Draft Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002

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Mr. Stephen O'Brien (Eddisbury): My hon. Friend is expressing broad support for the provision, which I believe is consensual across the parties. I was equally interested and relieved to hear the Minister say that the senior judiciary had been consulted. The important point is that this will be a matter of process on questions of law that go to the Court of Appeal concerning the rights of persons to be present when the judicial process is affecting their liberties and interests. It would not be usual other than to see matters develop through case law, but would there be—

The Chairman: Order. The hon. Gentleman must come to the point quickly, rather than making a speech.

Mr. O'Brien: I am grateful for your guidance, Mr. Amess. I am aware that that was a long intervention.

Does my hon. Friend agree that it would be worth while to have ongoing consultations with the senior judiciary to discover how the system is working, rather than relying only on case law as it develops?

Mr. Cash: I certainly do. The question is which the proscribed organisations are at a given point in time and whether there are changes in policy. In Ireland, for example, various changes are taking place under the Belfast agreement. If changes were made in respect of terrorist organisations in this country, they would immediately come out of the requirements of the provisions once they ceased to be a proscribed organisation.

I very much agree that ongoing consultation is needed on all these matters, and that, to achieve the right balance, constant monitoring of the system will be required. As the Minister will know, we are firmly and emphatically against terrorists of all descriptions, but we are also firmly and emphatically in favour of ensuring that justice is not only done but seen to be

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done. The exclusion of persons from proceedings and the provision of special advocates would need to be used extremely sparingly.

Did any particular cases give rise to the arrangements that resulted in the rules? Have there been any recent House of Lords cases or any other relevant cases? I know that questions have arisen in the application of the law, but the Minister has provided a technical description, not a graphic one, of the circumstances in which the Court of Appeal might adopt the course proposed in the rules. I speak for my party as well as myself in saying that before we conclude our proceedings, we must hear more about the nature of the circumstances rather than a statement of them. In response to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), she mentioned three organisations, but will she amplify and provide more information?

I am extremely concerned about the exclusion of a party from proceedings, notwithstanding consultation with the Court of Appeal, its discretion and its decision in the particular circumstances. Excluding parties from participation in proceedings in delicate, important and difficult circumstances may well be justified, but I would prefer a more graphic description—though not information about particular individuals, which could be difficult to explain—of the circumstances in which the exclusions might take place.

I was intrigued to find that under the rules the Secretary of State is not included as one of the excluded parties. That goes without saying. Obviously, he has to take the decision, but from the perspective of anyone caught up in these circumstances, and perhaps at the receiving end of a miscarriage of justice, the fact that the Secretary of State is not included might be regarded as impinging on the rules of natural justice. We must be careful about that. I would like the Minister to illustrate the circumstances of operation more fully.

Mr. O'Brien: I shall endeavour to make this intervention rather shorter, Mr. Amess. Is my hon. Friend intending to elicit an assurance from the Minister that the usual process of seeking leave to appeal to the House of Lords in respect of a determination that a proscribed organisation does not have a right of representation at this stage of the appellate process will apply?

Mr. Cash: Indeed, and I hope that the Minister has taken note of that intervention. It is another matter that needs to be described more graphically. We are not here to create difficulties but to ask sensible questions in the context of issues that are more important than a simple adjustment of the rules. Serious miscarriages of justice have occurred in respect of several acts of terrorism and people have been put in jail for a long time. We are rightly concerned that in matters affecting the national interest, national security must be kept at the highest level, but we must remain alert to the possibility of something going wrong. No court is wholly incapable of arriving at the wrong decision. On matters of law, it is increasingly

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difficult and more remote to imagine that happening, but it is possible. I put down a marker there, which is our task and objective in such important matters.

I move on from national security to the different question of the international relations of the United Kingdom. Will the Minister advise us of the circumstances in which that issue might arise? The provision is pretty broad-brush and could mean many things. I acknowledge the context of the Terrorism Act 2000, but the Human Rights Act 1998 is also important. There is doubtless no mischievous intention here, but we are being deprived of a more graphic illustration of the circumstances of operation under those Acts. There has been much debate about that.

In the case of Regina v. Secretary of State for the Home Department ex parte Simms and O'Brien, which was brought after the 1998 Act, Lord Hoffmann said that the principle that one can amend the Act was definite, that it was clear and unambiguous. There are no exceptions. He added the rider that the Government would have to take account of the fact that if they amended the act they would, as he put it, bear the political cost, whatever that means.

Section 7 deals with whether a public authority has acted unlawfully under the provision. As we saw with the Anti-terrorism, Crime and Security Act 2001, we must bear it in mind that other important questions are likely to arise from the extradition Bill, which we have not yet seen. One is whether a person will be entitled to a retrial where there are doubts about whether they should have been tried in absentia under another country's jurisdiction. That sort of provision could easily be construed as being, and is likely to be, inconsistent with the Human Rights Act. The question could also arise whether a public authority had behaved unlawfully under section 7 of the Human Rights Act as referred to in the rules.

