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Public Bill Committee Debates

Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007

The Committee consisted of the following Members:

Chairman: Mr. Mike Hancock
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Browne, Mr. Jeremy (Taunton) (LD)
Clegg, Mr. Nick (Sheffield, Hallam) (LD)
Djanogly, Mr. Jonathan (Huntingdon) (Con)
Duddridge, James (Rochford and Southend, East) (Con)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Flello, Mr. Robert (Stoke-on-Trent, South) (Lab)
Foster, Mr. Michael (Worcester) (Lab)
Fraser, Mr. Christopher (South-West Norfolk) (Con)
Linton, Martin (Battersea) (Lab)
McGovern, Mr. Jim (Dundee, West) (Lab)
MacShane, Mr. Denis (Rotherham) (Lab)
Penrose, John (Weston-super-Mare) (Con)
Prentice, Bridget (Parliamentary Under-Secretary of State for Constitutional Affairs)
Stoate, Dr. Howard (Dartford) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wood, Mike (Batley and Spen) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Fifth Delegated Legislation Committee

Wednesday 28 March 2007

[Mr. Mike Hancock in the Chair]

Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007

The Chairman: Good afternoon. I point out to hon. Members that a Division is expected at 3.23 pm at the latest, so I ask them to bear that in mind.
2.30 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move,
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007.
The Chairman: With this it will be convenient to consider the draft Proscribed Organisations Appeal Commission (Procedure) Rules 2007.
Bridget Prentice: Thank you, Mr. Hancock. It is a delight to serve under your chairmanship. I believe that this is the first time that we have been together in Committee, but I know from past experience that you will deal with us fairly and openly.
The two sets of rules deal with two separate commissions, but I am pleased that the Committee has agreed to deal with them in one debate. I shall take the SIAC rules first. By way of background, SIAC is a specialist body created by the Special Immigration Appeals Commission Act 1997 to hear certain immigration and asylum appeals, including those on deportation and deprivation of citizenship.
An appeal goes to the commission rather than to the Asylum and Immigration Tribunal, if the Home Secretary has certified that the decision being appealed against was taken on national security or other public interest grounds. In many such cases, parts of the evidence cannot be made public due to national security considerations, and the appellant’s interests are then represented by a special advocate.
SIAC is especially important because it deals with cases that are right at the heart of the Government’s ongoing efforts to deal combatively with terrorism cases. It was introduced to provide independent judicial oversight of relevant decisions by the Executive. The rules amend the 2003 procedure rules, which prescribed the procedure to be followed for appeals to SIAC. The amendments are being introduced for three reasons: first, to bring the 2003 rules up to date with legislative developments that have taken place since; secondly, to put practices that have grown over time on a more formal legislative footing, and thirdly to add clarity to the procedures to be followed.
New provisions in primary legislation have led to some of the amendments to the rules. The Prevention of Terrorism Act 2005 repealed part 4 of the Anti-terrorism, Crime and Security Act 2001 and introduced control orders, against which there is a right of appeal to the High Court. Procedures for dealing with appeals against control orders are set out in part 76 of the civil procedures rules. The amendments to the SIAC rules remove references to the 2001 Act and make them consistent, where appropriate, with the civil procedure rules.
The Immigration, Asylum and Nationality Act 2006 contained measures to bolster the asylum and immigration process. Section 7 of that Act made deportation appeals with national security aspects non-suspensive, meaning that an appeal can be made only after removal from the United Kingdom. There is, however, an exception when the appellant makes a human rights claim, unless the Home Secretary has certified that removal would not breach the European convention on human rights. An appeal can be made to SIAC against the issue of such a certificate, so the remit of the rules is being extended to cover such appeals.
The rules are also being extended to cover section 9 of the 2006 Act, which amended the Nationality, Immigration and Asylum Act 2002, so that under certain circumstances appeals will not automatically be abandoned if the appellants are granted leave to enter or remain. The rules also clarify a number of provisions and formalise existing SIAC practices such as that of holding an early directions hearing to agree case management aspects of an appeal. They leave open the timetable for determination by the commission, and the commission may set the timetable at the directions hearing.
