Draft Pathogens Access Appeal Commission (Procedure) and Draft Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002

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Mr. Heath: I am grateful to the Minister for attempting to explain that, but I do not find her explanation convincing. Is she saying that different determinants and different material will be adduced on appeal from that which goes before the commission? That would seem to be a novel procedure.

Ms Winterton: No, I was not saying that. I was saying that the same phraseology has been used in these rules as in the POAC rules because it was felt important to highlight that issue—especially because of the international situation and the implications for international security—but not that different evidence would be used. As I said before, the Court of Appeal will consider points of law, as opposed to previous disclosures.

Mr. Cash: This could become an extremely protracted discussion, but I shall not be tempted down that route. As the hon. Member for Somerton and Frome has said, one of the orders deals with the appeal. If the question of international relations will go before the Court of Appeal, and if the Court of

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Appeal is confined to questions of law, that means that questions of law in relation to international relations will be raised only on the second leg. It is extremely difficult to understand exactly why those matters should be excluded from the first leg. I suspect that we will go round and round in circles on that issue, which is why I think that the hon. Member for Somerton and Frome is right in suggesting that these matters should be kept under review.

Ms Winterton: The rules will not extent to Scotland and Northern Ireland, and the Court of Appeal has jurisdiction only in England and Wales. Schedule 6 to the Act provides that the commission may sit

    ''at times and in such places as the Lord Chancellor may direct.''

The expectation is that it will sit in England, so it is not necessary to extend the rules to the Court of Session and to the Court of Appeal in Northern Ireland. Hon. Members will recall that the issue was raised in the previous debate.

Mr. Cash: I am quite surprised by that remark. For the reasons that we have given, it is quite extraordinary that we should exclude equivalent rules in Northern Ireland and Scotland, and I think that the hon. Member for Somerton and Frome agrees. There may be sound reasons for doing so, and the Minister has mentioned judicial systems, devolved government and reserved matters. Surely, such sensitive matters cannot give rise to appeals to the Court of Appeal in England and Wales, when appeals will be excluded in Northern Ireland and Scotland, which will have no equivalent system. Or have I misunderstood what the Minister said?

Ms Winterton: The hon. Gentleman has misunderstood what I said. The Commission will sit in England, and the appeal will therefore always be made to the Court of Appeal. The commission will not sit in Scotland or Northern Ireland, because it sits where the Lord Chancellor directs it to sit. It is not that an appeal would not be allowed if it sat in Scotland; the point is that the commission is expected to sit in the English jurisdiction.

The issue of special advocates was discussed at some length in the previous debate on POAC. I made it clear at the time that appellants who were not satisfied that the special advocate was an appropriate person to represent them could make representations to that effect, which would be listened to. Under the POAC rules, organisations have the right to make objections, and individuals may do so under the present rules. As yet, however, there have been no objections under the POAC procedures to the appointment of a particular special advocate. Special advocates are people of the appropriate vetting standard, who are experienced in such matters.

Mr. Cash: I am terribly sorry to have to mention this, but section 70 of the Act refers to arrangements in which the special advocate will be somewhat engaged. It clearly states:

    ''A party to any appeal under this section which the commission has determined may bring a further appeal on a question of law to—

    (a) the Court of Appeal, if the first appeal was heard in England and Wales;

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    (b) the Court of Session, if the first appeal was heard in Scotland; or

    (c) the Court of Appeal in Northern Ireland, if the first appeal was heard in Northern Ireland.''

The Act therefore provides for equivalent systems to be set up, so why are we not told that there will be equivalent arrangements in Northern Ireland and Scotland? Given the nature of the United Kingdom framework, and the danger of these pathogens, should we not ensure that we have a consistent system? I suspect that the answer is that the Minister should write to me.

Ms Winterton: No, the answer is not that the Minister should write to the hon. Gentleman, but that the commission sits where the Lord Chancellor directs it to sit and it will sit in England. If the Lord Chancellor were to direct the commission to sit in Scotland or Northern Ireland, appropriate rules would have to be drawn up to cover that, but the Lord Chancellor establishes where the commission will sit; if it sits in England, the court rules need to be from England. The hon. Gentleman will understand that there is a lot of sense in that. There will probably be very few cases and this course of action would be suited to the building up of casework, if it were necessary.

