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Session 2007 - 08
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Public Bill Committee Debates

Draft Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007

The Committee consisted of the following Members:

Chairman: Mr. Eric Illsley
Boswell, Mr. Tim (Daventry) (Con)
Butler, Ms Dawn (Brent, South) (Lab)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Crausby, Mr. David (Bolton, North-East) (Lab)
Davidson, Mr. Ian (Glasgow, South-West) (Lab/Co-op)
Dorrell, Mr. Stephen (Charnwood) (Con)
Gilroy, Linda (Plymouth, Sutton) (Lab/Co-op)
Heath, Mr. David (Somerton and Frome) (LD)
Hendrick, Mr. Mark (Preston) (Lab/Co-op)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
Khan, Mr. Sadiq (Tooting) (Lab)
Laing, Mrs. Eleanor (Epping Forest) (Con)
Moran, Margaret (Luton, South) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Williams, Mrs. Betty (Conwy) (Lab)
Celia Blacklock, Committee Clerk
† attended the Committee

Second Delegated Legislation Committee

Monday 19 November 2007

[mr. Eric Illsley in the Chair]

Draft Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007

4.30 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I beg to move,
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007.
The Chairman: With this it will be convenient to consider the draft Proscribed Organisations Appeal Commission (Procedure) (Amendment) Rules 2007.
Bridget Prentice: As always, Mr. Illsley, it is a delight to serve under your chairmanship. I welcome the hon. Member for Epping Forest to the Committee—I believe that it is the first time that she and I have participated in a debate as members of our respective Front-Bench teams.
For convenience, I shall use the abbreviations SIAC and POAC for the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission. Although they are separate bodies, there are broad similarities in their procedures, so it is appropriate for the Committee to consider the two measures together, as they are necessary to implement an EU directive that will come into force on 1 December. It might be helpful if I give some background on SIAC, which is a superior court of record created by the Special Immigration Appeals Commission Act 1997 that deals with appeals against decisions made by the Home Secretary to deport or exclude people from the United Kingdom on national security or other public interest grounds. It also hears appeals against decisions to deprive people of citizenship status.
SIAC plays an important role in the counter-terrorism remit, as it provides effective, independent judicial oversight of Executive decisions. In the majority of cases that are heard before it, some evidence cannot be made public on considerations of national security or public interest and, in those cases, the evidence is designated as closed material. Section 6 of the 1997 Act allows for a special advocate to be appointed by the Attorney-General to represent the interests of the appellant in closed session.
The draft rules amend the Special Immigration Appeals Commission Procedure Rules 2003, which prescribe the procedure for appeals to SIAC. There are basically three amendments. Two of them bring SIAC rules into line with an EU asylum procedures directive—council directive 2005/85—and the third implements minor clarifications of an existing rule. As background to the first two amendments, the EU directive is a key element of European asylum policy that aims both for common standards for fair and efficient asylum procedures in member states and for consistency across the different legal frameworks. The directive is mandatory on EU member states and it has an implementation deadline of 1 December. It lays down basic standards and procedures for assessing asylum applications and for granting and withdrawing refugee status. The vast majority of its provisions are about the initial stage of decision making rather than appeals, so they fall within the remit of the Home Office Border and Immigration Agency. UK practice is in line with many of those provisions, but the BIA will propose a number of amendments to the immigration rules as required.
Article 10 of the directive requires two amendments to the SIAC rules, both of which relate to procedures that SIAC already carries out in practice but which are not specifically included in the procedure rules. The amendments will achieve the consistency across legal frameworks that EU asylum policy aims to secure. Paragraph 2 of article 10 specifies that three of the guarantees for asylum applicants that are set out in paragraph 1 of the article pertain to the appeals process as well as to the initial application process. First, asylum applicants will be provided with the services of an interpreter for submitting their case when necessary. Secondly, they will not be denied the opportunity to communicate with the United Nations High Commissioner for Refugees and, thirdly, they will be given notice of the decision in reasonable time. With regard to the first guarantee, interpretation is provided for SIAC cases, but it has not been specified explicitly under the rules. We have therefore inserted a new rule setting out the existing procedure whereby the appellant may be provided with an interpreter for giving evidence in his appeal and, in other circumstances, when SIAC considers it necessary. The interpreter is paid from public funds. The SIAC’s rule-making powers do not extend to making such a provision so other legislation implementing the directive is available to achieve that.
