: I join the Minister, Mr. Welsh, in welcoming you to the Chair of what I think will be fairly brief proceedings.

The Opposition are content that there should be an appeal commission, along with rules of the type that the Government are setting out. However, I want to raise one or two specific issues that go beyond my intervention. I should record my surprise at hearing from the Minister that legislation has been in place since 20 July 2000, but that no organisation has as yet been proscribed. Given the diverse terrorist threats that law-abiding people sadly face, the Government perhaps ought to consider the matter with rather more urgency. Many of us will have views about organisations that have carried out the most appalling terrorist atrocities, and which might appropriately appear on a proscribed list.

I hope that the Minister will reassure us that the Government urgently consider including such organisations on a proscribed list. There is little point in a UK-wide Terrorism Act permanently establishing such powers unless they are going to be used. Setting in place the arrangements for appeals is all very well, and of course one wants to safeguard legal rights and allow people to put the case for de-proscription; but appeals will never arise unless the original powers are used. I hope that the Minister will consider that point with her ministerial colleagues.

I wish to record the official Opposition's concern about cost. The Minister states that the new procedures are compliant with the Government's obligations under the Human Rights Act 1998. We have repeatedly made clear our concern that the Government woefully underestimated the huge additional costs that would flow from implementation of that Act. Although its principles are accepted on both sides of the House, there is the huge burden of extra cost. As each week goes by, we read further examples of how the cost to the public purse has increased through the Act's wholly unexpected implications. The existence of an appeals commission implies further costs arising from the appeal mechanisms.

In dealing with terrorism, we must take great care to ensure that everyone's legal rights are safeguarded. When the appeals commission comes into force, I hope that the law-abiding public will find that their interests are looked after, rather than those of the terrorist. There is a feeling among many law-abiding people that the odds have been stacked in favour of the terrorist. Sadly, examples of that have become legion. Although one recognises that there must be legal safeguards to ensure that everyone is fairly represented, the purpose of legislation should be to protect the law-abiding and come down hard on the terrorist.

We do not have a problem with the appeal commission, as long as it operates in practice in the way that the Minister has set out. Our misgiving would arise if it were seen to be operating in such a way that terrorist organisations, and their members, appeared to gain legal advantages that were denied to the victims of their outrages.

4.42 pm

Mr. John Burnett (Torridge and West Devon): I, too, welcome you, Mr. Welsh. I have had the good fortune to serve under your chairmanship on a number of occasions.

The House should be concerned when it makes regulations of this nature. The defence of the rights and liberties of individuals is of utmost importance to all hon. Members, and any curtailment of those rights and liberties deserves the greatest scrutiny. However, the state must protect itself.

I should be grateful if the Minister could let me have a little more information about the commission. She has made it clear that the Lord Chancellor will appoint the chairman. Who will appoint its other members, and what are their terms of appointment—its duration and their qualifications? As the Lord Chancellor appoints the chairman, presumably the commission is answerable to him. I would like to discuss the appeal mechanisms. I understand from the Minister that the Attorney-General appoints the special advocate. Members of the Committee need to know the qualifications and stature of the person who is likely to be appointed. For example, will he or she have to be an independent member of the Bar or another part of the legal profession? I hope that it is unlikely that anyone from the proposed criminal defence service, or any sort of in-house counsel, will be appointed.

Will the Minister explain what happens when the Attorney-General has chosen the special advocate? Can his choice be challenged or appealed under the Human Rights Act 1998? I hope that the Minister can respond to those points. They are important, because Members of Parliament must be vigilant when people's rights are being curtailed. Finally, do the Government intend to review the statutory instrument in a year or two?


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