Clause
58
Rules
of court about
disclosure
Mr.
Hogg:
I beg to move amendment No. 215, in
clause 58, page 41, line 19, after
‘that’, insert
‘provided that the person
appointed as the special advocate is present at the consideration of
the
application,’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 227, in
clause 59, page 42, line 12, leave
out ‘may’ and insert
‘shall’.
No.
218, in
clause 59, page 42, line 18, after
‘excluded’, insert
‘including the consideration of
the application referred to in section
58(3)(a)’.
Mr.
Hogg:
I will speak primarily to amendment No. 215.
The clause enables rules to be made about disclosure. I have already
pointed out how far-reaching the withholding of relevant information
can be. That being so, it is extremely important that someone who has
some regard for the interests of the affected person should be present,
especially as subsection (3)(a) states that the rules of court must
secure
“that the Treasury
have the opportunity to make an application to the court...not to
disclose material otherwise than to...the court, and...any
person appointed as a special advocate”.
Subsection (3)(b)
states:
“such
an application is always considered in the absence of every party to
the proceedings (and every party’s legal
representative)”.
Those
rules might preclude the affected person or their legal representative
from being present at an application. That could have a dramatic effect
on the nature of the material that will be presented to the
affected person down the track. Who will represent the interests of the
affected person at that point? The Minister will no doubt say that the
special advocate will, and that is precisely what my amendment
says.
Mr.
Grieve:
I agree with my right hon. and learned Friend that
the wording of clause 57(4) could, strictly speaking, despite the
comments of the hon. Member for Somerton and Frome, allow everyone to
be excluded from the proceedings. However, it seems to me that the
special advocate is not a party to the proceedings. I find the wording
of clause 58 odd, and I think that my right hon. and learned
Friend’s amendment would make an important clarification, but I
would not read clause 58(3)(b) as precluding the presence of the
special advocate at the application.
Mr.
Hogg:
I agree with my hon. and learned Friend. It does
not, but it does not require that either. I tabled amendment No. 215
because I think it essential that the special advocate’s
presence is ensured. I agree entirely with my hon. and learned
Friend’s interpretation. That being so, the question is whether
we should make it mandatory that the special advocate should be
present. I believe that we should, for the reasons that I have
outlined. The Bill may permit that, but I want it to be mandatory.
That, perhaps, is the only difference between my hon. and learned
Friend and me. The Minister might well assert that the special advocate
will be present under the rules of the court, in which case I say: let
us put it on the face of the Bill.
Mr.
Heath:
Is it the right hon. and learned Gentleman’s
view that the Treasury representative is present at that
consideration?
Mr.
Heath:
I am not clear. It seems to me that the Treasury is
a party to the
proceedings.
Mr.
Hogg:
The hon. Gentleman is quite right, but if he is good
enough to look at clause 58(7), he will find
that
“references to a
party to the proceedings do not include the
Treasury”.
The Treasury
representative is there. The person who is not there, and who cannot be
there, is the affected person or his personal representative. Nothing
says that the special advocate must be there, and that is what I wish
to
achieve.
4.36
pm
Sitting
suspend
ed for a Division in the
House.
4.51
pm
On
resuming—
Mr.
Heath:
The right hon. and learned Member
for Sleaford and North Hykeham has a point here—the special
advocate should be present when an application is considered. I accept
that the fact that there is no provision for it, but that he or she is
not excluded leaves
open whether or not he or she is there, but the Treasury is inevitably
party to the application because it is the Treasury that is making the
application. Under any normal arrangement, the special advocate ought
to be there and there should be specific provision for that in the
Bill. I hope that the Minister will accept that principle and, if he
cannot accept the amendment, at least make it clear that that is the
intention in the rules of court that he intends to bring forward and
which we will see before
Report.
Mr.
McNulty:
I am sorry to disappoint
because we are where we are, as we were with the last set of clauses. I
have not asserted that this will be in the rules of court; I have given
the Committee an assurance that it will be. If we are serious in our
deliberations to achieve some consistency across our primary
legislation, this is lifted almost entirely out of the primary
legislation provisions relating to the SIAC, POAC or control orders.