The second guarantee does not require an amendment. SIAC does not prevent the applicant from communicating with the UNHCR and the rules state that the high commissioner may be a party to the proceedings. In respect of the third guarantee, the rules include an amendment to clarify the fact, using the language of the directive, that notice of the decision must be given to the applicant in reasonable time. The final amendment to the SIAC rules clarifies the time limit for applying for permission to appeal from SIAC to a further appellate court. The current rule, as amended by the Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007, is insufficiently clear. It has been pointed out that it could be read in a way that implies that the time limit is not necessarily the same—10 days—for each party.
It has always been the policy intention, however, that both parties would have 10 days in which to apply for permission to appeal to a further appellate court from receipt of the final determination on the appeal. The rule amendment provides clarity by providing a clear distinction between the provisional and final determinations on the appeal and by expressing the time limit more fully. The inconsistency in the current rule is minor—it has not caused any practical problems and was discussed with the SIAC chairman earlier this year. Nevertheless, as rule amendments are required by the EU directive, it is appropriate to make the amendment to provide clarity and consistency with existing SIAC practice. The amendment to clarify the time limit for applying for permission to appeal to an appellate court is replicated in the POAC rules.
The Proscribed Organisations Appeal Commission was created under section 5 of the Terrorism Act 2000 to deal with appeals against refusals by the Home Secretary to de-proscribe organisations that he believes are concerned with terrorism. Proscribed organisations are listed under schedule 2 of the Act, and the Proscribed Organisations Appeal Commission (Procedure) Rules 2007 govern the procedure for appeals before POAC. As I said earlier, POAC and SIAC have similar procedures, because the special advocate process used within SIAC is also applicable to POAC. The amendment on time limits ensures consistency between the two commissions’ rules in those areas where their procedures are similar.
We did not carry out a formalised public consultation exercise, as two of the three minor amendments arise directly from the directive and use its terminology. All three amendments give effect to an accepted procedure within SIAC rather than setting any new policies or practices. However, we consulted stakeholders representing the spectrum of those involved with, and interested in, SIAC cases and the POAC remit. We wrote to the Home Office, the Border and Immigration Agency, the special advocates, the special advocates support office, the Treasury Solicitor, the Foreign and Commonwealth Office, the Security Service, the Law Society, the Bar Council and the chairmen of both commissions, and we have obtained support from all of them for the amendments from those particular key stakeholders.
In summary, the directive that has given rise to the majority of the amendments represents an important step in the direction of a common European asylum policy. Although the amendments are minor, they are important as they contribute towards ensuring that SIAC’s legal framework is consistent with that envisaged by the EU. I commend the statutory instruments to the House.
4.40 pm
Mrs. Eleanor Laing (Epping Forest) (Con): May I, too, say what a pleasure it is for the entire Committee to serve under your chairmanship, Mr. Illsley? I thank the Minister for her kind words. This is the first time that we have crossed swords in a Committee of this kind. As she and I are both aware, there are sometimes certain ironies in our arguments, but I will save that matter for another day.
The order deals with a sensitive and important issue, and I am pleased that it has come before the Committee this afternoon. Rather than indulging in the politics of asylum, immigration and the prevention of terrorism, there are times when we simply have to sit down and look carefully at the precise rules, assess how they work and see what happens in practice. I am always in favour of secondary legislation being brought before the House to clarify misunderstandings or loopholes that have been discovered in previous legislation. At the same time, when orders are brought before the House to implement rules made in the European Union, it is important that we look at them carefully and not simply nod them through.
I am in favour of consistency across the European Union in matters concerning the asylum procedures directive. It is right for practical as well as political reasons, and I am pleased that today’s legislation will produce that consistency, and we welcome the amendments to the SIAC rules. The Minister has explained very well how they will work and why they are necessary, so I will not question her unnecessarily on those points. As constituency Members of Parliament, there are times when we are all frustrated with the inefficiencies and the difficulties of working with the Home Office and the Border and Immigration Agency. I say that without hesitation, although it will probably mean that all the letters that I have written over the past few months will go to the bottom of the pile, and the other 600-odd Members will be dealt with first. For that, I apologise to my constituents. None the less, as constituency MPs, we all have piles and piles of paper on our desk to deal with in this difficult and sensitive area.
