Draft Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002

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Simon Hughes: It is a pleasure to serve on a Committee under your chairmanship, Mr. Amess. I know that you have been in this place for ever, but it still seems that people taking the Chair are younger than they used to be. I, too, hope that you are enjoying every minute of your responsibilities.

The Liberal Democrats were the only party to vote against the original order proscribing these organisations. We did so because we were unhappy that the Home Secretary came to the House with a list, on a take-it-or-leave-it basis, which did not do justice to the cases of the different organisations. I have been my party's spokesman on these matters for several years. We were clear that there should be a terrorism

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Act and we did not oppose the concept, although we were unhappy with the definition and sought to narrow it. We still believe that it is too wide.

We were happy about the existence of a power to proscribe organisations, but in the Standing Committee on the 2000 Act, I sought to remove the step of having a commission in favour of going straight to the court as the review body of the Home Secretary's decisions. That was not agreed to in Committee and we accepted the majority view. We were unhappy that the legislation should remain in perpetuity, subject to Parliament revoking it, rather than lapse after a five-year period.

We come to the issue with a critical eye; it was an important sub-issue within the wider debate about evaluating the Home Secretary's decisions about proscribed organisations. Unusually, the 2000 Act included a list of 14 Irish organisations, which was inherited from earlier legislation. Another 21 organisations were subsequently added, three of which have applied to the Secretary of State for de-proscription. They were turned down and have now appealed to the commission.

Will the Minister confirm whom precisely we are talking about? I assume that none of 14 Irish organisations, the other group that could be covered by the procedures, has applied for de-proscription. Will Ministers give consideration to whether the 14 Irish or 21 other groups are still involved in terrorism without an organisation's prompting? Will Ministers actively consider whether other organisations might be de-proscribed? One obvious organisation falls into that category. What will be the effect of the peace treaty in Sri Lanka on the Liberation Tigers of Tamil Eelam? I declare an interest in that the headquarters of that organisation in the UK was, until it was de-proscribed, in my constituency and I had dealings with its members as a constituency Member of Parliament.

I have one last general point before I move on to the specifics. It was always accepted that the whole procedure might offend the European convention on human rights. Can the Minister confirm whether any action has been started or mooted in that respect? Ministers would probably know if that were in the pipeline.

I now raise some points about the rules. I understand why the rules relate to the Court of Appeal in England and Wales. Clearly, rules will be necessary to govern the Court of Session in Scotland and the Court of Appeal in Northern Ireland. However, given that the Home Secretary's power to proscribe organisations is UK-wide and that the appeal commission is a UK-wide body, I do not understand how anyone decides which jurisdiction is applicable. I presume that the commission sits somewhere. Will it sit in Northern Ireland to deal with Irish matters and sit in Scotland when the person representing the organisation seeking de-proscription is based in Scotland? As there is a common first decision and a common second tier across the UK, I am mystified about how it is possible to split

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geographically into three different processes to go up to the top of the legal appeal tree. There may be a simple answer, which I have missed. I will be happy to be informed and educated about that.

The central rule was mentioned by the hon. Member for Stone (Mr. Cash) [Interruption.]—the erstwhile hon. Member for Stafford. My constituency has changed name three times, although ''Bermondsey'' and ''Southwark'' have always been retained, and some of us check constituency names before we refer to other hon. Members. The key points appear in rule 4(1), but where has the wording for that come from? What is its precedent as a test that the Court of Appeal might apply? The rule states:

    ''The court must secure that information is not disclosed contrary to the interests of national security''.

It adds that information must not be disclosed contrary to

    ''the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances when disclosure is contrary to the public interest.''

What is the precedent for that set of four tests?

I have no problem with the first, and nor does the hon. Member for Stone, but I do with the second because

    ''international relations of the United Kingdom''

is a wide definition. What I think is in the interests of the United Kingdom's international relations—for example, with regard to our attitude to the United States—may not be what other people think is in the UK's interests. I am therefore interested to know where the wording has come from and why it is included.

We have already had a big debate on the third test—when amendments were accepted during the passage of the anti-terrorism Bill in the previous Session. The Government were forced to accept them because they do not have a majority in the House of Lords—thank goodness that we have some check on Executive power in this place, which prevents a majority Government from getting it all their own way. The amendments meant that the Bill related to the prevention of serious crime, which is right because it is a nonsense to exclude somebody if the only test is the prevention of the most minor crimes.

I agree with the hon. Member for Stone that questions must be asked and answered on the final, very broad, test. It refers to

    ''any other circumstances when disclosure is contrary to the public interest.''

Mr. Ponting was tried under the Official Secrets Act 1911 because he was alleged to have acted contrary to public interest, but he was found not guilty by the jury; Sarah Tisdall's case is similar. Who can question the court's judgment on what is in the public interest? If an organisation went to the Court of Appeal and was told that its representative could not be present because it would be contrary to public interest for them to see the evidence, or it was told that the representative could come but only see part of the evidence, how could the organisation challenge the decision of the court? Would it go to the House of Lords, or to the

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European Court of Human Rights by making an application under the convention? If those methods did not work, we could be giving a broad power to the Court of Appeal, which perhaps the Committee would be happy to agree to.

I believe that the definition of public interest should always be open to judicial scrutiny. The Government, an official body, or another judicial or quasi-judicial body, could be the ones who say whether something is in the public interest.