Additionally, the rules establish procedures for the Home Secretary to file exculpatory material—material that supports the appellant’s case or undermines the Home Secretary’s. The new rules are in accordance with current SIAC practice, in which the obligation to file exculpatory material is ongoing. A major feature that makes SIAC different from the AIT is the use of closed material—information that cannot be released for national security reasons. Where the Home Secretary intends to rely on such material, a special advocate is appointed by the Attorney-General to represent the appellant. The special advocate has access to all the closed material. The rule amendments make clearer certain things, such as the special advocate’s role in proceedings, when they should be served with documents and the fact that they may adduce evidence and cross-examine witnesses.
The rules also make clearer the process by which SIAC deals with the Home Secretary’s objections to the disclosure to the appellant of closed material on which he wishes to rely. Such detailed material is often redacted—edited—by the Home Secretary in preparation for disclosure. In order to reflect practice that has evolved recently within SIAC, the rules require the Home Secretary to serve on SIAC any closed material served on the special advocate that has been redacted on grounds other than that of legal professional privilege, together with explanations for the redactions. SIAC will determine whether the redactions are allowed.
The 2003 rules provide that the commission must produce a written determination to the parties giving reasons for its decision, as far as it is possible to do so without disclosing information contrary to the public interest. If the determination does not contain full reasons, the commission must serve on the Home Secretary and special advocate a separate closed determination. The rules, as amended, permit the special advocate to apply to SIAC to direct that parts of the closed material be within the open determination on the grounds that it would not be contrary to the public interest to disclose it. A provision mirroring that allows the Home Secretary to apply for an amendment to the open determination.
I shall turn now to the POAC rules. The Proscribed Organisations Appeal Commission was created by section 5 of the Terrorism Act 2000 and deals with appeals against refusals by the Home Secretary to de-proscribe organisations that he believes are concerned with terrorism. Proscribed organisations are listed in schedule 2 to the Terrorism Act. As with SIAC, if the Home Secretary intends to rely on closed material, the appellant’s interests are represented by a special advocate, and POAC has a general duty, enshrined in primary legislation, to ensure that information is not disclosed if it is contrary to the public interest. Proscribing organisations involved in terrorism is an important aspect of Government’s work to defeat terrorism. POAC provides for impartial judicial oversight of such decisions.
The rules being considered today replace the 2001 POAC rules. Although the number of changes to the 2001 rules warrant their replacement, the new provisions do not make any substantial change to the commission’s procedures. The reasons behind the amendments are twofold—to account for recent legislative developments in counter-terrorism and to bring the rules in line with those for SIAC where desirable. The existing rules require updating to take account of section 22 of the Terrorism Act 2006, which amended the 2000 Act to enable the Home Secretary to specify alternative names where a proscribed organisation is operating under more than one name. It allows for an appeal to POAC, if the Home Secretary refuses to change the order specifying alternative names.
Key provisions in the SIAC rules, revised twice since the introduction of the POAC rules, are reflected in the latter in so far as the two commissions’ procedures are similar. The provisions for an early directions hearing for the filing and service of material on an ongoing basis, and for dealing with closed material are carried across from SIAC. The procedures for redaction reflect those for SIAC, which I have described already. The rules make minor and technical amendments to clarify certain aspects of procedure. Over the past year, there has been extensive consultation with stakeholders on the two sets of rules. My Department has worked closely with representatives of a spectrum of those involved with and interested in SIAC and POAC cases and remits. They incorporate the Home Office, the special advocates office, the special advocates themselves, Treasury solicitors, the Foreign and Commonwealth Office, the Security Service and the judicial chairmen of both commissions.
Owing to the technicality of the rules, I have taken longer than I would normally. I commend the instruments to the Committee.
2.40 pm
Mr. Jonathan Djanogly (Huntingdon) (Con): I thank the Minister for her opening remarks and her explanation of the consultation that she has undertaken. My comments relate primarily to the SIAC statutory instrument, although as the Minister implied, many of my points will also relate to the POAC instrument.
The system that preceded SIAC was deemed to be unfair because appellants or their lawyers could not hear all the evidence on which the Home Secretary relied. SIAC was designed to remedy that with a system of security-vetted lawyers, called special advocates, separate from the appellant’s legal team. SIAC hearings are not fully revealed to the public or to appellants, because they include information that it is in the public interest to keep secret. I shall comment on the procedure rules of the body, which are amended by the statutory instrument.
