| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Goodhart: My Lords, the principle behind these rules—the special advocate principle—was debated extensively both during the passage of the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001. It is one which we on these Benches accepted. We did so with some reluctance but, recognising the very special circumstances attaching to terrorism, we ultimately accepted it. Therefore, I certainly have no intention whatever of challenging the principles behind it.
I wish to make two points of which I have given notice to the Minister. I hope that she will be able to respond to them. The first point that I wish to raise applies to all three sets of rules; namely, that the commission in one case, or the Court of Appeal in the other two cases, must,
- "secure that information is not disclosed contrary to the interests of national security, the detection and prevention of crime, or in any other circumstances where disclosure is contrary to the public interest".
However, an appellant has a right to a fair hearing, including in principle the disclosure of evidence which is intended to be used against him. There is a general public interest above and beyond that of the appellant personally that trials should be fair. We believe that the right to disclosure of evidence can be overridden only in exceptional cases. I should like an assurance that, in deciding whether or not to disclose information, the commission or the court will be required to take into account the personal interests of the appellant and the general interests of the public in the disclosure of evidence which is material to the trial and that any order to withhold information will be made only where that is a proportionate and necessary response to the damage that would be caused by the disclosure of it.
My second point applies only to the Pathogens Access Appeal Commission (Procedure) Rules 2002. It arises under the special advocate regulation in Rule 8. Rule 8(1) states:
- "At any time prior to issuing a reply under rule 9(1), the Secretary of State shall inform the relevant law officer"—
- "of the proceedings before the Commission, with a view to the law officer, if he thinks fit to do so, appointing a special advocate to represent the interests of the appellant in the proceedings".
- "Paragraph (1) applies unless—
- (a) the Secretary of State does not intend to oppose the appeal, or
- (b) he does not intend to object to the disclosure of material to the appellant".
Lord Kingsland: My Lords, I have only one matter to add to what the noble Lord, Lord Goodhart, has said. These provisions—on balance I think understandably—involve, particularly in one case, a substantial diminution of individual rights. Is the Minister able to give to your Lordships' House tonight an undertaking that the operation of the special advocate procedure will be kept under careful review; and that there will be some form of accountability over a period of time for the procedure to your Lordships' House and another place?
Lord Brennan: My Lords, I want to raise two matters with the Minister. First, I commend the Government on consulting with the judiciary about the rules. Secondly, I invite comment on two consequences, by way of example, from Rule 4 in the Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules. First, I invite the Minister to be careful before proposing in reply to the noble Lord, Lord Goodhart, a suggested basis for judicial decision-making about how to interpret Rule 4. I should have thought that it is for the court to determine what it thinks is in the public interest, having regard to the evidence that it has heard, and not for the Government to dictate to the judiciary the way in which it should approach matters. I remind the noble Lord, Lord Goodhart, that there may be Ministers who would give the judiciary different advice from that which he mentioned.
Secondly and much more importantly, I raise a matter that needs clarification. In an appeal to the Court of Appeal under the rules or under similar rules that might emerge from the Anti-terrorism, Crime and
Security Act, the court, in deciding a point of law, has to listen to evidence of a kind mentioned in Rule 4 on the appeal if it excludes the appellant and his representatives. Do those rules envisage that a special advocate will have a right of audience in the Court of Appeal to address those matters before the court makes its decision?
Baroness Scotland of Asthal: My Lords, I can answer my noble friend's final question briefly simply by saying, "yes".
I bear in mind the caution given to me by my noble friend Lord Brennan on the questions raised by the noble Lord, Lord Goodhart. The noble Lord was right. The Secretary of State will not take such decisions lightly and will consider all relevant issues. However, it will ultimately be for the commission or the court to decide whether a party should be excluded from a hearing or part of a hearing where such material is under consideration. That is not in the sole discretion of the Secretary of State, although he could choose not to rely on evidence that would otherwise need to be disclosed.
