Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013
The Committee consisted of the following Members:
† Blunt, Mr Crispin (Reigate) (Con)
† Brazier, Mr Julian (Canterbury) (Con)
† Burt, Lorely (Solihull) (LD)
† Cunningham, Mr Jim (Coventry South) (Lab)
† Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)
† Holloway, Mr Adam (Gravesham) (Con)
† Lefroy, Jeremy (Stafford) (Con)
Paisley, Ian (North Antrim) (DUP)
† Rotheram, Steve (Liverpool, Walton) (Lab)
† Scott, Mr Lee (Ilford North) (Con)
† Skinner, Mr Dennis (Bolsover) (Lab)
† Slaughter, Mr Andy (Hammersmith) (Lab)
† Stunell, Sir Andrew (Hazel Grove) (LD)
† Sutcliffe, Mr Gerry (Bradford South) (Lab)
† Turner, Karl (Kingston upon Hull East) (Lab)
† Vara, Mr Shailesh (Parliamentary Under-Secretary of State for Justice)
† Zahawi, Nadhim (Stratford-on-Avon) (Con)
John-Paul Flaherty, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Monday 25 November 2013
[Mr Andrew Turner in the Chair]
Draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): I beg to move,
That the Committee has considered the draft Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013.
May I say what a pleasure it is to serve under your chairmanship, Mr Turner?
The amendment provides for the extension of the current Special Immigration Appeals Commission rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act 1997 as a result of the Justice and Security Act 2013. This enables the Home Secretary to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on sensitive information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
The Special Immigration Appeals Commission was set up under the Special Immigration Appeals Commission Act 1997. It hears immigration and asylum appeals where there are national security issues and/or where sensitive information is involved which should not be made public: for instance in cases where intelligence is part of the evidence and that material cannot be released to the appellant or his representatives for fear of compromising sources or the UK’s national security. It has heard appeals under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists and currently hears appeals against deprivation of citizenship.
The Justice and Security Act 2013, which commenced in June, contained a number of provisions designed to control the disclosure during litigation of material which, if released, could be damaging to our national security. Section 15 of the Act amends the Special Immigration Appeals Commission Act 1997 to ensure that where the Secretary of State excludes someone from the United Kingdom, or refuses to naturalise them as a British citizen, on the basis of sensitive material, the appropriate place for that decision to be challenged should be the Special Immigration Appeals Commission.
Previously, any individual in this situation could apply to the High Court to set aside the decision. This was a far from satisfactory arrangement for two reasons. First, before the Justice and Security Act 2013, the High Court had no facility for closed material proceedings, otherwise known as CMPs. Even now the Court has only limited provision for them. Secondly, SIAC is the tribunal with greatest expertise in considering sensitive
national security cases as well as having expertise in immigration matters. Parliament therefore deemed that challenges to exclusions or citizenship decisions would be best heard by SIAC. In order for SIAC to entertain these new challenges, its procedure rules must first be amended and that is what we must turn our attention to now.The rules before us have been produced on behalf of the Lord Chancellor following a short period of consultation with several of the parties who best know SIAC. The list of consultees includes the Law Society, the Bar Council and, indeed, the sitting chair of SIAC. In the main, the amendments that the rules make simply confirm that all of the existing rules covering the kinds of appeal that SIAC has heard since its inception in 1997 now apply to the review of exclusion and naturalisation decisions. These are purely administrative changes, which establish the guidelines relating to time limits for seeking a review, submission of forms and so on.
The rules have a number of substantial effects. First, although SIAC uses closed material proceedings regularly, the 1997 Act allows this by providing that rules may make provision for closed material proceedings. Therefore, until these rules are passed it is difficult for SIAC to consider applications for review of exclusion or citizenship decisions fully. Secondly, these rules establish the obligations on the Secretary of State when disclosing material following an application for review of an exclusion or naturalisation decision. These disclosure obligations are slightly different from those attached to a conventional appeal, and new rule 10B makes that distinction. The difference derives from the fact that applications for review are to be decided on the principles applicable in an application for judicial review, and therefore the duty of candour represents the correct approach to disclosure. In contrast, appeals to SIAC are merits-based. SIAC does not simply review the Secretary of State’s decision, it makes its own. Therefore, a fuller disclosure process for appeals is required.