To the extent that paragraph 3 of the SIAC statutory instrument concerns the clarification of time limits, I welcome it. If we do not have that clarification, we could have one set of lawyers arguing with another set at great expense and with a degree of administrative and bureaucratic time wasting—perhaps time wasting is not a fair comment because in the administration of justice, there is no such thing. [Interruption.] I am trying to rise above mere politics. Clarification of this kind, no matter how small the point, is very important. Instead of two sets of lawyers arguing over the small print on time limits—the clearer it is, the less room there is for argument—the real argument can take place on substantive points. In other circumstances, the hon. Lady and I could have found ourselves arguing over such matters. I am glad, however, that we are here arguing over different matters. Having said that, I do not argue with the clarification, which I very much welcome.
Moving on to the point about the right to, and the need for, interpreters. If justice is to be properly administered, it is necessary that anyone involved in a court or tribunal proceedings can understand the case being put and the argument either for or against them. The presence of interpreters is therefore very important, but I must ask the Minister how much the public purse pays for them. I appreciate that she may not be able to give me the information immediately, but if she wishes to write to me I would accept that as a perfectly proper procedure. This is an important matter. I do not wish to suggest for one moment that interpreters should not be available—of course they should—but, like everything else, we must balance that against the cost to the taxpayer and how much money is not being spent on other necessary areas of public administration because it is being spent on interpreters. Again, clarification on that matter would be very welcome.
Moving on to the POAC rules, once again I welcome the fact that the measures bring consistency across the board. If we pass one of the statutory instruments, we should certainly pass the other one, otherwise we will not have the consistency and clarity that I have just praised. The Minister explained how consultation with stakeholders would work. It is important to know whether all those stakeholders were unanimously in favour, without criticism, of the measures introduced by the Government, and I urge her to clarify that issue. Once she has answered those points, I will be pleased to support the statutory instruments.
4.47 pm
Mr. David Heath (Somerton and Frome) (LD): I, too, welcome you to the Chair, Mr. Illsley. I do not think that we need to detain the Committee long with the orders.
I was entertained by the notion expressed by the hon. Member for Epping Forest, that time wasting is unknown in the judicial system and in the administration of justice. It is an extraordinarily optimistic view on her part, but let us nevertheless hope that it is the case. I welcome the fact that the procedures are clearly within the remit of the Ministry of Justice. There might have been a question mark over that, because although it is a superior court of record for the purposes of the judicial system, it does not come within the tribunal’s remit at the Ministry of Justice. It is proper to make the distinction between the operation of the tribunal system and the Executive responsibilities of the Home Office so I welcome its positioning.
With regard to the substance of the orders, I welcome the clarification of the 10-day rule. There is no reason why the point at which the 10-day rule starts should not be clarified, and that is what the orders do. As for the change in the rule on interpreters, the order says:
“An appellant is entitled to the services of an interpreter for bringing his appeal—
(a) when giving evidence; and
(b) in such other circumstances as the Commission considers necessary.”
Will the Minister reassure me that that is not a narrowing of the requirement? In the interests of justice, it is important both that the applicant should fully understand the procedure that they are undergoing and that the rubric is translated. The terms under which they can lodge their appeal must be explained, and the translation must not simply be of the evidence that they are giving, as that is for the benefit of the court rather than the applicant.
Lastly, the insertion of the phrase, “within a reasonable time”, is exactly the sort of amendment that Liberal Democrats often propose during the course of a Bill, only to be told that it is entirely otiose. We are told that there is no requirement for it, as it would be inconceivable that the matter would not to be dealt with within a reasonable time. However, the Minister wants to insert those words into the order. It would be wrong to argue against such a measure, given that I am usually the one who proposes it, and I shall remind the Minister of that fact the next time that she wishes to resist an amendment on similar grounds.
I am not a great supporter of the SIAC process, which is beset with difficulties. A clear illustration of where SIAC lies in the framework of judicial proceedings is the order in which the stakeholders who were consulted are identified in the explanatory memorandum. The Home Office, the special advocates support office, the Treasury Solicitor, the Foreign and Commonwealth Office, the security services, the chairman of SIAC are listed before the Law Society and the Bar Council, which are the only representatives outside government. They are, of course, part of the legal system, and there are no stakeholders outside the interests of the state. That is something of which we should be aware, and we should be cautious about it.
