 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism Bill |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeTuesday 13 May 2008(Afternoon)[Mr. Edward O'Hara in the Chair]Counter-Terrorism BillClause 57General
provisions about rules of
court
Amendment
proposed [this day]: No. 213, in
clause 57, page 40, line 26, at
end insert—
‘(c) the need to
ensure that the manner in which the proceedings are conducted is fair
to every party to the proceedings.’.—[Mr.
Hogg.]
4
pm
Question
again proposed, That the amendment be
made.
No. 207, in
clause 57, page 40, line 29, leave
out paragraph (b).
No.
214, in
clause 57, page 40, line 32, leave
out subsection (4).
No.
208, in
clause 57, page 40, line 33, leave
out paragraph (a).
No.
216, in
clause 58, page 41, line 23, after
‘interest’, insert
‘and that the withholding of the
material would not cause injustice to a party to the
proceeding,’.
No.
225, in
clause 58, page 41, line 25, leave
out ‘consider requiring’ and insert
‘require’.
No.
217, in
clause 58, page 41, line 30, after
‘interest’, insert
‘and is sufficient to ensure that
the conduct of the proceedings will be fair to all parties to those
proceedings.’.
No.
226, in
clause 58, page 41, line 30, at
end insert—
‘(f) material
which supports the case of a party to the proceedings may not be
withheld from a party to the proceedings or from that party’s
legal represenative and material which adversely affects the
Treasury’s case may not be with held from any party to the
proceedings or their legal
representative.’.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
I was going to say, but you
spotted it, Mr. O’Hara, that I would seek to resist
the amendment—and then sit down. I might have got away with that
another time.
I rise to
answer the debate on amendment No. 213. As I said earlier, special
advocate procedures are available in other contexts, notably the
Special Immigration Appeals Commission and the Proscribed Organisations
Appeal Commission. The general objective is to keep the special
advocate provisions in the Bill as close to those existing procedures
as possible. The clause reflects corresponding powers in the SIAC and
POAC provisions—for example, paragraph 5(c) to schedule 3 to the
Terrorism Act 2000.
As I
indicated, it might be useful if we spoke in more general terms about
asset freezing as it is now. In that context, unless the Committee
needs greater clarification, I am happy to forgo my contribution to a
clause stand part debate.
The Committee
will know that asset freezing aims to help prevent terrorist acts by
preventing funds, economic resources or financial services from being
used or diverted for terrorist purposes. The clause reflects the fact
that the United Kingdom does that in accordance with United Nations
obligations. The police and security services have noted the positive
disruptive impact that asset freezing can have, and have made it clear
that the regime is essential for counter-terrorism
operations.
In a document
published in February 2007 by the Home Office, the Treasury, the
Serious Organised Crime Agency and the Foreign and Commonwealth Office,
entitled “The financial challenge to crime and
terrorism”, we noted that the Treasury had agreed on the advice
of the law enforcement agencies to use closed-source evidence in asset
freezing cases if there were strong operational reasons to impose a
freeze but insufficient open-source evidence was available. The
document stated:
“In order to ensure the
fairness of any court challenge to the imposition of a freeze, the
Government will introduce a procedure for the appointment of special
advocates to represent the interests of the applicant in respect of the
closed evidence”.
It
should be noted that the Bill’s provisions are not about the
Treasury’s decision to freeze a person’s assets; they
deal with subsequent challenges by the designated person or another
affected person to that decision or a related licensing
decision.
With regard
to some of the concerns expressed this morning, these are enabling
powers. As such, they should be drafted broadly, with the rules of
court giving the details. However, I assure the Committee that the
provision has been drafted to ensure that all cases are dealt with in a
consistent and fair manner, with regard for the rights of the appellant
and the Government’s need to withhold material in the interests
of national security.
The amendments
seek to make provision for a level of detail that is not appropriate to
be included in the Bill. Many of the concerns are about the detailed
operation of the system. In general, I support the underlying concerns
for protection and fairness for all parties. Those will be addressed in
the rules of court, which will be put to Parliament for approval. I
hope that the Committee understands that the vagaries of time do not
allow me to say absolutely, but as I have said about assorted codes of
practice and other secondary matters that follow on from the Bill, I
hope to make the draft rules of court available before
Report.