We are treading on eggshells all the way down the line on the issue. It is extremely important that we maintain our national security, and essential that we ensure that our international relations operate effectively. However, I am concerned about the breadth of the expression in rule 4(1):

    ''The court must secure that information is not disclosed contrary to . . . the international relations of the United Kingdom''.

We are owed an explanation of what that means, and the circumstances in which it is likely to arise. It is a broad-brush arrangement. We understand what is meant by national security, but ''international relations'' could apply to many things.

Mr. O'Brien: In the context of the UK's international relations, does my hon. Friend share my concern that, despite dealing with the Court of Appeal and the judicial process, the rules might enable a foreign country to make it clear to our Government that it thought it undesirable for an individual to be present in court, perhaps because of concern about what they might divulge under the privilege in court proceedings, and thus in a sense override the proper judicial process that we guard so jealously in this country?

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Mr. Cash: I can confirm that. I should be grateful if the Minister would pay some attention to this. We are not trying to be difficult, but these issues may be taken up by other organisations. I have no reason to believe it at present, but I would not be surprised if organisations such as Amnesty International had such concerns. I do not want to over-encourage them, but it concerns me, as shadow Attorney-General, and my hon. Friend the Member for Eddisbury (Mr. O'Brien): we who have an undoubted determination to eliminate terrorism and to defend the national security would not press these questions if we did not think that there was a substantial reason for ensuring that we properly understand how the rules are to operate.

On the detection and prevention of crime, ''crime'' is a pretty wide expression. I do not need to labour that point. I merely ask what kind of crime? The rules state:

    ''or in any other circumstances'',

applying the ejusdem generis rule,

    ''when disclosure is contrary to the public interest''.

Clearly, it is not carte blanche but it is a heavy duty to impose on the Court of Appeal. It is a difficult duty to discharge in view of the balancing act that has to be performed. An onerous responsibility is being placed on a court, albeit after the consultation process and presumably with its agreement.

The day may come when these matters will be discussed because the kind of issues dealt with under these rules are those that end up in the highest courts. Our proceedings will be looked at because people will want to know what Parliament intended and what the Minister said about how the rules would be applied.

I did not expect to take quite so long over my response to the Minister's perfectly reasonable opening remarks, but there is a heavy responsibility on all of us to ensure that we do not infringe the rules of natural justice, albeit it is necessary to be crystal clear to ensure that the public interest is served in the circumstances described in rule 4.

I have already mentioned rules 4(2) and (3) on the exclusion of parties. I should be grateful for an explanation. The explanatory notes state that the Terrorism Act 2000 gives the Secretary of State the power to proscribe an organisation if he believes that it is concerned with terrorism. Will the Minister give us instances in which the Secretary of State has contended in the past that an organisation is concerned with terrorism, whether international or domestic—because the Act rightly also applies to terrorism that has been imported from abroad or arises abroad?

The explanatory notes also state that a proscribed organisation or a person affected by the organisation's proscription may apply to the Secretary of State to remove the name of an organisation listed in schedule 2, and in those circumstances, if the Secretary of State refuses the application, an appeal may be made against that refusal to the Proscribed Organisations Appeal Commission, with the right for that party to bring a further appeal to the Court of Appeal on a question of

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law with the permission of the commission or the Court of Appeal.

There have been questions in respect of recent case law about the commission and its role in that context, and I wondered whether the rules had anything to do with the case in the House of Lords about eight weeks ago. My hon. Friend the Member for Eddisbury raised the matter of a further appeal to the House of Lords. Because, as paragraph 10 of the explanatory notes points out, it also applies in respect of section 7 of the Human Rights Act, I suppose that matters could thereby be referred to the European Court. That may not be the case, but I should be grateful if the Minister would consider that point.

The next question is whether there is any residual jurisdiction in the context of current treaties or any anticipated future proposals to convey the jurisdiction to the European Court. There is a potential conflict, or overlap, between the European Court in Luxembourg and the European Court of Human Rights in Strasbourg, and several potential appeal procedures may impinge on that.

There may simple answers to my questions and I should be grateful if the Minister would give some thought to them, because there should not be uncertainty about what would be the ultimate court of appeal. There are proposals for an international criminal court and I read recently that Henry Kissinger is being pursued by a Spanish judge in respect of matters alleged to have taken place. We remember the Pinochet case, too.

There must be a clear line of appeal so that when parties find themselves excluded, their representative, whether the special advocate or another, can be certain that they know the route map and can ensure that there is no miscarriage of justice.

I have the greatest confidence in the Court of Appeal, and there are superb judges in our legal system, but they are not infallible. In these delicate circumstances, bearing in mind national security, the vagueness of international relations, criminal detection and prevention and the other circumstances that I mentioned ejusdem generis in the public interest, it is essential that we know exactly what is prescribed under these rules. We would welcome any illustrations from the Minister of the circumstances that are likely to apply.

11.8 am

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Prepared 23 April 2002