There will be the references that the hon. Gentleman requires in the
rules of court, and I do give that assurance. That, with the belt and
braces approach in subsection 6—nothing in the section or the
rules of court made under it is to be read as requiring the court to
act in a manner inconsistent with article 6 of the human rights
convention—achieves the fairness point on which we all agree.
However I do want it to reflect and be consistent with other
legislation. That is the only reason for the
configuration.
Mr.
Grieve:
I appreciate the
Minister’s point, and it is a fair one, about co-ordinating with
other legislation, but I have to say that including amendment No. 215,
tabled by my right hon. and learned Friend the Member for Sleaford and
North Hykeham, does make perfect sense. There is an oddity about the
way the original legislation was drafted. I accept the
Minister’s assurances and it is a minor matter, but if my right
hon. and learned Friend presses amendment No. 215 to the vote, I will
support him because I do not think that I get carried away with the
absolute necessity for these two forms of legislation to be identical.
The regulations being identical may actually matter rather more and I
would assume that they would still be identical. It is an oddity and I
think it probably reflects, not a drafting error, but a tendency of the
original drafter to short-cut slightly. It seems abundantly plain that
the special advocate has to be present.
Mr.
McNulty:
I take the point that it is a
relatively minor drafting issue, but that the substance of it is
serious. I do not dispute its serious nature. For example, for control
orders, the provisions for the presence of a special advocate at the
application hearing appear not in the Terrorism Act 2006, but in the
rules made under it—now part 76 of the civil procedures
rules.
I
am not a seeker of consistency purely to compound a previous drafting
error. I take the point about the greater degree of eloquence and
clarity—to say the least—in the amendment, but that does
not mean that I will accept it. I am happy, however, to reconsider the
matter on Report. Certainly the important and substantive point, on
which we all agree—that the special advocate should be in the
room—was well made. As I said, I shall reconsider the matter in
relation to the Prevention of Terrorism Act 2005 and other legislative
frameworks. If the amendment would work, and it is in order, I shall
return with something similar, to put in the Bill, rather than in rules,
something on which we all agree. I am more than happy to give the
assurance—not an assertion—that I am prepared to do
that.
Mr.
Hogg:
It would be churlish of me not to
acknowledge and welcome what the Minister has said, and on that basis I
shall not press the amendment to a vote. However, may I say that his
remarks rather indicate the importance of putting in the Bill the
requirement reflected in amendment No. 215? When enacting legislation,
we look back to past legislation, as he has done. He pointed out the
previous legislation making provision for the special advocate, and
remarked that it did not make provision for the presence of a special
advocate in counterpart circumstances. I suspect that this will not be
the final terrorism Bill to be considered by this House, and in future
Bills I want the Committee to be able to say, “Well, in the
Counter-Terrorism Act 2008, special provision was made for the presence
of the special advocate in counterpart situations, so we shall do the
same.” We build by precedent, so I want to say something to that
effect in the Bill. However, he has been gracious enough to say that he
will think about it, so I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Question
put, That the clause stand part of the
Bill.
The
Committee divided: Ayes 11, Noes
1.
Division
No.
7
]
Question
accordingly agreed to.
Clause 58 ordered to stand
part of the
Bill.
Clauses 59
to 61 ordered to stand part of the
Bill.
5
pm
Clause
62
Initial
exercise of powers by Lord
Chancellor
Mr.
Grieve:
I beg to move amendment No. 209, in
clause 62, page 44, line 1, leave
out subsection
(3).
The
Chairman:
With this it will be convenient to discuss
amendment
No. 222, in
clause 90, page 59, line 34, leave
out from ‘proceedings)’ until end of subsection and
insert
‘shall not come
into effect until the rules of court have been approved by a resolution
of each House of Parliament as provided for in section
62(4).’.
Mr.
Grieve:
Clause 62 is about the initial exercise of powers
by the Lord Chancellor. It explains that the Lord Chancellor may
exercise his powers by making rules of court. Subsection (3)
states:
“The
requirements of subsection (2)(a) and
(b)”,
which relate to
consultation with the Lord Chief Justice of England and Wales and the
Lord Chief Justice of Northern
Ireland,
“may be satisfied
by consultation that took place wholly or partly before the passing of
this Act.”