It may be
stating the obvious, but I want to clarify the meaning of certain
provisions. First, the words “in the absence of” a party
or a legal representative of that
party in clause 57(4)(b) exclude the designated person and his open
advisers. However, they do not exclude the special advocate, who is
appointed to represent the interests of an excluded party in exactly
those circumstances. Earlier references to the designated person or his
agent—in this case, the special advocate—not being able
to be at the closed session are not accurate. They were not a part of
the process as I understand it. The interests of the designated party
were absolutely excluded from the
proceedings.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I am sure that
I will be shot down in flames and corrected, but my reading of clause
57(4)(b) is thus:
“enabling the court to conduct
proceedings in the absence of any person, including a party to the
proceedings (or any legal representative of that
party);”
Does that not
mean that the lawyer for the party would be excluded from that
hearing?
Mr.
McNulty:
But not the special advocate—that is the
whole point. The whole purpose of the special advocate provision is to
have the advocate in the room during those nominally ex parte
proceedings, given that the legal representative and the designated
person are excluded. That is the whole purpose of the special advocate
process.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I do not
like to disagree with the Minister but
in
“enabling the court to
conduct proceedings in the absence of any
person,”
“any
person” actually includes the special advocate, unless that
phrase is so constructed that it does not include the special advocate.
As drafted at the moment, the rules could exclude the presence of the
special
advocate.
“references to a party’s
legal representative do not include a person appointed as a special
advocate.”
With
respect, in relation to the provision that the right hon. and learned
Gentleman just
read,
“enabling the court
to conduct proceedings in the absence of any person, including a party
to the proceedings (or any legal representative of that
party)”,
subsection (5)(b)
quite deliberately puts a special advocate outside the definition of
the individual’s legal
representative.
Mr.
Dominic Grieve (Beaconsfield) (Con): I hope that I can
help my right hon. and learned Friend the Member for Sleaford and North
Hykeham. I disagree with the Minister: I appreciate his point that a
special advocate is not the legal representative of a party, and that
the advocate’s appointment is independent of the court. However,
my reading of subsection (4)(b) is that it enables the court to conduct
the proceedings in the absence of any person. That, on the face of
it—although it might be a bit far-fetched—would appear to
allow the court to conduct its proceedings with nobody present at
all.
“in the absence of
any person, including a party to the proceedings (or any legal
representative of that
party);”
I read that as
going further than just excluding parties to the
proceedings.
Mr.
McNulty:
No, because in part, this has to be read with the
rules of court, which subsection (6) picks
up.
Mr.
Heath:
Far be it from me to come to the assistance of the
Minister but I read it differently, because I am reading in the context
of the
statement:
“Rules
of court may make
provision”.
That is the
crucial part. It is a permissive power, but to exclude any person. That
does not necessarily mean that it excludes all
persons.
Mr.
Hogg:
We do not know what the rules will do. That being
so, we have to interpret the Bill as it is currently before us.
Subsection (4)(b) refers
to
“enabling the court to
conduct proceedings in the absence of any
person”—
pausing
there, “any person” includes a special
representative—
“including a party to the
proceedings (or any legal representative of that
party)”,
that is, the
affected person. But nothing in the Bill provides that the special
advocate is not caught by the phrase “any
person”.
Mr.
McNulty:
Well, the very next paragraph does precisely
that. Subsection (4)(c) says that the rules of court may make
provision
“about the
functions of a person appointed as a special
advocate”
That interlocks
with subsection (6). It is necessary to put them all together. As I
said at the beginning, I shall make it very clear that the draft rules
should be available to the House before Report. The right hon. and
learned Member for Sleaford and North Hykeham falls into the trap of
isolating a clause without looking at all the interlocking parts both
in and across clauses, which is easily done but should not really be
done by such a learned and experienced
gentleman.
Mr.
Grieve:
This may be an exercise in semantics and I do not
want to get bogged down in a debate that might be somewhat academic.
However, on this subject I must say that I happen to agree with my
right hon. and learned Friend the Member for Sleaford and North
Hykeham.
Granted
everything that the Minister has said about special advocates and the
fact that they are not one of the parties to the proceedings, the power
to exclude any person, as I read it in subsection (4)(b), appears to
give the tribunal a power—which might be derived from the
previous rules about the Special Immigration Appeals
Commission—to conduct proceedings without anybody present at
all. The fact that there may be other
rules,
“about the
functions of a person appointed as a special
advocate”,
or all the
other matters in that subsection does not prevent the ability to remove
everybody from the court proceedings entirely.
[
Interruption.