Critics of the system say that the special advocate cannot build a proper case without being able to discuss the evidence with the appellant and is therefore hamstrung. Individual appellants, particularly those who are being deported to a country where there is a risk that they could be subjected to torture, complain that they sometimes do not know what they are accused of, because the information is closed. Amnesty International says that the commission’s judgments rely on a
“shockingly low burden of proof”,
because the evidence cannot be tested to the same standards as in the criminal courts. Amnesty has also warned that SIAC might breach international law by relying on evidence that has been extracted by the US security services in conditions that may amount to torture of suspects.
The Joint Committee on Human Rights, which monitors the Government’s anti-terror legislation, on whose uncorrected evidence from its oral proceedings on 12 March I now rely, questioned what the role of special advocates should be. Mr. Blake, QC, a special advocate, commented:
“The system of Special Advocates can never overcome that irreducible element of unfairness”.
The key players in the system recognise that the role of the special advocate does not guarantee a just mode of trial. The position is currently accepted because of the high threat to national security, but it is often not clear what that threat is. Mr. Blake said:
“Since the summer of 2006...the cases going through SIAC of deportation with assurances”,
in some cases to countries with questionable human rights records, mean that SIAC
“is no longer just looking at the national security case to deport. They are also looking at the safety on return to some of these countries...without violation of our human rights obligations...this is not national security; this is about foreign relations and things which governments prefer not to have revealed.”
He added that there were further problems with open and closed evidence:
“If you have a ton of evidence or a ton of reasons why there should be disclosure and you have a feather against, the feather beats the iron ton because the statute says nothing which transgresses the line is permitted and that is the point.”
His comment relates to open and closed matters and the rules on evidence that relate to them. All the special advocates who were interviewed by the Joint Committee stated that they were not clear-cut matters.
Another special advocate, Ms Farbey, commented on the gathering of material evidence that is often based on Google searches:
“We are then very often faced with the decision whether we serve the evidence on the Secretary of State and on SIAC, and whether we seek to have it put into the open case for the assistance of the appellant. That I find a very difficult position decision, one of the most difficult aspects of the job. I may well not fully understand the context of what I have found and I may not know whether it comes from a source which the appellant would find reliable and supportive for his case. I may have to take a precautionary approach. It may be better for me to keep the document to myself rather than to risk giving it to the Commission and to the Secretary of State and finding that it harms rather than helps the appellant's case, but then of course one must not be too precautionary. They are very fine judgements to make and they can be lonely and very difficult judgements.”
As SIAC moves into matters that are more tied into asylum than immigration—a process that the Joint Committee referred to as “mission creep”—there is a real danger of unfair trials, which the special advocates were all too aware of. Mr. Blake said:
“But you are still left with the problem of deportation of people who did not have any rights granted by statute or human rights doctrines or anything else, and is this a check against arbitrary detention or expulsion?”
I shall set out a few areas of particular concern to which the rules refer and I would be grateful if the Minister would respond. Rule 8 deals with applications for permission to appeal from SIAC to an appellate court. One of the most controversial elements of SIAC is that the Home Office designed the system to prevent appellants from taking further judicial reviews of the Home Secretary’s decision, allegedly because of the damage that that could cause to national security. If someone loses their appeal, they can only take their case further to the House of Lords and only then on a point of law. However, to date there has only been one case allowing an appeal from SIAC. Rule 9A inserts a directions hearing into the rules. How will that change help an appeals system to emerge in those cases where an appeal is appropriate?
