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Session 2005 - 06
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Standing Committee Debates

First Standing Committee on Delegated Legislation

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First Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


Mr. Eric Martlew

†Bellingham, Mr. Henry (North-West Norfolk) (Con)
†Brennan, Kevin (Cardiff, West) (Lab)
†Bryant, Chris (Rhondda) (Lab)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
†Dodds, Mr. Nigel (Belfast, North) (DUP)
†Engel, Mrs. Natascha (North-East Derbyshire) (Lab)
†Godsiff, Mr. Roger (Birmingham, Sparkbrook and Small Heath) (Lab)
†Hermon, Lady (North Down) (UUP)
†Khan, Mr. Sadiq (Tooting) (Lab)
McGrady, Mr. Eddie (South Down) (SDLP)
†Main, Anne (St. Albans) (Con)
†Meale, Mr. Alan (Mansfield) (Lab)
†Öpik, Lembit (Montgomeryshire) (LD)
†Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
†Robertson, John (Glasgow, North-West) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
†Ussher, Kitty (Burnley) (Lab)
Alan Sandall, Committee Clerk

† attended the Committee

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Tuesday 11 October 2005

[Mr. Eric Martlew in the Chair]

Rules of the Supreme Court
(Northern Ireland)
(Amendment No. 4) 2005

4.30 pm

The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move,

    That the Committee has considered the Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005 (S.R. (N.I.), 2005, No. 314).

First, Mr. Martlew, on behalf of every member of the Committee I welcome you to the Chair. I understand that this is your first opportunity to serve as Chairman on one of these magnificent statutory instrument Committees; I am sure that you will do that role proud.

The rules amend the Rules of the Supreme Court (Northern Ireland) 1980 to insert a new order, 116A, to support proceedings in the High Court and appeal proceedings in the Court of Appeal under the Prevention of Terrorism Act 2005.

Let me recap the background of the rules. The Government are mindful of the continuing and serious threat to the security of the United Kingdom from terrorism. Our view is that it is appropriate and necessary that procedures be put in place to protect the nation against the risk of terrorism posed by individuals who are suspected of involvement in terrorist-related activity, but who cannot be prosecuted through the criminal courts. However, it is also our view that it is imperative that such procedures be subject to strict safeguards and consistent with the rule of law and our human rights obligations.

We introduced the Prevention of Terrorism Act 2005 as emergency legislation in response to the decision of the House of Lords in A v. others in December last year that the powers in part 4 of the Anti-Terrorism, Crime and Security Act 2001 were discriminatory and disproportionate. As a result, it was essential to have new arrangements in place by the time the part 4 powers expired on 14 March 2005.

The Prevention of Terrorism Act 2005 provides for the making of control orders that impose obligations on individuals who are suspected of involvement in terrorism-related activity. The Act draws a distinction between two types of control orders—derogating control orders and non-derogating control orders—and there are different judicial procedures in respect of each type of control order. The purpose of this amendment to the Rules of the Supreme Court (Northern Ireland) 1980 is to establish rules to support control order proceedings and relevant appeal proceedings.

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Normally, Supreme Court rules are made by the Northern Ireland Supreme Court Rules Committee, which has statutory responsibility for maintaining those rules. The committee is chaired by the Lord Chief Justice of Northern Ireland, Sir Brian Kerr, and is made up of representatives of the judiciary, barristers and solicitors. Due to the exceptional circumstances in which the Prevention of Terrorism Act 2005 was passed, it would have been impossible for the Supreme Court Rules Committee to make the relevant changes to the rules of court in the very short time originally available. That is why it was necessary to legislate for a special rule-making procedure under paragraph 3 of the schedule to the Prevention of Terrorism Act, authorising the Lord Chancellor, instead of the committee, to make rules on the first occasion after the Act was passed. That mirrored the approach taken in England and Wales whereby the relevant civil procedure rules were made by the Lord Chancellor rather than by the Civil Procedure Rules Committee.