] The hon. Member for Somerton and
Frome says from a sedentary position that that is not right. If he can
show me something within the text that persuades me of that, I will
happily give way to him.
The
Chairman:
Order. If there is going to be a dialogue of
interventions, they should come from a standing
position.
Mr.
Heath:
I am sorry, Mr. O’Hara; I am now
standing and I can intervene on the Minister, because he is the one who
is speaking. I could not intervene before, although I was invited to do
so.
We are making a
mountain out of a molehill here. Yes, the rules of court could make
provision in exactly the way that the hon. and learned Member for
Beaconsfield and the right hon. and learned Member for Sleaford and
North Hykeham say. It is open to the interpretation that
“any” could mean “all” in the context of
the rules of the court. Subsequent clauses make it clear that that is
not the intention; the Minister is right in saying that.
However, I do not think that one
can read “any” as necessarily meaning “all”
in this context. It is a permissive power within the rules of court,
and it would be for the rules of court, not the tribunal, to determine
that. The Minister could usefully avoid the ambiguity in a later draft,
but I do not think that it necessarily means what the hon. and learned
Member for Beaconsfield says that it
means.
Mr.
McNulty:
I appreciate that this discussion is not entirely
about semantics, given that we do not have the rules of court in front
of us. However, I give the assurance that the interpretation as made
will not happen. I grant that the interpretation was not made wilfully;
although some of us struggle with the legalese, I take that view rather
than the stricter version. It will not happen that the party will be
denied a special advocate and this measure is drafted so that the
special advocate is in the room rather than otherwise; that is the
whole purpose of having the special advocate there.
However, I accept that
that is difficult to ascertain on trust from me, without our having the
rules of court in front of us. I therefore assure the Committee that I
will try to ensure that that happens before Report. Anyway, there will
be a subsequent parliamentary procedure on the rules of court; if
people remain dissatisfied, they can react
accordingly.
Secondly,
regarding the words in subsection
(4)(a),
“without full
particulars of the reasons for the decisions to which the proceedings
relate being given to a
party”,
they
mean that the party and their own advisers will not be informed of the
reasons, but they do not mean that the special advocate appointed to
represent the party’s interests will not be informed of them. On
the contrary, the special advocate will be informed of those reasons
and will have an opportunity to make representation to the judge in the
interest of the excluded party.
The Treasury
notifies individuals of the reasons behind their designation, as far as
possible. Where closed-source material has been used to inform a
designation decision, it might not be in the public interest to
disclose that.
However, to the extent possible, given the requirements of national
security—as in other such constructions—a gist will be
provided.
The point of
the special advocate regime, however, is to create a structure in which
the court, in hearing a challenge, can consider material that cannot be
openly disclosed, and can do so in a way that preserves to as great a
degree as possible the fairness to the designated person. However, it
necessarily involves withholding certain material from that person, for
reasons of national security; if that were not so, there would be no
need for a special
advocate.
The structure
of the scheme and the provisions are very closely modelled on schedule
3 to the Prevention of Terrorism Act 2005, which set up the special
advocate regime, as the hon. Member for Somerton and Frome suggested,
for control orders. That regime was recently considered by the House of
Lords Judicial Committee in the case of MB. Subject to one amendment,
which is reflected in clause 58(6) of the Bill, the structure was held
to be fully compliant with article 6 of the European convention on
human rights. In the Bill, we have sought to replicate, virtually
identically, the provisions in the Prevention of Terrorism Act 2005.
One addition to the Bill is clause 58(6), which expressly recognises
the relevance of the right to a fair hearing under article 6 of the
European convention on human rights.
As hon. Members will be aware,
there is no special advocate regime for asset freezing—otherwise
we would not have the present clauses. That means that it is not
possible to rely on evidence that cannot be disclosed openly, unless
the judge uses his inherent discretion to appoint a special advocate on
an ad hoc basis. We seek merely to formalise that
arrangement.
4.15
pm
In
the only case of this nature to have come to court so far—A, K,
M, Q and G v. HM Treasury—the judge did not feel that he
had such discretion. He felt that such discretion arose only where the
need for a special advocate would be a rarity. In a situation such as
asset freezing, where it is clear that closed material will often be
relevant, it is for Parliament to impose such a scheme through
legislation, not for the judge to introduce one. That is what we are
doing these
provisions.
There might
be circumstances in which a hearing is not necessary or appropriate.
