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Lord Dubs moved Amendment No. 117:

Page 45, line 26, leave out ("date") and insert ("passing").

The noble Lord said: My Lords, this is purely a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 85 [The Tribunal]:

Lord Williams of Mostyn moved Amendment No. 118:

Page 47, line 2, after ("appeal") insert ("; and
(b) where the Secretary of State is not party to any such proceedings, the Secretary of State,").

The noble Lord said: My Lords, in this group we find Amendments Nos. 118, 120, 234 and 236. Amendment No. 118 is to ensure that the Secretary of State's interests in the tribunal's proceedings are fully represented. The Secretary of State will be a party to the proceedings where the original act complained of was undertaken by her. There may be occasions when the Secretary of State is not the respondent and therefore this amendment ensures that the Secretary of State can be legally represented where she is not a party. Amendment No. 120 also ensures that where she is not a party, the Secretary of State will have a right of appeal to the Court of Appeal on a point of law arising from the tribunal's determination. She has a legitimate interest as a certifier of the original act and also her responsibility and accountability for national security. I believe that these matters were the subject of general approval in principle when we discussed them more generally at Committee stage.

Amendments Nos. 234 and 236 are simply technical amendments relating to the transitional provisions. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 119:

Page 47, leave out line 33.

The noble and learned Lord said: My Lords, the tribunal, about which my noble friend Lord Williams has just been speaking, appeared at a late stage in our Committee proceedings. I am sure that my noble friend will agree that, welcome as his proposal was, it would not have been practicable for us to submit it to scrutiny at that point. Accordingly, I scrutinised it after the Committee stage. I am grateful for the advice of Professor Christopher McCrudden.

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The tribunal is to deal with a situation where someone complains of discrimination under Clause 22 or Clause 72 and the Secretary of State certifies that it was justified by the requirements of national security or the need to protect public safety or public order.

Clearly, there may be good reasons why the justification cannot be examined publicly. The special procedures of the tribunal are intended to address that problem. That may well mean the absence of some of the rules which protect the citizen in normal proceedings. The Lord Chancellor is empowered to make rules provided, for example, that the matter should proceed in the absence of the complainant and that he shall not know the particulars of the case against him. I accept all that, Heaven forgive me. I even understand that the legal representative whom the complainant has chosen may have to be excluded if he does not have the necessary security clearance.

The second-best provision appears to lie in the power of the Attorney-General to appoint someone from the Northern Ireland Bar to act as his representative. What puzzles me is the provision that that representative "shall not be responsible" to the party whose interest he represents. I should be grateful if my noble friend could explain what is entailed by that. Does that mean that he is not to be bound by the instructions of the complainant? I understand that if his instructions were, for example, to demand that classified information be made public, he would not be bound by that. But may he decline to discuss the case with the complainant? May he make a concession of fact contrary to the instructions of the complainant? What is to be the relationship between the lawyer and the client? I hope that my noble friend will satisfy me, but, if not, I hope that at least he will enlighten me. I beg to move.

8.30 p.m.

Lord Cope of Berkeley: My Lords, when I first read the amendment I, too, was concerned about its meaning. I think that a person who is trying to represent the interests of a party, which he is required to do under subsection (7), is in a difficult position if he is not responsible to the party concerned even though he is representing his interests. However, at the same time I believe it is necessary to make careful arrangements in Northern Ireland for the protection of security and information.

We all know of the terrible things that have happened to individuals in Northern Ireland as a result of the situation and the terrorist organisations which operate there. Protection such as is provided by this clause is essential including, I believe, the provision for the Attorney-General to appoint a different person. The noble and learned Lord asked some interesting questions about the precise meaning of the clause.

Lord Williams of Mostyn: My Lords, those are perfectly legitimate and essential questions. Perhaps I may step back one pace. As some of your Lordships know, the background to this arises from the case of Chahal in the European Court of Human Rights. Chahal was excluded from this country on the ground of national security. At that stage he had no opportunity of

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being represented in an independent tribunal. I hope I paraphrase the case fairly. Chahal found us to be derelict in that respect.

The first Bill I introduced in your Lordships' House was to set up a special immigration appeal tribunal. At that time we had a good deal of careful discussion about how properly to represent two interests which may conflict. The first was the interest of the appellant in having his case put as effectively as possible by professional representation. The second issue identified--here I absolutely agree with the noble Lord, Lord Cope of Berkeley--was the legitimate public state interest in protecting confidential information which may be restricted; alluding also to some aspects of restricted material--it is a notorious commonplace--which may put people in serious danger, even in danger of death. Therefore, we wanted to strike a balance. We would have been unhappy for someone who was an appellant not to be represented. Equally, we could not contemplate the normal relationship of lawyer-client because that would be impossible. I think that we have gone as far as we possibly can to meet legitimate complaints.

The scheme in Clause 85(8) is that,

    "A person appointed under subsection (7)--

    (a) shall be a member of the Bar of Northern Ireland;

    (b) shall not be responsible to the party whose interests he represents".
That follows the theme of subsection (7), which states:

    "The Attorney General for Northern Ireland may appoint a person to represent the interests of a party to proceedings before the Tribunal in any proceedings from which he and any legal representative of his are excluded".

One starts off with a situation which is quite unusual. Apart from persons under a disability, the normal human right is, of course, to a legal representative of one's reasonable choice. That cannot obtain here. What one has here is not a legal representative of reasonable choice but someone appointed by the Attorney General to protect the interests of a particular appellant in the context of restricted material. Therefore, the relationship starts completely differently from the relationship with which my noble and learned friend Lord Archer and I were familiar when we were both practising members of the Bar.

If restricted material is discussed, the designated legal representative will be in receipt of it. He will not be able to take instructions from his client about it. He will not be able to inform the appellant of the content of that material. He will not be able to take instructions about what to dispute. I accept that those are significant restrictions on the relationship which one normally has between client and lawyer. The alternative was to have no representation at all. We did not want to go down that route and we set our face against it. Therefore, in the nature of things, we had to look for a compromise. I think that this is a legitimate and fair compromise.

I take the point of the former Solicitor-General. Perhaps I may refer to him in that way because I know of his keen interest in Bar ethics when he was a leading member of the Bar. However, he does not become not responsible. The underlying theme is that the advocate

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still remains responsible to his profession and code of professional ethics. He has to be a member of the Bar of Northern Ireland. If counsel came to the conclusion that he could not properly discharge his functions within the parameters set, he would have the opportunity of ceasing to act.

I have spent a little time on this matter, despite the fact that it is late, because we regard it as of fundamental importance. We were deeply unhappy with the prospect that someone should not have competent legal representation. We had to bear in mind the issue concerning restricted material, truly a matter which might compromise national security. I think that we have achieved a commendable compromise.

Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend Lord Williams for the care with which he replied to my questions. I have never disputed the assertion of the noble Lord, Lord Cope, or of my noble friend that in this situation one must have regard to the needs of national security. I hope that I made that clear when I introduced the subject.

What puzzles me is the meaning of the words "not responsible to the complainant". Does that mean, for example, that the complainant cannot complain about anything which his representative does? If that is so, I wonder how far we comply with the ruling in Chahal? Is the complainant really represented at all or is the word "represented" used only in its Pickwickian sense?

One could pursue this matter at some length. Your Lordships will be relieved to hear that I have no intention of doing so tonight. However, I am not sure that the last word has been said on the subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Appeals from the Tribunal]:

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