The Lord Chief Justice of Northern Ireland was informed before the introduction of the Bill of the need for a special procedure to make the first set of rules. In consultation with him, the Lord Chancellor made that first set of rules, but the Supreme Court Rules Committee may make any subsequent rules or amendments as and when necessary. Rules made by the Supreme Court Rules Committee will be subject to the normal requirements of the Judicature (Northern Ireland) Act 1978, including the negative resolution procedure.

The Rules of the Supreme Court (Northern Ireland) (Amendment No.4) 2005 introduce a new order to the Rules of the Supreme Court (Northern Ireland) 1980. The rules in new order 116A are based on the general principle that the existing provisions of the Rules of the Supreme Court relating to applications and appeals in general should apply to control order proceedings and appeals subject to any necessary modifications, as set out in order 116A.

Lady Hermon (North Down) (UUP): I, too, welcome you to the Chair, Mr. Martlew. I am most grateful to the Minister for taking my intervention. Will she clarify a small point? She has reminded the Committee that this country faces a very real threat from terrorism; none of us would dissent from that, but is she telling the Committee that the control orders have not been available in Northern Ireland until now?

Bridget Prentice: No, I am not suggesting that, nor am I suggesting that they have been used to a huge extent in the past. The orders may not need to be used in Northern Ireland more than anywhere else in Britain. The point is that the orders give the security forces the necessary means should they feel the need to use control orders in appropriate cases.

Part I deals with the scope of the order, the interpretation of the terms used and the necessary modification of the overriding objective of the rules of the Supreme Court to ensure that sensitive information is not disclosed contrary to the public interest. It has been modified for the purposes of the
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new order by placing a new duty on the Court to ensure that information is not disclosed contrary to the public interest and by requiring the overriding objective to be read and given effect in a way that is compatible with that duty.

Part II deals with applications to the High Court relating to derogating control orders; part III deals with leave applications, references and appeals to the High Court relating to non-derogating control orders; part IV deals with onward appeals to the Northern Ireland Court of Appeal; and part V contains general provisions that apply to all proceedings in the High Court and Court of Appeal brought under the Prevention of Terrorism Act. That includes provision in rules 25 to 28 for closed hearings and the use of special advocates.

Part V also includes provisions in rules 30 to 32 that require the Secretary of State to disclose to the Court all the material that is available to him and is relevant to the matter under consideration. The Secretary of State must also disclose all such material to the other party except where the Court permits him to withhold material on the ground that disclosure would be contrary to the public interest. If the Secretary of State withholds material from the other party without the permission of the Court, the Court may prevent the Secretary of State from relying on such material, or it may withdraw the matter from its consideration. Those rules reflect the requirements of paragraph 4(3) of the schedule to the Prevention of Terrorism Act 2005, which was inserted by an amendment to the Bill to meet concerns about the need to establish a procedure for the disclosure of exculpatory material.

I have outlined the substantive provisions of the Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005, and the legislative background of the Prevention of Terrorism Act 2005. I commend the rules to the Committee.

4.38 pm

Mr. Jonathan Djanogly (Huntingdon) (Con): Welcome back, everyone.

The Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) 2005 introduce new order 116A into the Rules of the Supreme Court (Northern Ireland) 1980. The order sets out special procedures for court proceedings and appeals relating to control orders under the Prevention of Terrorism Act 2005.

Hon. Members will appreciate that we have indeed been here before—on 5 April this year, to be precise, when we discussed the Civil Procedure (Amendment) (No. 2) Rules 2005 introducing a new part 76 into the civil procedure rules. The proposal before the Committee mirrors those rules and covers almost all the issues that were covered on 5 April. Other than where we still have concerns, I shall not repeat today all the arguments I made at the time and those that were later advanced by several noble Lords who represent the views of the Opposition in the other place.

I stressed on 5 April, as I do now, that the rules do little to alleviate our separate but important concerns about the Prevention of Terrorism Act. The
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Government kindly wrote to me on 20 April in relation to the Civil Procedure (Amendment No. 2) Rules. That letter went some way toward addressing our concerns, but several remain.

