Draft Special Immigration Appeals Commission (Procedure) Rules 2003

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Mr. Heath: It is a matter of record that the Liberal Democrats have serious concerns about the expansion of the Special Immigration Appeals Commission to cover new areas of work. We are effectively inventing a new administrative court through the various pieces of legislation that have been introduced in recent years, far exceeding the usual powers of a tribunal. It is right that we give the rules on procedure careful consideration in this Committee and from now on.

I am grateful to the Minister for telling me that there had been a consultation process; I was concerned because the matter would benefit greatly from the views of those outside the House. Did she consider canvassing the views of those within the Palace of Westminster who have a special interest in these matters, especially the Joint Committee on Human Rights, the Select Committee on Home Affairs and the newly established Select Committee on the Lord Chancellor's Department? A process of investigation and consideration might have amplified concerns that would otherwise be expressed elsewhere.

We have some general anxieties that are not really the province of these rules but are the basis on which the rules were developed. We have problems with the definition of terrorism under the Terrorism Act 2000—I shall not repeat the arguments we advanced before the measure was enacted—and serious concerns about the extension of the role of SIAC under the Anti-terrorism, Crime and Security Act 2001. Our clear preference is for trial in a court rather than the special procedures, which could be held in camera when required. We accept that for reasons of national security such proceedings would have to be held in

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camera, but nevertheless that would be our preferred route.

We must consider the proceedings already set out in legislation through the commission. We continue to be seriously concerned about the rights of appeal of the appellant or defendant, the fact that they are curtailed in respect of errors of law and that there is no ability to appeal on matters of fact. That is particularly important when there is the prospect of closed material that is not available to the defendant or appellant in the first instance and available only to a special advocate.

The appointment of a special advocate under rule 34 should not be a matter for the Secretary of State. It would be proper to have a panel of available special advocates whom the Secretary of State would find satisfactory for the purpose. Human rights and other legislation suggest that a person facing these proceedings should have a choice about who should be their representative, albeit from a closed list if that is the most appropriate way of doing so.

I am concerned about rules 37 and 38, which deal with closed material. We understand why occasionally matters have to be discussed that should not be revealed to the wider public or to the person facing the commission if he or she is a suspected terrorist or suspected of having communication with terrorist organisations, but I hope that that will be in only a minimum number of circumstances and that there is a clear view of the genuine need to withdraw the right to factual information on which a decision is taken rather than widening it at the convenience of the Government or the security services. That is at least a temptation under the suggested rules.

The hon. Member for Surrey Heath (Mr. Hawkins) raised the matter of the time limits involved in terms of the Secretary of State. The interests of natural justice and good procedure are best served when, as far as possible, there is a level playing field between the defendant or appellant and the instrument of the state, in this case the Secretary of State, in making objections. The procedures lay down clear time limits, for instance, on appeal against certification. There appears to be no time limit for the Secretary of State in providing grounds for objection. That does not seem to be an entirely satisfactory arrangement. It would be better were it to be specified. The Secretary of State should operate under some of the same constraints as the people to whom the proceedings are directed.

To an extent, this is a unique body, and I understand why it is treated differently from other tribunals. The Lord Chancellor's Department has been seeking, as far as possible, to bring together procedures for other tribunals. I understand why this one has to be different: it deals with very different material. There are some bodies that have a similar function to the commission. Dealing with the access to pathogens will also fall within the province of the Minister's Department. It would be sensible, and perhaps she could confirm the Government's thinking on the matter, to ensure broadly similar rules of

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procedure for broadly similar areas of functionality in relation to tribunals or special commissions. Would the Minister give thought to that so that there is not endless variation in procedure according to the functions being carried out by tribunal commissions or courts?

The Liberal Democrats will not oppose the rules because most of our objections are to the legislation under which they were introduced. We have already had an opportunity to make our point on that, but we shall carefully monitor how the arrangements work. I hope that they are satisfactory, and not open to challenge. I suspect that we may see areas of challenge in court in the future, but we shall see what happens.