Thirdly, colleagues may wish to note that rule 29 amends rule 40 to give the commission the power, where appropriate, to reinstate an appeal or application for a review that had previously been struck out. That, I hope the Committee will agree, will benefit the interests of justice by ensuring that an appellant or applicant need not be punished for failure to comply with SIAC’s rules, when that failure was for reasons outside their control. Indeed, the change results from a judicial decision made by the president of SIAC in his recent judgment in a case known as R1, which can be found at paragraph 28 of the judgment in R1, dated 21 May 2013. That judgment can be found on SIAC’s website. I commend the rules to the Committee.
4.36 pm
Mr Andy Slaughter (Hammersmith) (Lab): It is a pleasure to serve under your chairmanship this afternoon, Mr Turner. I do not intend to speak at great length. We will not vote against these rules, but I wish to address one matter.
Mr Julian Brazier (Canterbury) (Con): Would the hon. Gentleman speak up?
Mr Slaughter: Of course. I know that Government Members hang on every word I say—[ Laughter. ]
It is not surprising that we will not divide the Committee, because the SIAC jurisdiction was introduced by a Labour Government. Whatever anyone’s view of it, it replaced a less satisfactory predecessor—the so-called “three wise men”. These rules will extend the SIAC jurisdiction.
They come out of a controversial piece of legislation, as the hon. Member for Canterbury will know, because he and I had some interesting debates on the Bill Committee. The Opposition took strong exception and objection—as I still do—to some parts of what is now the Act. However, we did not spend a lot of time opposing section 15, which allowed these rules to be created. It is right that the SIAC jurisdiction is extended, and it is right—it is becoming a regular practice with this Government—that SIAC moves from judicial review into an area of some other legal remedy or form. It is appropriate that there are safeguards, and the Minister said that there will be. He said that these changes are in part procedural—the rules will simply make SIAC, rather than the High Court, the appropriate forum. The Minister mentioned rule 10B, and said that rules that apply in judicial review cases will apply here as well. Again, so far, so good—perhaps I should say “so adequate”; let us not be too enthusiastic.
However, I ask the Minister to consider two points—or one point in two parts. He has had some notice of this matter, because it has been discussed in the other place. During that debate, my noble Friend Lord Beecham extracted from Lord McNally the view that 60 cases are effectively being held up as applications for judicial review. One can only assume that they have been deliberately held up to follow the SIAC procedure. There was no response on that occasion. Perhaps the Minister is now in a position to say whether that is the case and how the Government intend to proceed with those 60 cases. Have they been put in a queue and will they now be certified for SIAC rather than in the High Court? Are there any consequences of that?
Since the debate in the other place, we have had the Court of Appeal judgment in the Ignaoua case. If you will indulge me, Mr Turner, I will read two paragraphs from the judgment, because they identify what is either a mistake in the rules or a matter that the Government need to address. The judgment of Lord Justice Richards, with which the Master of the Rolls and Lord Justice Sullivan agreed, asked:
“Was the certificate effective lawfully to terminate the judicial review proceedings?”
That is, where the Secretary of State applied for a certificate and effectively sought to terminate judicial review proceedings. This is before the rules come into effect, but I will explain why it is still relevant in a moment. Paragraph 19 of the judgment, says:
“Article 4(3) of the 2013 Order provides on its face that the effect of a certificate under section 2C(1)(c) of the 1997 Act in respect of an exclusion direction made before 25 June 2013 is automatically to terminate any existing judicial review proceedings which relate to that direction. If that is indeed the legal effect of such a certificate, it is a truly remarkable result, since it puts in the hands of the Secretary of State, as a party to (indeed, a defendant to) judicial review proceedings, the power to bring about the termination of those proceedings by her own act and without any intervention by the court; and to do so irrespective of the stage that the proceedings have reached, whether at first instance or on appeal. Mr Phillips”—
the counsel to the Secretary of State—
“accepted in argument that such a provision would be “most unusual” – he could not point to any equivalent – and that very clear language was required to show that this was Parliament’s intention. But he submitted that the statutory language was clear and that Parliament can be seen to have intended this result.”
The Court found that the language was not clear and found for the appellant in those matters.
