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

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Ms Winterton: Many wide issues have been raised, and if I do not address them all, I will be happy to write to hon. Members very quickly on any of the others.

We must be clear that the rules are part of a process that gives organisations the ability to appeal against proscription for the first time. I take on board what the hon. Member for Stone has said, but under his party's legislation that appeal was not available. The rules make an appeal available to not only the organisations that were previously proscribed under Irish legislation but others as well. The rules should be welcomed in terms of the issues that have been raised on human rights.

Hon. Members have asked for information on a variety of issues, and particularly the proceedings involving the three organisations that have appealed against proscription. I hope that people will accept that it is not possible in the present circumstances, while the proceedings are under way, to give detailed information about those organisations. I also hope that they will accept that, when dealing with matters of national security, there is always a balance to be found between what can be disclosed and what we must do to protect the interests of the country.

Anyone can take a case to the European Court of Human Rights. The provisions about the special advocate were inserted to give the legislation human rights compliance. Again, let me reiterate that exclusion of parties from proceedings occurs if information will be disclosed that could prejudice national security or other issues that are set out. The courts will decide whether it is necessary to exclude representatives. They do not always have to, but they have the right to do so if they feel that it is necessary.

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That can work the other way around, too. If a court feels that it needs to examine information that may have been given to the Secretary of State to decide whether it upholds the original decision, it is important that the court has access to it. However, it would be difficult to put that in the hands of people who, perhaps, have not been properly vetted.

Mr. Cash: Rule 4 says:

    ''The court must secure that information is not disclosed contrary to the interests of national security . . . or in any other circumstances''.

We have dealt with that. However, the question whether information is contrary to the interests of national security is a test that has to be applied on the basis of information that is supplied. Obviously, the Secretary of State is not excluded from the proceedings. Is the court under an obligation to accept the statement made by the Secretary of State in the proceedings that, as a matter of fact, there is a question of a matter being in the interests of national security, though it may not necessarily be a matter of law?

As the proceedings will be held pretty much in secret, I am just trying to establish exactly what will happen behind the scenes. If the Secretary of State makes a statement that, in his opinion, the matter is one of national security, is the court obliged, under the rule, to follow and accept it without further argument?

Ms Winterton: No, the court is not under an obligation to accept the Secretary of State's statement, but one would hope that it would be taken into account. The court is not under an obligation to say that, in its opinion, the case undermines national security. The whole idea of the appeal is to provide the ability to challenge the decision in the first place, so of course there is that right.

Mr. Cash: I do not want to pursue the point further and further just for the sake of it—this is important as a matter of principle. Under the Rehman case, it was clearly stated that it was the function of the Secretary of State to make decisions on what were or were not questions of national security. Is there symmetry between that case and what we are discussing under the rules?

I am not trying to trip the Minister up. As I said initially, I am concerned about getting the route map right, and no doubt these things can be explained. If for any reason she cannot provide a precise description now, I should be grateful if she would write to me, so that we can get that map right. If, in the analysis of our proceedings, her advisers think that any matters should be clarified, I would be grateful to receive a letter.

Ms Winterton: My recollection of the Rehman case is that the Special Immigration Appeals Commission felt that the Secretary of State had made a decision that identified a particular person as likely to be a threat to national security. However, I understand that the Court of Appeal upheld the Secretary of State's view and the interpretation that he had placed on the threat that that individual posed to national security. The case then went to the House of Lords, which upheld the Court of Appeal's view. If I can add

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anything useful to that, I will certainly write to the hon. Gentleman.

Mr. Stephen O'Brien: In supporting my hon. Friend the Member for Stone, I shall be sympathetic to the Minister in agreeing that we should not over-analyse a House of Lords case. With the greatest of respect to the Minister, highly eminent lawyers have no doubt studied that case for years on end. The key issue is that, as my hon. Friend hinted, the rules appear to enshrine and almost guarantee a judicial review by the Court of Appeal of any decision and recommendation made by the Secretary of State, so that it has to review the recommendation and decide whether it agrees about the ground of national security. It has been our understanding, however, that that is an Executive decision, which is presented as a matter of fact to the Court of Appeal. It would be wrong to analyse that in depth and press the Minister for an answer now, but that is the sort of issue on which we are looking for a written response to reassure us.

