Eighth Standing Committee on Delegated Legislation
Wednesday 26 March 2003
[Mr. Peter Atkinson in the Chair]
Draft Special Immigration Appeals Commission (Procedure) Rules 2003
The Parliamentary Secretary, Lord Chancellor's Department (Yvette Cooper): I beg to move,
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) Rules 2003.
Welcome to the Chair, Mr. Atkinson. I welcome the opportunity to discuss the rules, which were originally laid before the House on 18 March 2003. I draw Members' attention to the fact that the rules were withdrawn on 24 March and that a revised draft incorporating minor amendments was relaid. I have written to Members about that matter, enclosing a revised draft. The rules were relaid as a result of scrutiny of the draft by a legal adviser to the Joint Committee on Statutory Instruments, which brought to light a small number of errors. The relaid draft corrects those errors and also incorporates drafting improvements recommended by the legal adviser to the Joint Committee.
Mr. David Heath (Somerton and Frome): I am grateful to the Minister for drawing our attention to the point about the minor discrepancies. Were the draft rules as a whole sent out for consultation to anybody in particular, as part of the process of drawing up the final version?
Yvette Cooper: There is no statutory requirement to consult on the rules, which are outside the supervision of the Council on Tribunals, but a limited consultation was undertaken and a wide cross-section of interested parties were consulted, including human rights groups, lawyers and the judiciary.
The reason behind the rules is as follows. The Special Immigration Appeals Commission was created by the Special Immigration Appeals Commission Act 1997 to hear immigration and asylum appeals. An appeal is sent to the commission if it cannot be heard by an immigration adjudicator—in other words, if it cannot go through the normal appeals process—because the Secretary of State has certified that the decision being appealed against was taken on national security or other public interest grounds.
The commission's jurisdiction was extended following 11 September and the commencement of the Anti-terrorism, Crime and Security Act 2001, which extended the counter-terrorism measures that were already in place in the United Kingdom. Section 21 of the 2001 Act enables the Home Secretary to certify someone as a suspected international terrorist if he reasonably believes that that person's presence in the United Kingdom is a threat to national security and if he suspects that that person is a terrorist. That allows the individual to be detained, even when there is no imminent prospect of his being removed or
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departing from the United Kingdom. Section 25 of the Act provides a right of appeal to the commission against certification. If a certificate is upheld, section 26 requires the commission to conduct a review six months after the appeal has been determined, or, if no appeal is made, six months after the certificate has been issued. Reviews must be conducted every three months after that.
The commission's jurisdiction was further extended by the Nationality, Immigration and Asylum Act 2002 to include appeals against a decision by the Secretary of State to make an order depriving a person of British citizenship status. That is the backdrop against which the procedure rules need to operate.
The new rules are being introduced to serve four key functions. First, they set out the specific procedures to be followed for appeals against certification and reviews of certification under the 2001 Act. Secondly, they apply the procedures for appeals before the commission to those against decisions on deprivation of citizenship. Thirdly, they bring the previous rules more closely in line with procedures for appeals before the Immigration Appellate Authority and, fourthly, they streamline and clarify the procedures to be followed.
I want to comment in more detail on certain aspects and provisions of the new rules. They will replace the Special Immigration Appeals Commission (Procedure) Rules 1998, which are revoked by rule 55, and they set out the commission's general duty to ensure that information is not disclosed contrary to the public interest. Rule 7, which has been welcomed by many consultees, provides for service of the notice of appeal on the commission rather than on the Secretary of State.
Under SIAC's first area of jurisdiction, which covers immigration and asylum, the time limits for appealing against an immigration or asylum decision are now, under rule 8, five working days for people who have been detained, 10 working days for people who have not been detained—that is an increase from five days—and 28 days for people who are abroad. The change ensures that the time limits correspond with the new time limits for appeals to an immigration adjudicator in rules made under the 2002 Act. Therefore, the time limits are aligned, whichever appeal route is taken. In special circumstances, the commission may extend the time limits under rule 8(5) if it is satisfied that it would be unjust not to do so.
