Ninth Standing Committee on Delegated Legislation
Thursday 4 July 2002
[Mr. Win Griffiths in the Chair]
Draft Pathogens Access Appeal Commission (Procedure) Rules 2002
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,
That the Committee has considered the draft Pathogens Access Appeal Commission (Procedure) Rules 2002.
The Chairman: With this it will be convenient to consider the draft Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002.
Ms Winterton: It is a pleasure to serve in Committee under your chairmanship, Mr. Griffiths. I am pleased that the two orders will be discussed together. They were laid before the House on 11 June 2002. Although there is no statutory requirement to consult on either order, we consulted members of the judiciary about the Court of Appeal rules. It may help members of the Committee if I explained how we came to be in such a position in respect of the Pathogens Access Appeal Commission (Procedure) Rules. A review of terrorism legislation preceded the introduction of the Terrorism Act 2000, which meant that many of the powers needed to protect United Kingdom citizens were in place.
However, following the events of 11 September last year, the Anti-terrorism, Crime and Security Act 2001 expanded those powers to take account of the changed threat. One measure was the result of the need for better security when dealing with pathogens and toxins. Many hospitals and universities hold dangerous disease stocks in laboratories for research purposes and there is a need to ensure the security of those stocks and, in particular, those who have access to them.
There is now an obligation under the Anti-terrorism, Crime and Security Act 2001 on occupiers to notify the Secretary of State before any dangerous substance is kept or used on their premises and to comply with any reasonable security requirements that the police may impose after an inspection. There is also a requirement on occupiers to provide the police on request with the names and other details of people who have regular access to dangerous substances.
Under section 64 of the Anti-terrorism, Crime and Security Act 2001, the Secretary of State may issue directions to an occupier to require that any person can be denied access to dangerous substances when that is in the interests of national security or public safety. Section 70 of the Act provides for the establishment of the Pathogens Access Appeal Commission to hear appeals by individuals—such as students, doctors or researchers—against the Secretary of State's decision to deny them access. The commission will need to consider high classification intelligence material and ensure that information is not
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disclosed that would be contrary to the interests of national security, the detection and prevention of crime or in any other circumstances in which disclosure is contrary to the public interest.
Paragraph 5 of schedule 6 to the Act sets out the practice and procedure to be followed in appeals to the commission. The Act also provides for further appeal from a decision of the commission heard in England and Wales to the Court of Appeal on a question of law with the permission of the commission or the Court of Appeal.
I turn now to the draft Pathogens Access Appeal Commission (Procedure) Rules 2002, which govern the commission's procedures. I wish, in particular, to draw the attention of members of the Committee to the rules provisions. Under rule 6, individuals may bring an appeal before the commission within six months of the Secretary of State issuing directions denying them access under section 64 of the Anti-terrorism, Crime and Security Act 2001.
When the commission considers it necessary, appeals may be heard in the absence of the appellant; that is covered by rule 18. That will primarily be necessary when the Secretary of State has objected to the disclosure of certain material to the appellant. In such cases, the Attorney-General will appoint a special advocate to represent the interests of the appellant, as under rule 8. That is to protect the rights of the appellant without compromising any sensitive information that might form part of the Secretary of State's opposition to the appeal.
The special advocate represents the interests of the appellant by: making submissions to the commission in any proceedings from which the appellant or his representative are excluded; cross-examining witnesses in any such proceedings; making submissions to the commission in any part of the proceedings from which the appellant and his representatives are not excluded at the invitation of the commission; and making written submissions to the commission.
Mr. William Cash (Stone): Will the Minister explain how the special advocate would represent the appellant? Schedule 6 states that:
''A person appointed under this paragraph shall not be responsible to the applicant whose interests he is appointed to represent.''
Ms Winterton: I need to examine that point in more detail. The special advocate will represent the interests of the appellant. I am not sure that the exact wording used by the hon. Gentleman would cross over in the way that I set out.
Mr. Cash: May I help the Minister? It is true that under the procedural arrangements covered by paragraph 6(1) of schedule 6 of the Act, it states:
''The relevant law officer may appoint a person to represent the interests of an organisation or other applicant in proceedings in relation to which an order has been made''.
However, my point arose in paragraph 6(4) of schedule 6. I seek clarification.
Ms Winterton: Will the hon. Gentleman explain exactly which paragraph he quoted?
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Mr. Cash: If the Minister has the same Act as me, the paragraph is on page 110, just above schedule 7. We may be able to deal with the matter later, but I wished to raise it at this stage.
Ms Winterton: I suspect that what we are talking about is the fact that the special advocate is appointed to represent the interests of the appellant, but the advocate is not legally liable to the appellant.
Mr. Cash: As far as I am concerned, that is exactly the problem that arises. The one thing that is usually inherent in any legal proceedings is that when a barrister represents somebody in court, the client naturally expects that the barrister will be responsible to him, as would a solicitor; the client may be paying his fees or the case may be covered by legal aid. I am not trying to be difficult; I am trying to understand. We cannot do anything about a distinct difference under the Act. I wished to question the reference that the Minister made, because I suspect that the proceedings will be examined carefully in due course, as lots of problems may arise in relation to judicial review.
Ms Winterton: I hope that the hon. Gentleman will be reassured if I say that the proposal does not exclude the appellant's legal representatives, who will work closely with the special advocate in ensuring that the points that the appellant wants to be made are made through the legal representative. The special advocate can be privy to information in presenting a case. It would not necessarily be appropriate, because of national security interests, for that information to be passed back to the legal representative and the appellant. The liability will lie between the appellant and his legal representative. The special advocate is not legally liable in respect of the appellant. I am sure that the hon. Gentleman will understand that we are trying to ensure that the appellant's interests are represented even when national security interests prevent the legal representative from appearing before the commission at the same time.
Under rule 12, the commission also has the power to consolidate or hear together two or more appeals when the same question of law or fact arises or it is otherwise desirable to do so. That provision is designed to prevent the possibility of several separate but essentially similar appeals being mounted at the same time by people affected.
Those are the key provisions of the procedure rules. I shall now set out in more detail the draft Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002.
Mr. Cash: The Minister omitted to mention that the chairman will have the power to take important steps in giving directions. It is unusual when setting up such a small commission—in this case, consisting of three members—for the powers to be conferred on the chairman of the commission or what will effectively be a senior judge who is a member of the commission. The question of what powers he will exercise in relation to someone who appears before him is important. Why did she not mention that?
Ms Winterton: The chairman of the commission—who, as the hon. Gentleman says, will be someone who
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holds high judicial office—will be able in the first instance to direct how the appeal is to be heard. That does not mean that the appeal will be heard by one person. The other members of the commission will be appointed later. I should have thought that it was not unusual for such a leading member of the judiciary to direct how the appeal was to be heard.
Mr. Cash: The power to give directions under article 13 may be exercised in the absence of the parties. Therefore, directions will be given, albeit by a senior judge or whoever. We understand the reasons behind that and have a lot of sympathy with the objectives, but questions of natural justice must be complied with under the Act. As the Minister knows, such matters must be consistent with both the convention on human rights and the rules of natural justice; parts of these proposals seem pretty close to infringing those.
Ms Winterton: I note the hon. Gentleman's comments. The power of the legally qualified chairman to give directions is the same as the power conferred by the Proscribed Organisations Appeal Commission rules. Some of these cases are difficult and involve national security. I assure the hon. Gentleman that, in my opinion, both these rules are compatible with the European convention on human rights.