Ms Winterton: I will write to the hon. Gentleman if I have anything to add, but we must bear it in mind that any case would go to the Court of Appeal on a point of law.

A number of organisations were added to the proscribed list last March. The hon. Member for Stone asked about international relations. The reference to

    ''international relations of the United Kingdom''

was included to protect any sources from abroad who may be implicated in evidence that is given to the Secretary of State in deciding whether an organisation should be proscribed.

The arrangements to exclude parties from proceedings in the Terrorism Act obviously reflect the arrangements in other legislation. We earlier referred to the Special Immigration Appeals Commission. I should emphasise that what we are discussing is not only about protecting national security, but about ensuring that we are human-rights compliant. That is why the appointment of the special advocate is made—to ensure that any excluded parties are represented at the appropriate time.

The hon. Member for Southwark, North and Bermondsey asked about the people appointed as special advocates and the way in which those appointments are arrived at. I tried to explain earlier that the Attorney-General appoints the special advocates. Obviously, they have to have certain special qualifications, which are set out in the Act, and they must be properly vetted.

As far as I am aware—I shall write to the hon. Gentleman if this is not the case—the organisations for which special advocates have been appointed have not objected to them. As I said earlier, however, any representations that an organisation made once it was informed of who its special advocate was would be taken into account. A decision would then be made on the representations made. Earlier I gave the example that that might happen if it was considered that there could be a conflict of interest. Organisations certainly have the right to make objections, but so far as I am aware, none has so far objected. I shall clarify that further if necessary. The special advocates are people

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considered to have a particular interest in the relevant field.

Simon Hughes: May I assume—or suggest—that when a name is given to an organisation, it is given a chance to object, within a time limit, and that if it does so, there is then a clear process to decide whether an alternative can be nominated? I hope that the Minister will tell us in a second that there is no intention at all to exclude the right to be represented. I asked about that before, because it is ambiguous in the rules as drafted.

Ms Winterton: When an organisation is excluded, a special advocate will be appointed.

On the issue that the hon. Gentleman raised about an organisation's ability to object, when the Attorney-General has appointed a special advocate, the legal secretariat will write to the appellant or the appellant's representative to tell them who has been nominated and ask whether there is any objection. As I said before, so far, no one has objected but, were anyone to do so, a different special advocate could be appointed, depending on the reasons for the objection. An objection could be made on the ground of a conflict of interest, for example. I hope that that places on record, to the hon. Gentleman's satisfaction, the process that will be gone through.

The commission is expected to sit in England, and it is therefore not considered necessary to have separate rules for Scotland and Northern Ireland. Other issues raised include whether it is possible to appeal to the House of Lords. Obviously it is. Indeed, we discussed a case heard by the Special Immigration Appeals Commission that ended up in the House of Lords.

The hon. Gentleman asked whether any Irish organisations have applied for de-proscription. The answer is no. Under the Special Immigration Appeals Commission regulations, a special advocate is appointed. I hope that that answers most of the points that have been made.

Mr. Stephen O'Brien: I do not want to correct the Minister, but perhaps she wants to reflect on my earlier point about whether the Court of Appeal and judiciary will continue consultation to find out how the process works. As my hon. Friend the Member for Stone and the hon. Member for Southwark, North and Bermondsey said, this is delicate territory that needs to be handled with sensitivity to ensure that a balance is struck between national security and individual rights and freedoms in a democratic country. I hope that that consultation will take place. Perhaps in her final remarks the Minister was going to touch on the definition of international relations in that context, which concerned several of us.

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Prepared 23 April 2002