Mr. Stephen O'Brien: Given that the rules derogate from Parliament to the judiciary, the role to oversee, check and hold to account the Executive, does the hon. Gentleman agree that the ultimate sanction when determining matters must be given by the highest court in the land, or by the European court, as my hon. Friend the Member for Stone argued? Assurance from the Minister on that point is crucial.

Simon Hughes: The hon. Gentleman is right. The rules are a derogation of parliamentary Executive decision making, in a review context, to a court, so there must be a capacity to ask questions. There could be very different views of what is in the public interest, and about whether disclosure of that would threaten national security. There could be very different views on the broad question of international relations and the United Kingdom. I am therefore keen to know its genesis in that form. I was not on the Committee dealing with the rules for the commission and am keen to know, other than if it were used in that context, whether it has been used anywhere else prior to the Terrorism Act 2000 or the Anti-terrorism, Crime and Security Act 2001.

Mr. Cash: We are getting into some interesting and deep territory. I should be grateful if the hon. Gentleman—perhaps the Minister will pick this up at the same time—were to confirm whether the prime function in relation to questions of national security in the circumstances set out in the rules is the Court of Appeal or whether it is the Secretary of State. Lord Justice Slynn gave a judgment on an important case, the name of which has escaped from my memory, relating to terrorism about three months ago.

Ms Winterton: Rehman?

Mr. Cash: Thank you. If I recall the circumstances correctly, the judgment was explicit on the subject of terrorism and human rights.

The Chairman: Order. I am beginning wonder whether the hon. Gentleman is addressing a court. If that is an intervention, will he come to the point quickly?

Mr. Cash: It is an extremely important point. If I have taken a little bit long to get to it, it is only because I want to be clear. Contrary to the exchange that just took place, Lord Justice Slynn's judgment clearly stated that the prime responsibility had to be that of the Secretary of State and the matter was therefore taken out the jurisdiction of the court. I just wanted to get that right. I apologise for enlarging on that point but, as a matter of law—it is my job as shadow Attorney-General to get such things right—that is an important point from a recent House of Lords case.

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Simon Hughes: I shall, as I often do, own up to my ignorance of the recent House of Lords case, but I can check it later. I am not in a position to answer on the specific, but the point of principle is clear. There needs to be a proper review of those matters at the highest level, but the Minister may be better equipped to talk about that than me.

The Minister and I had a quick word last night, in the precincts of the building, on another matter. She said, ''Are you all right about tomorrow morning?'' I hope that she trusts me when I repeat that at that stage I had not sat down to look through things. I was not avoiding giving her early notice of my questions. It was simply that I had not done my homework at the time of our conversation. I apologise if there are questions that I thought of last night when I was working through the papers.

The last issue concerns representation, an important point that has been touched on in previous questions. I am slightly confused by the drafting of schedule 3. Schedule 3(5)(1) to the Terrorism Act 2000 states that

    ''The Lord Chancellor may make rules'',

and it lists five such rules, all of which are to do with the commission. Schedule 3(5)(2) provides that

    ''the Lord Chancellor shall . . . have regard to the need to secure that decisions which are the subject of appeals are properly reviewed''.

We are here to talk about the review of the commission's decisions. Schedule 3(5)(3) states that

    ''The rules shall make provision permitting organisations to be legally represented in proceedings before the Commission.''

Am I right in assuming that it is not express, and if not, is the power derived from somewhere else? Is the starting point that the Lord Chancellor can include people? Rule 4 may allow a party to be excluded, but I have not seen the basis on which that party could be included in the first place. I may have missed something very obvious, and I am quite willing to be told that.

We then come to the exclusion provision under schedule 3, paragraph 5(4):

    ''The rules may, in particular . . . enable the commission to exclude persons''.

All of that appears to be related to the commission rather than the Court of Appeal.

My questions, both about schedule 3(7) concerning the fact that the relevant law officer may appoint a person to represent the interests of an organisation and about rule 4(3), amount to this: am I right to assume, and can I be told, what the legal basis is for the Lord Chancellor to provide for organisations to be legally represented before the Court of Appeal?

We read that there are circumstances in which the Lord Chancellor can exclude legal representatives. If that is the case, can I have an assurance that in every case somebody will be appointed under schedule 3(7) to represent the interests of the organisation that is making the appeal? It would clearly be a nonsensical system if the discretion, however it is intended, permitted the law officer of the day to prevent somebody putting a case. I understand the argument that one may not want the lawyer for one of those

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three organisations, such as the International Sikh Youth Federation, to put the case in public security matters because that might prejudice a national security issue.

In such cases, there must be a guarantee that someone of absolute impartiality, trusted and respected not to be a Government agent or have any better brief for Government, is able to put the case for the appellant. What is the current arrangement for how those people are chosen? Can we have an assurance that they are chosen from a list agreed by both Government and applicant, or are subject to some other parliamentary scrutiny, the Intelligence and Security Committee, for instance?

I would not want the list of people to represent the applicant against the Government to comprise people that the Government have nominated and approved. That would put all the cards in one hand, and weight the appearance of the decision entirely in Government's favour, even if the people on that list were of the greatest integrity. I hope that that is clear. We look forward to the Minister's answer. I apologise to her that I could not give her prior notice last night; I was busy on other Home Office matters during most of yesterday.

11.28 am

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