I wish to deal with four specific matters: the inexplicable delay; the fettering of the overriding objective; the use of special advocates; and the discriminatory nature of the provisions on hearings. I hope that the Minister will be able to deal with those concerns.

The Prevention of Terrorism Act and the special procedures for court proceedings and appeals relating to control orders were made on 14 March 2005. As was implied in the intervention by the hon. Member for North Down (Lady Hermon), there has been an unacceptable delay of almost seven months before the rules’ consideration in Committee. Will the Minister explain that delay and how the Act is being applied to Northern Ireland in the interim? The rules mirror the Civil Procedure (Amendment No. 2) Rules that were introduced in April 2005. It seems generally unacceptable practice that the Government have waited until October to implement the rules in Northern Ireland. Given that the Act is due to be reviewed in January 2006, that potentially leaves only three months of application. Will the Minister explain to the Committee why the Government have delayed so long on a matter of such importance, despite the fact that the Act is intended to apply only to so-called “new” terrorists? Surely the Government do not now consider Northern Ireland to be low priority.

My second point is on the fettering of the overriding objective. I accept that the Minister has already attempted to address our concerns. However, we remain unconvinced of the need for new rule 2 in new order 116A. It provides that

    “the overriding objective . . . must be read . . . in a way which is compatible”

with the court’s duty to ensure that

    “information is not disclosed contrary to the public interest.”

In effect, that gives rule 3 precedence over the overriding objective. The reasoning behind the overriding objective not being disapplied—that it is merely subject to the court’s duty to ensure that information is not disclosed contrary to public interest—cannot disguise the fact that the overriding objective is being overridden. The essence of the overriding objective is that cases should be dealt with justly. That is the cornerstone of our civil procedure rules, and it is crucial to the administration of justice that that remain the case, despite the temptation to derogate in the fight against terrorism. Ensuring that information is not disclosed contrary to the public interest can be achieved without making the overriding objective subject to the provisions in new rule 2(1) in new order 116A. No doubt many documents relating to other cases are withheld in the interests of nation security and so on, but I would have thought it unnecessary to set the dangerous precedent of usurping the overriding objective.

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My third concern is about new rule 24(2)(c), which provides that no hearing would be required for an appeal where the controlled person is not represented and when he or she is

    “outside the United Kingdom or it is impracticable to give him notice of a hearing”.

That exception to the requirement for a hearing seems unnecessarily broad. Will the Minister clarify the intended use of the provision? Surely it is arguable that the exception is open to abuse and needs to be tightened. Would not an unrepresented person be the person most in need of a hearing? Considering the inherently one-sided nature of the proceedings, which include the use of in camera meetings, secret evidence and special advocates, who are unable subsequently to discuss proceedings with the subject of the order, would it not be prudent to give the controlled person at the very least the reassurance of a hearing, rather than to provide an excuse not to have one merely because it is impractical?

Finally, we still have concerns about special advocates. The Committee has discussed those concerns at length previously, so I shall be brief. New rule 27 lists the functions of special advocates. I ask the same question as I did in April. Will the Minister clarify whether the specific functions that are listed are exhaustive? If so, should the list be widened to permit further scope to represent the subject of the order’s interest as the use of special advocates becomes increasingly refined? It may be that the circumstances before us are exceptional. As the Minister may point out, it is difficult to strike a balance between the best interests of the controlled person and the protection of sensitive information. Will the Minister reassure the Committee regarding the Government’s progress in reviewing the use of special advocates and striving to find a more acceptable model? Has she anything further to report on the creation of a panel from which the subject of an order can select a special advocate?

We remain concerned that the rules may add further injustices to the existing problems in the Prevention of Terrorism Act 2005 regarding the infringement of civil liberties. In the light of recent events, the inexplicable delay does little to reassure us that the Government are giving these matters the time that they deserve. The proceedings are inherently one-sided, so the Government must remain vigilant in respect of the unnecessary fettering of civil liberties and of cornerstone ideology, such as the overriding objective. I hope that the Minister has listened to and will address our concerns.