4.50 pm
Mr. Tim Boswell (Daventry) (Con): Members’ comments have been good-natured and helpful. I welcome the proposals and the way in which the Minister, with whom I have debated in various capacities in the past, introduced them. The last thing I want to do is to take away from the perfectly sensible points of clarification in the orders. In the spirit of what has been said by my hon. Friend the Member for Epping Forest and by the hon. Member for Somerton and Frome, I shall flag up areas of concern, some of which are coincident with the remarks already made, while others go beyond them.
On the administrative and policy background, I understand the point made by the hon. Member for Somerton and Frome about the division between the Home Office as the Executive Department, and the Ministry of Justice, which supervises the judicial system, but the operations of those Departments were undertaken together until earlier this year. The Minister has already explained that other areas will fall within the remit of the Home Office, with the Border and Immigration Agency acting as the relevant agency. I trust that the Minister will assure the Committee that the two Departments work together seamlessly to deliver an acceptable service, which must meet national security requirements and the interests of justice, both of which are important.
As a member of the Parliamentary Assembly of the Council of Europe, I declare an interest, although I am not involved directly with European Union affairs. I shall do that rare thing for a Member—one is advised not to ask a question to which one does not already know the answer—and probe the Minister about the relationship, about which I am slightly surprised, between the EU directive with which she seeks to comply, and the Council of Europe’s general prescriptions on human rights.
The Minister will be aware that the Council of Europe is the guardian of the convention on human rights, which is justiciable through the European Court of Human Rights in Strasbourg. That Court is often confused with the European Court of Justice, which will presumably hear any allegations of infractions under the asylum directive matter, although perhaps not in this case because of the amendments that the Minister is making. There is something of a constant turf war between those two organisations in the human rights field—the new Agency for Fundamental Rights sits within the EU—but the fact is that we are the begetters of that great concept, which was largely brought about by British lawyers. It is still important that there are two handles, not least because the membership of the Council of Europe is much more comprehensive. I will not go on about that, because it would be unfair to the Committee to do so, but at 47, Council membership extends to interesting and sometimes controversial countries such as Russia and—[ Interruption. ] Belarus is not permitted to be a member, but if we seek to influence good practice in such countries, it is important not only that we meet our own requirements—
Mrs. Betty Williams (Conwy) (Lab) indicated assent.
Mr. Boswell: I see that the hon. Lady agrees. It is important, too, that we have a basis for any claims that we wish to make against them for failures in procedure.
The orders themselves are entirely sensible and unexceptionable. On the conditions of interpretation, I echo the remarks of the hon. Member for Somerton and Frome—indeed, I would have made the point he made whether or not he had made it. Interpretation is a duty to the court as well as to the individual concerned, and it is implicitly accepted that it will be provided not merely for the giving of evidence in cross-examination. It is important that the services of an interpreter should be available in the interests of justice. As I see it, the commission will decide what is, or is not, necessary. It is not clear whether there is any meta-stage at which its decision is appealable to another judicial body. I understand the Minister’s frustration at the practice, as sometimes happens in asylum cases, of extremely extended appeals and people finding yet another round of things about which they can complain. I am not seeking to canvass opinion, but it should be firmly understood that the commission should act in the interests of justice—that should be the main determinant and I do not think that there will be difficulty about that.
I picked up the concerns of the hon. Member for Somerton and Frome about stakeholder consultation—we human rights buffs must stick together. Although I have no objection to the Bar Council and the Law Society acting, as it were, as referees for the public interest, and although I have good reason not to be critical of the Treasury Solicitors—one of my family works for that august body, although I have not consulted her on this matter—I am a little concerned about the “closedness” of this matter, particularly the absence of any well-known lawyers or organisations that deal specifically with the rights of asylum seekers and others. That is not to produce a Dave Spart progressive agenda; we just need to balance things and always be sensitive about cases in which we trespass on someone’s liberty, even if there is good reason for doing so.
