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
appellants 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 Governments 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 materialmaterial that supports the
appellants case or undermines the Home Secretarys. 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
materialinformation 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 advocates 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
Secretarys objections to the disclosure to the
appellant of closed material on which he wishes to rely. Such detailed
material is often redactededitedby 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
appellants 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 Governments 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
commissions procedures. The reasons behind the amendments are
twofoldto 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.
It
was important to consult special advocates, given that many of the
amendments deal with the procedures
for closed material. It also ensured that the consultation was
appropriately balanced between the interests of the appellant and those
of the respondent. The views of stakeholders have substantially
affected the development of the two statutory instruments, particularly
in formalising the practice of holding a directions hearing and
establishing procedures for exculpatory material and for redacted
material. By consulting in detail, we have obtained agreement on the
amendments.
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 appellants 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
commissions 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 Governments
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
immigrationa process that the Joint Committee referred to as
mission creepthere 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 Secretarys 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 appellants case or undermines the Home Departments
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
interestas 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 advocates 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 Ministers
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 gapan
extremely difficult one to fillnamely 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
todays 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 rightsif
I can put it like thatbetween 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 curveI do not
pretend that I follow this day in and day outand 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 eyeI thought that the right hon. Member for Rotherham wanted
to speak at some point, but he seems to have disappearedI 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 actI think that he described it as squaring the
circleto meet the requirements to represent the
appellants 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 supportedthis touches on the point
about the Constitutional Affairs Committeeby a team of
security-vetted lawyers based at the Treasury Solicitors
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 todays 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 representationhe 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.
Finally, I say
again to the hon. Member for Huntingdon that the rules relate to
appeals to SIAC. For anyone appealing from SIAC, the rules are dealt
with through the SIAC Act 1997 and the separate set of civil procedure
rules. I hope that I have covered the general issuesif there is
anything specific that I have not covered, I will be happy to write to
the Committee with further details.
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.
Resolved,
That
the Committee has considered the draft Special Immigration Appeals
Commission (Procedure) (Amendment) Rules
2007.
Draft
Proscribed Organisations Appeal Commission (Procedure) Rules
2007
Resolved,
That
the Committee has considered the draft Proscribed Organisations Appeal
Commission (Procedure) Rules 2007.[Bridget
Prentice.]
Committee
rose at two minutes past Three
oclock.