4.45 pm

Lembit Öpik (Montgomeryshire) (LD): I, too, welcome you to this auspicious Committee, Mr. Martlew. I hope that we will do you justice in our behaviour.

The Minister discussed the background to the rules and reminded us that we are discussing them only because the Government believe that they are the best way in which to address the security threat to the UK
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and to protect the nation. Without going beyond what the Minister said, it is important to remind her that some of us believe as we did before: that the Government have addressed the issue the wrong way round. She may sound magnanimous today, but the Government were forced by a ruling to alter the procedures because their original proposals, which they passed in the House, were regarded as discriminatory and disproportionate. Little in their attitude has changed. Although there is much in the rules with which we can agree, we do not agree with the Government’s fundamental approach to terrorist matters.

The Liberal Democrats have no problems with the procedure in part II of the schedule. We supported the Government on that part of the legislation when the 2005 Act was going through Parliament and the rules fairly reflect the intentions of the legislation. In relation to part III of the schedule, we have no problem with the procedure laid out under rule 8, which is the most important part. When the 2005 Act was being debated, we vehemently objected to the Secretary of State having the power to make control orders at all, and nothing has changed in that respect. The Minister will recall that we had an all-night sitting in March on this issue. Our objections now are the same as they were then: the decision to impose a control order should, in all circumstances, be a judicial one, made, as Lord Thomas of Gresford said,

    “in accordance with due process and with necessary safeguards and guarantees against injustice.”

He went on to say that the perception of injustice will

    “inflame communities and increase the danger of creating more terrorists than we can control either by imprisonment or the orders.”—[Official Report, House of Lords, 10 March 2005; Vol. 670, c. 865.]

Have the Government learned nothing from internment and other crass mistakes made by the Government in Northern Ireland? We find ourselves in the invidious position of not objecting to the content of the rules per se, but having profound objections to the background to the measure and the legislation it is designed to resolve.

The use of judicial review in the process simply means that the courts can do no more than oversee the Secretary of State’s use of his powers. They still will not be able to decide cases on their merits or to decide which obligations are appropriate and necessary. The power of the Secretary of State to make an executive order severely limiting the liberty of an individual, whether a foreign national or a British citizen, is what we found objectionable when we first discussed the matter and what we find objectionable now. I recognise that a statutory instrument of the kind before the Committee is unlikely to be intended to redress a problem so profoundly based in principle. However, the Minister should at least comment on her judgment about that flagrant injustice, as I see it.

As there is nothing in the rules that is objectionable or out of the ordinary, I do not intend to vote against them today. Nevertheless, I make it clear in the strongest terms that we object to the process set out in the Prevention of Terrorism Act 2005, and I strongly counsel the Minister to remember that the greatest
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single lesson of the process of the slow and painful march towards peace in Northern Ireland has come, not from the imposition of such regulations, but from a serious effort to understand the motivations behind terrorism. It is by addressing motives rather than by seeking to suppress the opportunity to terrorise that great progress has been made in Northern Ireland. I hope that, at least over time, the Government will recognise that that is the lesson that we can learn from the process and that it is one that we should apply in the whole United Kingdom.

4.51 pm

Lady Hermon: I preface my remarks by saying that the Ulster Unionist party—and I can be unanimous in this—supports control orders. Perhaps the Minister will note that before I raise with her several serious concerns that my party, and I in particular, have with today’s provisions.

My starting point is the January statement made by the Secretary of State for the Home Department. He told the House that in his judgment

    “there remains a public emergency threatening the life of the nation.”—[Official Report, 26 January 2005; Vol. 430, c. 306.]

He later said, at column 309, that “The threat is real”. It is a threat against the entire nation of the United Kingdom—I gently remind the Minister that Northern Ireland is an integral part of the United Kingdom—so it was with concern that I discovered, on reading point 3 of the explanatory memorandum, headed “Matters of special interest to the Joint Committee on Statutory Instruments”, that the rules that we are discussing this afternoon

    “replace the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) . . . which will cease to have effect from midnight on 26th June 2005, as they did not obtain the approval of both Houses within the 40-day affirmative resolution period.”