Those remarks, which are not designed to subvert my support for the orders, lead me to my conclusion. I still have some reservations about the SIAC procedure, which is not something that my party likes. I hope that we will all continue to bend our mind to introducing a better package that will deliver justice while maintaining national security. For what it is worth, my personal view is somewhat antipathetic to proscription, but I accept that it has been debated, Parliament has decided and we will not reopen the matter here. However, as the hon. Member for Tooting will know, because we have been involved in similar cases, I dealt with the case of a somewhat surprising constituent who was a member of an organisation that was in the frame for proscription. Although I never came to a conclusion on the merits of that case, I am worried about proscription, as membership of a proscribed organisation appears to be tantamount to the commission of an offence. On the practical side, I am worried about the danger that somebody who belongs to a proscribed body will immediately flit into an organisation that is not proscribed. If serial appeals are not the problem, serial membership, proscription and so on will be, getting us into a long caravan of difficulties.
I rehearse those “nots” about the orders not to subvert the powerful interests of national security, but simply to say—I know, from my previous dealings with the Minister that she will warm to this principle—that there will always be reservations on the side of the liberty of the subject and what is fair to the individual. We all need, in passing this sort of legislation, to bend over backwards to be as fair as the circumstances can possibly allow—no more than that—and may the orders pass on that basis.
5 pm
Bridget Prentice: First, may I thank the hon. Members for Epping Forest, for Somerton and Frome, and for Daventry for their support for the orders? I accept that the hon. Member for Daventry has reservations about SIAC and POAC. I know that a number of colleagues have such reservations, and it is a matter of getting the balance right when dealing with these issues. People constantly, and rightly, question whether the balance is right, and that is part of the reason why we are here today. The hon. Gentleman and the hon. Member for Somerton and Frome will know that I have advocated stakeholder consultation at every possible opportunity. By “stakeholder”, I usually mean anyone outside the legal system rather than within it. My defence for doing so is simple and straightforward, and I am sure that both hon. Gentlemen accept it. These are very technical procedural orders, and it was appropriate simply to discuss the matter with the people whom I listed. However, I absolutely take on board the principle of what they say, and in future I will ensure that someone from the consumer body, if I can put it like that, has a look at such measures, even if they are as technical as the orders.
Mr. Boswell: May I say, on behalf of what I have termed the human rights collective, that I am delighted by what the Minister has just said? I hope that her officials are too, but I think that she has taken the right approach. Let us go out and do that. It may not necessarily change her view, but it is important that people understand what she is doing. An open procedure is the best possible way of resolving such issues. The more consultation with responsible bodies that the Minister undertakes, the better, and we welcome what she said.
Bridget Prentice: I am grateful to the hon. Gentleman. I will not look across to my officials to find out whether they approve of the proposal or not. Most people in the House know that I wish to ensure that stakeholders are involved as far as possible.
The hon. Member for Daventry asked about seamless co-operation and delivery by the Home Office. We always strive for perfection, and we have worked very closely with the BIA on this EU matter. The BIA is reviewing the directive in the context of its rules and regulations, and it will introduce appropriate changes where necessary through its system.
Mr. Heath: Obviously, the Minister will not know the precise answer, because the agency reports to a different Ministry, but will that require secondary legislation? If so, will it be introduced by 1 December?
Bridget Prentice: The best that I can say is that, if changes are needed, they will be made to the immigration rules. That is done through secondary legislation, which would be the appropriate way forward.
The hon. Member for Somerton and Frome spoke about the narrowing of interpreters’ services. I want to assure him and the whole Committee that it is not a narrowing, and that in fact the appellant would have the services of an interpreter for the whole proceedings. It may be helpful if I read into the record the wording of the directive. Applicants shall
“receive the services of an interpreter for submitting their case to the competent authorities whenever necessary. Member States shall consider it necessary to give these services at least when the determining authority calls upon the applicant to be interviewed as referred to in Articles 12 and 13, and appropriate communication cannot be ensured without such services.”
I hope that that reassures the hon. Gentleman and the hon. Member for Daventry.
Question put and agreed to.
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment No. 2) Rules 2007.


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

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