Counter-Terrorism Bill

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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. Hogg: Yes.
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. 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 ]
Bailey, Mr. Adrian
Brown, Mr. Russell
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Heath, Mr. David
Heppell, Mr. John
McNulty, rh Mr. Tony
Reed, Mr. Jamie
Salter, Martin
Taylor, Ms Dari
Hogg, rh Mr. Douglas
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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