The draft rules indicate that all proceedings under this part of the
Bill must be determined at a hearing, except when the applicant
withdraws the application to set aside the asset freeze, when the
Treasury agrees to the asset freeze being set aside, when the appellant
withdraws an appeal, or when the Treasury consents to an appeal. In
those latter cases, a hearing will not necessarily be needed or
required, so we need a little flexibility to enable them to be disposed
of without a hearing.
Mr.
Grieve:
I am sorry to intervene on a slightly peripheral
point, but I hope that we will have a chance of dealing with it when we
look at the clause, because we have not touched on it. The clause is
procedural, but the Minister will be well aware that he has a problem
in relation to the power to seize assets under the United Nations order
in council. Was there any proposal to address that issue in the
Bill?
Mr.
McNulty:
No, in the sense that we are currently appealing
against that decision, so the position is very difficult. I cannot say
in absolute terms whether the appeal will have run its course by the
time that the Bill has completed its passage through Parliament, but I
will keep that under advisement. I will not give an absolute no, but I
am in the hands of the timing of the appeal process and, of course, its
outcome. I would not dismiss what the hon. and learned Gentleman says,
but we are really talking about formalising and improving the system as
it stands.
To return
to the point about how to dispose of cases that do not necessarily need
a hearing, we might well need an amendment that adds a phrase such as
“where both parties agree to proceed without a hearing”,
rather than making things compulsory, as at present.
Concern has
also been raised about the interests of a third party with a legitimate
claim on frozen funds. The Treasury may—and usually does, when
requested—grant licences to allow exceptions to the
prohibitions. Licensing is an integral part of ensuring that
asset-freezing measures are proportionate, while ensuring that funds
are not diverted to terrorist purposes. Licences also ensure that third
parties are not harmed by the asset freeze.
Where someone has a legitimate
claim to frozen money, the Treasury can grant a licence to allow
payment to be made. The third party will be able to bring a challenge
to court where they consider the Treasury’s refusal to grant a
licence unreasonable or inappropriate.
Mr.
Hogg:
The Minister is referring to the rights of possibly
innocent third parties. Is he saying that those will be dealt with in
the rules, or that something in the Bill provides for innocent third
parties to make an application to the
Treasury?
Mr.
McNulty:
No, I think that I am saying that that will be
duly reflected in the rules of court because it is part of the process
now.
Amendment No. 207
is not necessary. It would be more appropriate to preserve the
court’s discretion to determine whether a hearing is appropriate
and to avoid inappropriate wasteful hearings, notwithstanding my point
about cases where both parties agree not to proceed with the hearing.
We therefore resist the amendment, although we do not dismiss it
entirely.
Amendments
Nos. 208 and 214 would—quite rightly in the minds of those who
tabled them, I guess—delete some or all of clause 57(4), which
would entirely defeat the purpose of the asset-freezing provisions in
part 5. This part creates, by way of the appointment of a special
advocate to represent the interests of the applicant, a way in which
the Treasury can reveal to the court and to the special advocate closed
material on which it relies, but that it cannot, for reasons of
national security or public interest, make available more
widely—including to the applicant. I will therefore resist those
amendments.
Amendments
Nos. 213, 216 and 217 all relate to the protection of fairness, and I
agree with the right hon. and learned Member for Sleaford and North
Hykeham that it is very important that, in all disputes, the
proceedings are, and are seen to be, conducted fairly. Of course, I am
going to invoke article 6 of the European convention on human rights,
among other things. In a very recent
judgment—I think that it was made in October or November last
year—a similar special advocacy system was broadly afforded a
clean bill of health by the House of Lords. It was an overall judgment.
All sides sought clarity from it, although that was not forthcoming in
all regards—there was a little bit in it for everybody. The
amendments are not necessary for the protection of fairness for the
individual.
Amendment
No. 225 is a requirement to disclose adverse material. This too runs
counter to the whole premise of a special advocate system, which, at
its root, has a desire to instil as much fairness as possible in the
system. Amendment No. 226 refers to the proposed additional requirement
for material in support of the applicant to be disclosed, which, again,
runs counter to what we are seeking through the special advocacy system
and by trying to be as fair as possible to the designated
person.
In
summary, we think that putting the special advocate element in the Bill
is useful and substantially better than the system that prevails for
all concerned at the moment. It is rooted in law and systems that are
already in place under control orders, the Special Immigration Appeals
Commission and the Proscribed Organisations Appeal Commission. I
do not think that any of the amendments offer a substantial
improvement, and I urge that they all be
resisted.