The judgment might already be a matter of history, in the sense that the certificate was issued before the rules took effect, save that paragraph 24 says:
“In relation, therefore, to an exclusion direction made and certified after the commencement day (a direction to which the transitional provisions of paragraph 4 of schedule 3 do not apply), the statute does not preclude an application to the court by way of judicial review. In practice, once the relevant SIAC procedural rules are in force, it is likely that judicial review will be perceived as a less attractive or appropriate option than an application to SIAC under section 2C of the 1997 Act, especially in the light of the observations of Ouseley J in R (AHK) v Secretary of State for the Home Department [2012] EWHC 1117 (Admin), in particular at paras [57]-[64], as to the impossibility or improbability of a claimant succeeding in a judicial review of this kind in the absence of a closed material procedure. In any event, the court itself is likely to refuse permission for judicial review in such a case on the ground that an application to SIAC provides an appropriate alternative remedy. That, however, is a discretionary decision for the court in the light of the circumstances of the individual case, and a different view might well be taken where, as has been the position to date, the relevant SIAC procedural rules are not in force and SIAC does not therefore offer an effective alternative. But the important point, irrespective of how the court’s discretion might be exercised, is that the 2013 Act does not purport to remove the court’s jurisdiction to entertain a judicial review application in relation to an exclusion direction made and certified after the commencement day.”
In the light of that judgment, will the Minister confirm that it remains possible to make an application for judicial review and that it remains in the discretion of the Court as to whether that application will be allowed or whether, because of the availability once the rules take effect, there will be an alternative remedy? That does not seem to be the Government’s intention. I return to the point about the 60 cases. The Government’s conduct so far seems to say that they wish summarily to shunt off any matters that could previously have gone before the High Court, notwithstanding that closed material procedures may now apply within the High Court, into SIAC and to allow no avenue or opportunity for judicial review proceedings to continue.
The judgment from which I just read says that there will be cases in which at least that application can be made. I do not expect the Minister to address that judgment, although it was last Thursday and I am sure that his officials have had time to read it since then, but I do expect him to address the point raised by Lord Beecham.
Within this controversial and evolving jurisdiction and controversial legislation, we have not been troubled by section 15 of the Act in the same way as by the wholesale extension of closed material procedures to civil jurisdictions. However, as these matters are sensitive, it is only right that we look closely at how the Act itself and the rules operate. It appears that there are unintended consequences to what the Government have set out to do. I will leave it at that, although I will intervene on the Minister if something is still not clear. If there are matters that are still not clear or are under discussion, I would be grateful to have those matters made clear in writing.
4.46 pm
Mr Vara: I thank the hon. Member for Hammersmith for his supportive comments. I am pleased to see that we will not be voting on this issue. I note the queries that he raised and will happily come back to them later.
This debate has been helpful in identifying and addressing the serious concerns of many. Doing so has enabled me to put on record why the Government need to amend the procedure rules for the Special Immigration Appeals Commission so that decisions by the Secretary of State should be challenged at SIAC rather than in the High Court. As SIAC is the tribunal with the greatest expertise in considering sensitive matter or security cases, as well as having expertise in immigration, Parliament certainly believes that challenges to exclusions or citizenship are best heard by SIAC.
The hon. Gentleman referred to 60 cases. Those were stayed by the High Court. The Secretary of State has decided in principle to certify them, and it will be for the High Court to decide whether to terminate the judicial review proceedings so that they can proceed in SIAC. As far as the Ignaoua case is concerned, I can say that the High Court can decide whether to accept a judicial review. The Government have not appealed Ignaoua, which I hope I have pronounced correctly.
The Home Secretary is already able to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on information that should not be made public in the interests of national security or
otherwise in the public interest. Those procedure rule amendments extend the current SIAC rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act 1997 as a result of the Justice and Security Act 2013. They now confirm that all the existing rules also apply to reviews of exclusion and naturalisation decisions.Although SIAC uses closed material procedures regularly, until the amendments to the rules are passed, it will be difficult for SIAC to consider applications for review of exclusion and citizenship decisions. The rules also establish the obligations on the Secretary of State when disclosing material following an application for review of an exclusion or naturalisation decision.
The rules also give the court the power to reinstate an appeal or application for review where it has been struck out. That benefits justice by ensuring that an appellant or claimant is not punished for failure to comply with SIAC’s rules when the failure was beyond their control.
As I have already set out, there is an urgent need to affirm the rules as, until that happens, SIAC will not be able to progress applications for review to conclusion. I therefore invite Members to approve the rules.