Rules 9 and 10 establish procedures for the Secretary of State for the Home Department to file exculpatory material. That is material that supports the appellant’s case or undermines the Home Department’s case. Will the Minister give her views on the circumstances when it would be appropriate for the Secretary of State to bring forward such material? Realistically, when is it going to be used? Will it be used for control orders as well, or where deportation with assurances is an issue? Will the Minister make a statement about how disclosure of information contrary to the public interest—as set out in rule 10A(4)—will affect the role of special advocates? Does she agree that that represents a further strain on the special advocate’s role in working out what is open and what is closed evidence?
Rules 20 and 27 make it clear that special advocates may adduce evidence and cross-examine witnesses. Will the Minister explain how that enhanced power will strengthen the role of the special advocate within SIAC? How will the order make it easier for special advocates to demarcate the line between open and closed evidence? A problem that most of the special advocates addressed was the difficulty of finding out what constitutes open information, so how will the order simplify that situation and clarify how special advocates will be able to adduce evidence and cross-examine witnesses without the appellant knowing the precise nature of the offence that they are charged with?
The instrument does not amend primary legislation, so no statement about its compatibility with the European convention on human rights is required. However, will the Minister tell the Committee what the Government have done to ensure that human rights challenges will not be made to these procedures?
This is a complicated and delicate area, but it is one where we must do our utmost to ensure that due process and justice are served. I look forward to hearing the Minister’s response.
2.49 pm
Mr. Nick Clegg (Sheffield, Hallam) (LD): It is a great pleasure, Mr. Hancock, to see you in the Chair. This is the first, but I hope not the last, occasion on which I will be able to welcome you to the Chair. I thank the Minister for her detailed statement and the hon. Member for Huntingdon for his comments. He is a greater expert than I am in these matters and I found his remarks as much pedagogic as anything else.
The three reasons given by the Minister for the SIAC rules are perfectly laudable: to bring SIAC up to date with recent counter-terrorism legislation; to formalise practice that has evolved during the operation of SIAC; and to bring clarity to its procedures. However, in an area such as the highly sensitive work of SIAC, it is difficult merely to treat the issues as nothing but technical modifications; SIAC by definition fills a gap—an extremely difficult one to fill—namely providing the administration of justice in cases that are highly circumscribed in their exposure to public scrutiny and, by definition, with a necessary diversion from the standard procedures that we are familiar with from our own court system.
Special advocates have a heavy burden to carry, because they are being asked to square that circle and to make the administration of justice in SIAC acceptable, notwithstanding all the constraints under which they, and the appellants indeed, are uniquely asked to operate. Special advocates continue to harbour a number of outstanding doubts about their ability to discharge that responsibility in as full a fashion as they are keen to do. That has been reinforced by a number of reports, some cited earlier by the hon. Member for Huntingdon, and I will add to that.
I refer hon. Members to the conclusion of the Constitutional Affairs Committee in 2005:
“there are a number of defects with the Special Advocate system as it operated through the Special Immigration Appeals Commission, particularly in relation to support provided to Special Advocates and the disclosure of exculpatory material. During the course of our inquiry, the Department for Constitutional Affairs and the Attorney General gave us assurances that both these aspects would be addressed in response to the concerns which we highlighted.”
Equally, there is what we know from the public controversy surrounding a ruling by Mr. Justice Newman in October 2006 in a notorious case. According to the judge, the administration of justice had been put at risk in the trial of a Nigerian, Abu Doha, and of a suspect known as MK, who was later deported to France, because of evidence from the security services that was presented in each case but used in a contradictory fashion. So, while those two observations are unrelated, they illustrate the sensitivity of the matters that we have before us today.
In that light, I ask for three assurances. First, does the Minister believe that today’s changes are relevant or will do anything to correct what the Home Office called its “exceptional mistake”, when Mr. Justice Newman revealed that evidence from MI5 had been presented in each case but used in a contradictory fashion? At the time, we were assured that the Home Office felt that to be just an “exceptional mistake”, and that steps were being taken to ensure that such an error could not occur again. Maybe it is my lack of proficiency in technical detail, but I am curious to know whether the rule changes have any bearing on that.
Secondly, I am keen to emphasise or echo the inquiry made by the hon. Member for Huntingdon. In which circumstances does the Minister anticipate that exculpatory evidence will have to be filed as specified under the rules? It is terrifically important that the rule change is not just in form, but leads to material changes in the balance of rights—if I can put it like that—between the appellant and the Home Office.