Mr. Heath: Am I right in thinking that the absence of any rules of procedure for the Court of Session or the Court of Appeal in Northern Ireland requires the Lord Chancellor to direct the commission to sit only in England, notwithstanding the terms of the original legislation?

Ms Winterton: As I have said, if the Lord Chancellor were to direct that the commission should sit elsewhere, different rules would have to be made. We do not envisage that the commission will deal with enormous numbers of cases. It is therefore appropriate for it to sit in England.

The hon. Members for Somerton and Frome and for Stone raised the question of reviewing the rules. We have no plans to review the rules and we do not think that they would fall within the scope of the review to be conducted under section 122 of the Anti-terrorism, Crime and Security Act 2002. However, it would become obvious if the system were not working correctly and needed to be reviewed.

The hon. Member for Somerton and Frome also raised the issue of the employability of an individual. Our approach to the matter is designed to give an individual the right to challenge any decision, so we consider such protection to be provided within the framework.

The hon. Member for Stone, if I recall correctly, also raised the issue of evidence that could be used by the commission but would not apply ordinarily. I hope that the Committee understands that where consideration is being given to issues such as national security, the commission will sometimes have to take into account hearsay that would not be admissible in other situations. That will be part of the way in which information is put together for the

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Secretary of State to decide whether an individual poses a problem in terms of working in this difficult area. That is why that statement is made.

I hope that I have reassured hon. Members that we are trying to initiate an approach and establish the permission and the ability to take an appeal to the Court of Appeal. We want to give the individual the right of appeal to challenge the Secretary of State's decision in unusual and difficult circumstances. I am grateful for the support that hon. Members have given in that matter.

If further information is needed on any issue, I shall be happy to write to hon. Members. However, I hope that they give support to the rules, which I commend to the Committee.

Mr. Cash: If the rules had been introduced seven years ago and were based on some time previous to 11 September, organisations that involve themselves in questions of liberty and justice would have shown greater interest and there might have been an outcry. It is a measure of the seriousness with which the public at large has received the events of 11 September and its aftermath that the orders have been treated in a much lower key than they might once have been.

None the less, I am worried to hear the Minister say that there is no provision for a review if the measures do not work properly. The Council on Tribunals, or a body of that kind, may be able to consider the rules. A Select Committee might examine how they worked in practice to ensure that everything was right; that process might involve the Joint Committee on Human Rights.

Yesterday, in a sitting of the European Scrutiny Committee, we discussed with Lord Filkin the attitude of the Government on the balance between national security and human rights. We had an interesting session on that subject. The Government clearly suggested that, although they were not prepared to admit that they were going to diminish human rights, the assumption that human rights should prevail over every other consideration was put in the balance.

In respect of the orders, other questions relating to the rules of judicial review, natural justice and so on are also being put in the balance after having regard to the nature of the threat. The balance should serve the interests of the public at large and national and international security. I am glad to note that although there are many Labour Members in the Room, they are not disposed to express reservations about some elements of the proposals. It has fallen to Opposition Members to raise questions about natural justice and judicial review. We have not asked trivial or unimportant questions; our questions have been important.

We shall not oppose the order, but there remain some unresolved questions. Time will tell, but a review may be the best way of dealing with the matter.

Question put and agreed to.


    That the Committee has considered the draft Pathogens Access Appeal Commission (Procedure) Rules 2002.

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Draft Court of Appeal (Appeals from Pathogens Access Appeal Commission )

Rules 2002


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    That the Committee has considered the draft Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002.

Committee rose at five minutes to Six o'clock.

The following Members attended the Committee:
Griffiths, Mr. Win (Chairman)
Abbott, Ms
Best, Mr.
Borrow, Mr.
Brennan, Kevin
Cash, Mr.
Farrelly, Paul
Heath, Mr.
Kemp, Mr.
Marsden, Mr. Gordon
Picking, Anne
Savidge, Mr.
Tredinnick, Mr.
Winterton, Ms Rosie

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Prepared 4 July 2002