2.52 pm

Yvette Cooper: The hon. Member for Surrey Heath raised the issue of the relaying of the draft. A consultation exercise on the rules has taken place, albeit a limited one, which has already taken into account the comments received. It is the JCSI's lawyers' role to scrutinise all draft statutory instruments for technical accuracy. It is not unusual for the JCSI to suggest changes; it considered the relaid draft at its meeting yesterday, and it is content with it. As the hon. Gentleman will be aware, I have set out where the amendments had been made, and they are limited and specific. The situation is not unusual.

The hon. Gentleman asked whether there would ever be circumstances in which a special advocate is not appointed. Clearly, the anticipation in practice would be that a special advocate would always be appointed in such circumstances. The procedure rules simply make it clear that if a special advocate is not appointed, the Secretary of State is not allowed to rely on any undisclosed material. That makes it clear that the reliance on undisclosed material is conditional on the appointment of the special advocate, which clarifies the position.

Rule 16 does not include specific time limits because it refers to the statement of evidence. It is not simply about the decision to appeal, but about laying a statement of evidence. That is rather different from the position for the appellant in relation to the five-day or 10-day timetable. In such cases, appellants need to submit grounds for appeal rather than evidence. Rule 16 relates to a statement of evidence, which can be a simple document or an extensive collation of documents in which a process of analysis has to be gone through about what constitutes closed evidence and what evidence can be put into the public domain or disclosed to the appellant. The experience of those involved is that that can take some time, and therefore it would be difficult to impose a specific time limit. However, SIAC can determine a particular time limit. It can therefore direct that evidence should be filed within a particular time limit if it has strong views on the appropriateness of a time limit in an individual case, or if there is concern about extensive delay.

The appellant submits their evidence after the Secretary of State has submitted his evidence. Again, there is no time limit on evidence in the rules, but again, SIAC can also set a time limit in these

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circumstances. That is the reason for the way in which rule 16 was drawn up.

The hon. Member for Somerton and Frome raised some broader issues about SIAC, which he recognised related to the legislation, not to the procedure rules. National security may determine that it would be a huge problem to disclose certain pieces of information: for example, counter-terrorism work could be jeopardised, or public safety or the safety of an individual who has risked their life to provide information could be at stake. There are circumstances in which it is important that information is kept secure. That is why SIAC was set up. It provides a proper and fair appeals process that allows such information to be kept secure. I disagree with the hon. Gentleman's claim that extending the jurisdiction of SIAC was a problem. This is the first time that there has been a proper appeals system in which decisions are taken to remove citizenship from someone in such circumstances. The extension of SIAC's jurisdiction will increase the fairness of the appeals process.

With regard to Select Committees and JCHR consultations, it is always possible to have wider consultations and, increasingly, we are keen to consider primary and secondary legislation to increase the amount of close scrutiny given, especially by Select Committees. The Lord Chancellor's Department Committee is a new opportunity for us. It has only just begun its work. Another process of scrutiny in the House is the discussion that we are having now. We set up

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Standing Committees in order to have parliamentary scrutiny of this legislation, which is the right process.

Mr. Heath: The Minister will accept that the difference between Select Committee consideration and Standing Committee consideration is that Select Committees have the ability to take evidence from others and to adduce conclusions from it.

Yvette Cooper: That is the case, but there are often important timetables, which need to be kept to when changes must be made and procedural rules introduced. Given the significance of the issues involved in this case, it is important to be able to implement these procedural rules within a rapid time scale.

The hon. Gentleman asked whether there could be broadly similar procedures for similar courts and tribunals. We have already simplified certain procedures, and intend to do more. I cannot comment on the particular tribunal to which he referred, but our overall intention is to try to simply the different procedures.

I ask the Committee to approve the measure.

Question put and agreed to.


    That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) Rules 2003.

Committee rose at one minute to Three o'clock.

The following Members attended the Committee:
Atkinson, Mr. Peter (Chairman)
Campbell, Mr. Alan
Cooper, Yvette
Davis, Mr. Terry
Ennis, Jeff
Fabricant, Michael
Field, Mr. Mark
Hawkins, Mr.
Heath, Mr.
Kemp, Mr.
Moffatt, Laura
Reed, Mr.
Reid, Mr. Alan
Watkinson, Angela
Watson, Mr.
White, Brian

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