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Special Immigration Appeals Commission (Procedure) Rules 1998

8.2 p.m.

The Lord Chancellor (Lord Irvine of Lairg) rose to move, That the draft rules laid before the House on 2nd July be approved [40th Report from the Joint Committee].

The noble and learned Lord said: My Lords, the draft rules provide the necessary procedural framework for the new commission created by the Special Immigration Appeals Commission Act 1997. That Act, which received Royal Assent in December 1997, established new appeal arrangements for the small number of cases where the Home Secretary exercises his powers to deport or to exclude someone from the United Kingdom on national security grounds or for other public interest reasons.

The commission replaces a non-statutory advisory panel, known as the Three Advisers, which had existed for the previous 25 years. Its role had been to review the case against a person liable to deportation, and to advise the Home Secretary before he made a final decision. However, in 1996, the European Court of Human Rights found that the arrangements for

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challenging the Home Secretary's decision in cases involving deportation on national security grounds were in breach of the European Convention on Human Rights. The court's judgment followed an application by Karamjit Singh Chahal.

Mr. Chahal had been made the subject of a deportation order. As that decision had been made on national security grounds, he had no right of appeal against it, nor against the refusal of his claim for asylum. The case against Mr. Chahal was considered by the advisory panel. Then, having exhausted his domestic remedies, including judicial review, Mr. Chahal applied to the European Court of Human Rights.

The court found that the remedies available to Mr. Chahal did not comply with Articles 5(4) and 13 of the European Convention on Human Rights. Article 5(4) entitles a person to have the basis of his detention reviewed by a court. The advisory panel was not considered to be a court because, for example, individuals were not entitled to legal representation and it had no power of decision. On the other hand, the domestic courts were not in a position to review whether the decision to detain a person was justified on national security grounds.

Article 13 entitles a person whose rights under the convention are violated to an effective domestic remedy. However, the substance of the decision refusing Mr. Chahal's claim for asylum could not be considered either by the advisory panel or on judicial review.

By establishing the Special Immigration Appeals Commission, the Government are remedying the deficiencies identified by the European Court of Human Rights. In addition, it has given a right of appeal to the commission to those who are excluded from the United Kingdom in cases where European Community law is relevant--either because the person to be excluded is a European Economic Area national or because he is otherwise exercising his rights of free movement under the Treaty of Rome.

The commission is significantly different from the advisory panel. Its members are appointed by the Lord Chancellor, who also makes its procedural rules. Its decisions will be published and will be binding on the Home Secretary. It will also be able to deal with bail applications. The appellant will have the right to be represented. There will be a right of appeal from the commission to the Court of Appeal on a point of law.

Nevertheless, because of the need to safeguard highly sensitive material, the commission's procedures depart from what would normally be required to satisfy natural justice. It is for that reason, and because the procedures are not set out in detail on the face of the Act, that the Government decided that the rules should be subject to affirmative resolution.

During the passage of the Act, draft rules were made available to give a flavour of the procedures which were likely to be adopted. Since then, the draft rules have been developed and improved. Interested organisations and individuals have been consulted. Changes have been made as a result of their suggestions. The Government are indebted to those who responded for the care with which they considered the proposed procedures.

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The European Court of Human Rights acknowledged the need for safeguards in cases involving confidential material, and that what is needed is a remedy which is as effective as it can be, given the obvious risk to national security. The court commended the procedures adopted by Canada, which were drawn to its attention during the Chahal case. Those procedures were taken as a starting point, and we acknowledge our debt to Canada, but I believe that the rules before the House today offer even better protection to appellants because their interests will be more effectively represented.

The conflict in these cases is obvious. There is both a need to ensure that a decision is properly reviewed as well as a need to secure that information is not disclosed contrary to the public interest. I am satisfied that the rules satisfy both requirements.

The commission will have three members--a High Court judge, a legally qualified senior member of the Immigration Appellate Authorities and a member with knowledge of national security issues. As far as it is possible to do so, without disclosing confidential information, the appellant will be allowed to attend proceedings. Where he cannot, he will be given a summary of the case against him and the reasons for the commission's decision. If the case involves an asylum claim, the United Kingdom representative of the United Nations High Commissioner for Refugees will be treated as a party if he so requests.

The commission has to be able to exclude the appellant, his representative and the UNHCR representative, when it is considering confidential material, or an objection by the Secretary of State about the disclosure of material. Whenever that happens, however, the appellant's interests will be safeguarded by a special advocate appointed by the Attorney-General.

The special advocate will see all of the Secretary of State's material. He will be able to test it; for example, by cross-examining witnesses. He will be able to make representations to the commission; for example, about the material to be withheld from the appellant. He will not, however, be able to communicate with the appellant as a representative normally would. There is a risk of inadvertent disclosure through an apparently innocent remark. He will be able to apply to the Commission to seek specific information from the appellant.

The role of the special advocate is different from that envisaged in the draft provided during the passage of the Bill. Then, it was expected that he would act more as if he were counsel to the commission. We have now created a much more pro-active role on behalf of the appellant.

The Attorney-General will be invited to appoint a special advocate as soon as it becomes apparent that the appellant is likely to be excluded. For this to happen at the earliest possible stage, the rules require the Secretary of State to notify the Attorney-General that he intends to object to material being disclosed to the appellant. This brings me to one of the most significant changes made following the consultation exercise.

The special advocate and appellant will not have a traditional 'client-representative' relationship. However, during consultation, respondents suggested that, before

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he sees confidential material, the special advocate ought to be able to communicate freely with the appellant. We have adopted that suggestion. We have imposed on the Secretary of State the requirement to notify the Attorney-General of the potential need for appointment of a special advocate at the time he decides to oppose the appeal. In that way, the special advocate will have the maximum time possible to communicate freely with the appellant. Once he has received the Secretary of State's material, the special advocate's access to the appellant will be restricted, but he will be able to apply to the commission for authority to seek information, in connection with the proceedings, from the appellant or his representative.

There is one further point to which attention should be drawn. If the Secretary of State objects to the disclosure of material to the appellant, the commission may overrule that objection. The Secretary of State will not be forced to disclose this material provided he does not then rely upon it in opposing the appeal. As in any case in the courts, the commission will ignore entirely any material it has seen but which is subsequently withdrawn.

Inevitably, the rules have to underline the commission's responsibility to ensure that information is not disclosed contrary to the public interest. I am satisfied that the rules achieve this objective in a proportionate manner and provide important safeguards for the rights of the individual.

The noble Lord, Lord Lester of Herne Hill, whose interest in the subject matter of these rules is well known, cannot be with us tonight. If he were he would strongly endorse the rules. I know that he is happy for me to bring his support to the attention of your Lordships. I invite your Lordships' approval of the rules.

Moved, That the draft rules laid before the House on 2nd July be approved [40th Report from the Joint Committee].--(The Lord Chancellor.)

Lord Kingsland: My Lords, Her Majesty's Opposition would like warmly to congratulate the noble and learned Lord the Lord Chancellor for contriving such an imaginative solution to a seemingly intractable problem.

On Question, Motion agreed to.

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