I would like
some clarification from the Minister. Am I to assume that the
consultation has already taken place or that it will take place before
the Act comes into force? Or should I assume that, in fact, there is no
consultation because it took place when the rules of court were brought
in for control orders? It will be useful for the Committee to know
that. In addition, amendment No. 222 requires the resolution of both
Houses of Parliament before any rules of court are brought into
effect.
Mr.
McNulty:
Under the Bill, the
asset-freezing provisions come into force at Royal Assent. Therefore,
if the amendments are accepted, we will have a period in which the
rules of court will not have been consulted on or agreed but the
personal parts of the Bill will be in force, which is clearly not
appropriate. As the provision says, we need to have a full and
substantive consultation. None the less, it is highly desirable that
the rules of court, which are made under clause 62 and the contents of
which are provided for in part by clauses 57 and 58, should have effect
as soon as possible after part 5 of the Counter-Terrorism Act comes
into force. That is because the rules of court will set out the
procedure which is to apply to the appointment of the special advocate,
for which provision is made in clause 59.
As the hon. and learned Member
for Beaconsfield said, part 2 states clearly that we should properly
consult with the Lord Chief Justice of England Wales on the rules
applicable in England and Wales, and the same for Northern Ireland.
That is right and proper. It is simply a matter of timing so that we
have the consultation on the rules of court taking place at the same
time as we bring in part 5. The notion of part 5 commencing before the
rules of court are in place is inappropriate. The notion that there
should be any delay in the implementation of part 5—contiguous
hopefully with Royal Assent—would be unfair to the individuals
concerned. Therefore, it is a matter of timing. We want as much
consultation as possible, but we want to do it in a timely
fashion.
Mr.
Heath:
I understand entirely what the Minister is saying,
but he has created a bit of a conundrum here. If the commencement is at
the point of Royal Assent, and the proceedings cannot take place
without rules of court, the Lord Chancellor is under a duty that
applies before consent is given to the Act. That is a very odd thing to
put into legislation; a duty that must have been fulfilled before the
Bill is an Act in order to apply the duty to the Lord Chancellor. Does
the Minster accept that that is a slightly topsy-turvy, Humpty-Dumpty
way of making a
decision?
Mr.
McNulty:
I shall not delay the Committee in the context of
whether I think it is topsy-turvy, Humpty-Dumpty or any other such
provision. The key purpose is that part 5 should come into effect as
soon as is
practicable—at Royal Assent for example. We have just discussed
how the asset-freezing provisions can impact very directly on
individuals.
To answer the
hon. and learned Member for Beaconsfield, there has been a good deal of
consultation within the relevant Departments, but not yet with the
Lords Justices of Appeal in respect of England and Wales and Northern
Ireland, because the draft is not in that sort of shape yet. Yes, that
consultation has to happen and, yes, Parliament must deliberate on the
matter as well. I assure the Committee that it is only a matter of
time.
We should
consider the import of the direct effect on individuals of the
provisions set out in part 5, notwithstanding the hon. and learned
Gentleman’s earlier point about what may or may not happen in
terms of the appeal while the Bill travels gently through both Houses
of Parliament. Things may be topsy-turvy and Humpty-Dumpty, but I
thought that all hon. and hon. and learned Members had agreed that,
given the import of the effect that the provisions will have on an
individual—they can be extensive and serious—the sooner
the measure is in place with a special advocate apparatus around it,
the better for all
concerned.
Mr.
Grieve:
If I were being slightly
naughty—and I shall be—I would gently say to the Minister
that there must be a cost involved in this consultation. If the
consultation takes place and, for whatever reason, the Bill never gets
on to the statute book, money will have been wasted. I appreciate the
Minister’s point, but there is an anomaly about providing a
mandatory requirement on the Lord Chancellor to do something that only
becomes mandatory when the Bill is enacted, although he will have done
it before it all happens. This is not the first time that we have
encountered such anomalies. I dare say that, if we changed the rules so
that Ministers had to pay out of their own pockets for any money wasted
as a result of a Bill not being enacted, this practice might
cease.
I am pleased to
hear that there will, at least, be consultation on the provisions that
we are talking about. It is not deemed, as I thought might be the case,
that the previous consultation would be sufficient. On that basis, I
beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
62 ordered to stand part of the
Bill.
Clause 63
ordered to stand part of the
Bill.
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