I intervened on the Minister earlier to draw her attention to the fact that the explanatory memorandum seems to show that Northern Ireland, an integral part of the United Kingdom, did not have control orders available to it throughout the summer. I see the Minister nodding; perhaps she will intervene on me. I should be delighted to be corrected on this point, because the explanatory memorandum is confusing.

Bridget Prentice: The hon. Lady is correct in her description of the delay, in the sense that because of the intervention of the general election we reached the end date of 26 June. However, I assure her that the Act that was passed before the general election gave the Lord Chancellor the appropriate powers, so Northern Ireland was not in a position different from that of the rest of the United Kingdom. We are now ensuring that the rules reflect what the Act provided. I should not want the hon. Lady to think for a moment that a part of the United Kingdom was not given the same sense of security by the Prevention of Terrorism Act as the rest of the United Kingdom was. We are now correcting rules and procedure and subsequently we shall of course hand the matter back to the Committee on Procedures in Northern Ireland.

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Lady Hermon: I thank the Minister for that enormously helpful reply, which in the circumstances was a justifiably lengthy intervention. I appreciate the fact that she intervened, since it saves me reading the next page and a half of my notes. It is a consolation to learn that control orders were available in Northern Ireland throughout the summer: it would have been a high-risk strategy for Northern Ireland not to have had them, because of the ease with which people can arrive at Dublin airport or Shannon airport, travel across the border to Belfast City airport and then travel throughout the rest of United Kingdom on a simple flight. I am greatly reassured by the Minister’s intervention.

Following on from that point, and in the light of the concerns highlighted by the hon. Member for Montgomeryshire (Lembit Öpik) on behalf of his colleagues, I would be even more reassured if the Minister gave some explanation regarding the erosion of civil liberties. It would be helpful if the Minister conveyed to members of the Committee the advice and comments received by the Government on the rules from the Northern Ireland Human Rights Commission—a statutory commission set up by the Labour Government after the Belfast agreement. I am delighted to see that the hon. Member for Belfast, North (Mr. Dodds) is with us this afternoon, and that his party, the Democratic Unionist party is now represented on the Northern Ireland Human Rights Commission. That is to be welcomed. I expect that the Minister will be able to reflect to the Committee the views of that statutory commission on the rules. That would be helpful.

The other concern that I always have when we introduce legislation here at Westminster is that it impinges on policing and the resources of the Chief Constable of the Police Service of Northern Ireland. It concerns me when we meet with Sir Hugh Orde and his senior colleagues. They are all doing a tremendous job: there is great leadership within the service at present, although that is not a reflection on past leadership, but in the present circumstances and given the difficulties throughout the summer, we have had very good leadership from the PSNI. I should like to know from the Minister what prior consultation there is with the Chief Constable of the PSNI, whose resources are stretched.

Let us be blunt: we have seen a number of very grisly murders. Five men have died within a short period of time, four of them as a result of loyalist paramilitary feuding—the four men were perceived to be members of one or other of the organisations. Last week, a prominent member of the Ulster Defence Association was murdered. The PSNI’s resources have been stretched, so it would be helpful if the Committee learned from the Minister what consultation there has been with the Chief Constable about the enforcement of control orders. As we know, control orders made under the Prevention of Terrorism Act 2005 can extend to keeping a person in their home without a mobile phone, without access to the internet or communication with friends, family or relatives. Can the Minister explain how the orders will be enforced in
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Northern Ireland? Can she also clarify the first comments made by the Secretary of State about control orders in his statement of 26 January? They have never been clarified. He said:

    “We intend that such orders”—

meaning control orders—

    “be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of terrorist activity—whether international or domestic—and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities.”—[Official Report, 26 January 2005; Vol. 430, c. 307.]

When the Secretary of State made that statement, I understood that control orders would be available not just against al-Qaeda suspects or others within the United Kingdom, but against members of terrorist organisations in Northern Ireland.

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