The Secretary of State is unlikely to give reasons for his decision when he issues directions requiring denial of access. However, if the excluded person appeals, any evidence in the public domain will be heard in the proceedings before the commission or the court, at which the appellant or his representative can be present. If the commission or the court determined that it would be against the public interest for the evidence to be made public, the evidence on which the Secretary of State based his decision would be heard without the appellant. However, the special advocate would be present and able to voice his view.
In respect of the second question of the noble Lord, Lord Goodhart, it is envisaged that the Attorney-General will in practice appoint a special advocate where a party or his legal representative are to be excluded from the hearing. The Attorney-General will seek representations from the appellant or his legal representative before official nomination of the special advocate. On issues of conflict of interest that may arise, we are satisfied that the decision of the Attorney-General is ECHR compliant and is not subject to judicial review. A special advocate is appointed by the Attorney-General but not instructed by him. I hope that that assists the noble Lord.
On the question raised by the noble Lord, Lord Kingsland, there is a provision for a review of the rules. The noble Lord will remember that Section 122(4) of the 2001 Act contains a provision for that Act to be reviewed by a commission after two years. It states:
- "The committee shall complete the review and send a report to the Secretary of State not later than the end of two years beginning with the day on which this Act is passed".
On Question, Motion agreed to.
Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002
7.36 p.m.
Baroness Scotland of Asthal rose to move, That the draft rules laid before the House on 12th June be approved [32nd Report from the Joint Committee].
Moved, That the draft rules laid before the House on 12th June be approved [32nd Report from the Joint Committee]—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Pathogens Access Appeal Commission (Procedure) Rules 2002
7.37 p.m.
Baroness Scotland of Asthal rose to move, That the draft rules laid before the House on 12th June be approved [32nd Report from the Joint Committee].
Moved, That the draft rules laid before the House on 12th June be approved [32nd Report from the Joint Committee]—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Specialized Agencies of the United Nations (Immunities and Privileges) (Amendment) Order 2002
7.38 p.m.
Baroness Amos rose to move, That the draft order laid before the House on 12th June be approved [32nd Report from the Joint Committee].
The noble Baroness said: My Lords, I shall speak also to the draft United Nations and International Court of Justice (Immunities and Privileges) (Amendment) Order 2002.
These two orders were laid before the House on 12th June 2002, together with Explanatory Memoranda now required for all affirmative statutory instruments. They are similar and so, for the convenience of the House, I shall discuss them together. They provide for refunds of insurance premium tax (IPT) and air passenger duty (APD) to the United Nations and International Labour Organisation paid in the exercise of their official activities.
Thirty five international organisations already have relief from IPT and APD under existing legislation. Those are international organisations of which the United Kingdom is a member and which have headquarters or offices based in the United Kingdom and those others, although not based here, to which we are legally obliged to give relief from such taxes and duties. The United Nations and ILO will bring the total to 37. Unlike the majority of the other international organisations, there were legal complexities in this instance which had first to be resolved.
Refunds of IPT and APD are given to meet our international obligations. It is established international practice that a state should not tax other states through the intermediary of an international organisation and that the host state should not derive undue fiscal advantage from the presence on its soil of an international organisation.
IPT is levied on buildings, on household contents and on vehicle insurance policies. Some areas of insurance, such as life, pensions and permanent health insurance, are exempt. Basic liability to pay and account for the tax rests with the insurance company.
APD applies to all passengers departing from UK airports, irrespective of when and where the ticket was acquired. APD is collected by the carrier or agent issuing the ticket and charged to the customer at the time of purchase. Rates vary depending on whether the destination is within or beyond the European economic area and the class of travel. Both IPT and APD were introduced in 1994.
The orders confer only those privileges and immunities that we are internationally obliged to confer and will allow us to treat the United Nations and ILO on the same basis as 35 similar organisations. I am satisfied that the orders are compatible with the European Convention on Human Rights. I beg to move.
Moved, That the draft order laid before the House on 12th June be approved [32nd Report from the Joint Committee]—(Baroness Amos.)
Next Section
Back to Table of Contents
Lords Hansard Home Page