The
Chairman:
Order. Before I call the right hon. and learned
Member for Sleaford and North Hykeham, it is quite clear that the
nature of this block of amendments is such that the Minister has said
all that he would need to say in the clause stand part debate, so I
will group that debate with this one. If, therefore, any member of the
Committee wishes to speak to that motion, now is the time to do
so.
Mr.
Hogg:
I understand that decision, Mr.
O’Hara, and make absolutely no complaint about it. May I say,
however, that I am very unhappy about the response that we have
received, and I am going to explain the reasons why over some little
length. To begin with, let us be absolutely plain that a special
advocate is a very imperfect procedure for guarding people’s
rights. A special advocate is not the personal representative of the
affected person; he has a special status. He may not reveal large
chunks of the evidence that is communicated to him. Consequently, he
cannot get the instructions of the affected person as to that material.
In substance, the special advocate’s duties are not owed to the
affected person, and that is why many special advocates have expressed
real concern about and dislike of the procedure. I have never served as
a special advocate, but I certainly understand why those who have
believe that the system is essentially
flawed.
Secondly, we
have been told that draft rules will be laid before the House on
Report. That may well be true, and I will welcome it. Let us remember,
however, that we cannot amend the draft rules. They will considered, I
think, under the affirmative procedure, but they may be either rejected
or accepted in whole. I dislike rules of such far-reaching consequence
being dealt with by statutory instrument, rather than in a
Bill.
It is important that the
Committee, and through it the wider public, understand how far-reaching
clauses 57 and 58 are. They will enable the maker of the rules to
publish rules that almost entirely in favour of the Treasury and bear
little relation to the interests of the affected person. As has been
pointed out, under clause 57(4), proceedings could take
place
“in
the absence of any
person”.
Perhaps that is
not the intention, but the special advocate could therefore be
excluded.
Evidence
will not have to be disclosed to the affected person; only a summary of
evidence will be required. In fact, the proceedings could be determined
without any hearing at all. No doubt all that is meat and drink to the
Treasury, but to an affected person it is pretty
ghastly.
Then we
examine the rules under clause 58 and find that the disclosure
provisions are such that the maker of the rules can, in effect, exclude
almost any material from the affected person. There are very few
safeguards in the Bill and my amendments are intended to redress that
balance. Amendment No. 213 would require the maker of the rules to
ensure that
“the manner in
which the proceedings are conducted is fair to every party to the
proceedings.”
I ask
rhetorically why on earth we cannot put that in the Bill. It seems to
me that that is the duty of every parliamentarian. Amendment No. 216
would require the maker of the rules to ensure
that
“the withholding of
the material would not cause injustice to a party to the
proceeding.”
Again, why on
earth are we not putting that in the
Bill?
Amendment No. 217
would require that a summary
be
“sufficient to ensure
that the conduct of the proceedings will be fair to all parties to
those proceedings.”
That
seems to be a basic requirement. Amendment No. 266 would require that,
in the event of proceedings,
the
“material which
supports the case of a
party”
may not be
withheld. My intention is that the Treasury should not be in a position
to withhold from parties to the proceedings material that undermines
its case or promotes that of the affected person. The Treasury does not
have to bring forward any freezing procedure if it is worried about the
nature of information or the means by which it has ascertained it. If
it does, it seems to me that some basic rules should be
observed.
The hon.
Member for Meirionnydd Nant Conwy made a perfectly fair point about
affected third parties. We are told that the rules will address that,
and let us hope that they do, but I cannot see why the Bill does not
address it. It is of fundamental importance. I shall not withdraw the
amendment. I shall press it to a Division, and the same will apply to
stand part. The clause is profoundly unsatisfactory and I am against
it.
Question put,
That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
10.
Division
No.
5
]
AYESNOES
Question
accordingly
negatived.
4.30
pm
The
Chairman
, being of the opinion that the principle of the
clause and any matters arising thereon had been adequately discussed in
the course of debate on the amendments proposed thereto, forthwith put
the Question, pursuant to Standing Orders Nos. 68 and 89, That the
clause stand part of the
Bill:—
The
Committee divided: Ayes 11, Noes
3.
Division
No.
6
]
AYESNOES
Question
accordingly agreed to.
Clause 57 ordered to stand
part of the
Bill.
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