Finally, given what has been said here, will the Minister accept that the 2005 recommendation of the Constitutional Affairs Committee for the establishment of an office of special advocates should be looked at seriously, in order that special advocates get the appropriate expert support and facilities? I may be behind the curve—I do not pretend that I follow this day in and day out—and maybe those assurances have already been given, but this debate certainly reinforces the claim of the Constitutional Affairs Committee that more resources and support need to be provided to the special advocates.
The Chairman: In the absence of anyone else seeking to catch my eye—I thought that the right hon. Member for Rotherham wanted to speak at some point, but he seems to have disappeared—I will ask the Minister to respond.
2.55 pm
Bridget Prentice: I will do my best to answer the questions as well as I can. I will begin by discussing what the hon. Member for Sheffield, Hallam has said about the sensitivity of this issue; he is quite right, and we must therefore be particularly careful about how we deal with it. The situation regarding individuals’ human rights is essentially important, which is why these rule changes make things more transparent and clear, giving special advocates the status that they need.
The Home Secretary already discloses exculpatory evidence, which the rules put on a legislative footing. In a sense, that will make the rules much more firm, and the requirement to disclose is a continuing one.
On the Constitutional Affairs Committee, I will briefly discuss the role of special advocates to cover a number of the issues raised by both hon. Gentlemen. Clearly, the special advocate plays a pivotal role in the judicial process. As the hon. Member for Sheffield, Hallam has said, it is a difficult balancing act—I think that he described it as squaring the circle—to meet the requirements to represent the appellant’s best interests, often in the absence of any precise instructions, while at the same time meeting the need to protect the sources of some crucial information. Special advocates are selected on the basis of their considerable expertise and experience in that field, and they are appointed because they are exactly the best people to manage that difficult balancing act. The Attorney-General chooses them from a list of approved lawyers, who are selected for being able to handle sensitive information. Such people have been security vetted and are appointed because of their expertise and experience.
The Attorney-General agreed during the passage of the Prevention of Terrorism Act 2005 to increase the number of special advocates, allowing the appellant to have a greater choice. They are supported—this touches on the point about the Constitutional Affairs Committee—by a team of security-vetted lawyers based at the Treasury Solicitor’s Department. We pay careful attention to the role of special advocates, and give them appropriate support. However, I shall ensure that the Attorney-General has sight of the record of today’s debate, so that he is aware of the concerns that have been expressed about the support that they receive. Of course, while such people are supported and appointed by the Attorney-General, they are not instructed by him.
The hon. Member for Huntingdon asked about the procedure by which the appointment is made. It complies with the European convention on human rights and is not, therefore, subject to judicial review.
The special advocate can meet the appellant face to face at various points in the process, and can interview the appellant before any closed evidence is served upon him. It could be that the two are in the court at the same time. The appointment of a special advocate does not deny the appellant the right to separate legal representation—he often has that too.
The hon. Member for Huntingdon asked about the demarcation line between open and closed material. I do not know precisely where the gentleman to whom he was referring made those comments, but we had very detailed discussions in consultation with special advocates as a group and individually, and no one raised that as an issue, so I am reasonably satisfied that they are happy with the balance between the two things.
The rules have been updated to take into account our very robust dealings with terrorism and how we have to conduct ourselves in court in cases of such sensitivity. I hope I have reassured the Committee that following our consultation with all the stakeholders involved we have set out rules that are properly updated, parallel one another when appropriate and give the appellant and the respondent proper rights, so that due process can be carried out. I hope that the Committee will agree to the rules being adopted.
Question put and agreed to.
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2007.

Draft Proscribed Organisations Appeal Commission (Procedure) Rules 2007

That the Committee has considered the draft Proscribed Organisations Appeal Commission (Procedure) Rules 2007.—[Bridget Prentice.]
Committee rose at two minutes past Three o’clock.

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