Under the second area of jurisdiction, which deals with certification of people as international terrorists, the new rules contain specific provisions for appeals in part 3 and for reviews in part 4, which will be considered under the 2001 Act. Under the third area of jurisdiction, which deals with citizenship, the rules introduce clear, proper procedures for independent appeals.
Part 7 contains general provisions that apply to proceedings before the commission and includes rules that govern the procedures to be followed by special advocates. A special advocate is appointed by a Law Officer under section 6(1) of the 1997 Act to represent the interest of an appellant in any proceedings before
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the commission from which the appellant and his legal representative are excluded. They may be excluded if the commission considers it necessary to ensure that information is not disclosed contrary to the public interest.
The new rules clarify the role of the special advocate and prohibit the Secretary of State from relying on material that has not been disclosed to an appellant for whom a special advocate has not been appointed. The rules further detail when an appellant and a special advocate can communicate. The appellant may continue to contact the special advocate through his representative after the Secretary of State has disclosed material to the special advocate, but the special advocate may contact the appellant only in accordance with directions of the commission.
The procedure rules have been introduced to cover several areas, all of which relate to the extremely important work of SIAC. I ask the Committee to approve them.
Mr. Nick Hawkins (Surrey Heath): I welcome you to the chairmanship of our proceedings, Mr. Atkinson.
As the Minister said, the new rules are important and, like the hon. Member for Somerton and Frome (Mr. Heath), I am very grateful to her for writing to us to explain the minor changes that were made after the original draft was laid. However, I shall not forbear from commenting that it seems somewhat surprising that a formal draft on something as important as the Special Immigration Appeals Commission, which deals with terrorist matters, was laid before Parliament only for errors to be found afterwards, making it necessary to withdraw the original draft and implement another. Although I am grateful that we have something more accurate, I hope that the Minister gives an undertaking that, especially in this significant area of anti-terrorism provisions, there will be careful checking before drafts are laid before Parliament.
I have looked through the new draft rules in the light of the various debates in the House on the Anti-terrorism, Crime and Security Bill, which was passed in a few days in November 2001. There were a lot of serious discussions on the role of SIAC, including those involving the Home Secretary, my right hon. Friend the Member for West Dorset (Mr. Letwin), who is shadow Home Secretary, various Liberal Democrats and the hon. and learned Member for Medway (Mr. Marshall-Andrews), who had particular concerns. An especially important debate can be found at column 372 of Hansard for 21 November. Despite the concerns that were raised, it is fair to say that the Conservatives do not have a problem with SIAC or how it operates, although I have a few brief questions for the Minister.
On reading the rules, a couple of issues struck me as important. The Minister referred to rule 37, which relates to closed material. The provision states:
''The Secretary of State may not rely upon closed material unless a special advocate has been appointed to represent the interests of the appellant.''
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Does the Minister anticipate a situation in which a special advocate would not be appointed? We are discussing difficult circumstances, and I would have thought that a special advocate should be appointed whenever the Secretary of State is likely to examine closed material. Will she clarify that point? It does no harm to have such a statement explicitly in the rules, but it would seem unusual for them to anticipate a situation in which a special advocate would not be appointed.
Rule 16 says:
''If the Secretary of State intends to oppose an appeal, he must as soon as practicable file with the Commission a statement of the evidence upon which he relies in opposition to the appeal.''
What is the Minister's interpretation of ''as soon as practicable''? One is more used to rules setting a specific time limit, such as ''within 24 or 48 hours'' or ''within seven days'', and we are aware that the people who may pose a danger to this country will always employ lawyers to find loopholes in the legislation. We must be sure that the rules are explicit and leave no gaps, so it might have been wiser to define a specific time limit. Even if the Minister does not say that there are plans to include a specific time limit in proposed rule 16, will she define ''as soon as practicable'' so that it is recorded in Hansard?
Having said that, the Conservatives do not oppose the rules, and we hope that SIAC continues to work well.