Draft Pathogens Access Appeal Commission (Procedure) and Draft Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002

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Mr. David Heath (Somerton and Frome): The Minister says that the commission can rule on non-disclosure in the same way as can be done under the POAC rules. Is there not a difference between the general duty of the commission on the one hand and the POAC and Court of Appeal rules on the other? One of the four tests applied in the POAC rules and by the Court of Appeal concerns the UK's international relations. That has been dropped in these rules; why?

The Chairman: Order. I have been very patient so far, but interventions are supposed to be short, not long and complicated. I should prefer Members to make their own speeches and to stop punctuating the Minister's speech with mini-speeches.

Ms Winterton: I am not sure what the hon. Gentleman means about international relations being dropped, but I may come back to that.

Mr. Heath: I was referring to part I—''general provisions''—paragraph 3(1), which includes national security and the detection and prevention of crime, but not international relations.

Ms Winterton: I am not sure whether they are covered by ''any other circumstances'', but I will certainly get back to the hon. Gentleman on that. In a previous debate, there was some discussion of what ''any other circumstances'' meant. We believe it important that the chairman of the commission, a senior member of the judiciary, should be able to make directions, so that these specialised and difficult matters can be speedily dealt with.

The Court of Appeal rules before us today apply to proceedings before that court when it hears an appeal against a decision of the commission. The provisions for the Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002 are set out in

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paragraph 5 of schedule 6 to the Anti-terrorism, Crime and Security Act 2001. The Court of Appeal rules are straightforward. They are required to ensure that the Court of Appeal secures

    ''that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom''—

which relates to the point made by the hon. Member for Somerton and Frome (Mr. Heath)—

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

Mr. Cash: I am not running counter to what the Minister is saying, but this is an important exchange because we are taking the two orders together. Will she throw some light on the fact that article 3 of the procedure order states that

    ''information is not disclosed contrary to the interests of national security . . . crime, or in any other circumstances where disclosure is contrary to the public interest'',

but rule 4 of the Court of Appeal order requires that the court

    ''must secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime''?

In other words, why is there a distinction between those two orders in respect of international relations?

Ms Winterton: As I said, I will return to that question if I can, but will write to members of the Committee should that be necessary. I will seek further advice on the matter. Issues may arise that relate to a particular employee whereas, in the Court of Appeal scenario, other things may have to be brought before the court that would have a greater effect on international relations. It is felt that, at the commission level, such matters can be covered by ''any other circumstances''. I take on board the point that has been made and, if necessary, will write to hon. Members with further information.

Appeals to the Court of Appeal are only on questions of law. Questions of fact, which are more likely to give rise to issues of disclosure, will have been considered by the commission already under its rules of procedure. Those rules provide for detailed procedures for deciding whether material can be disclosed. The Court of Appeal may exclude from proceedings any party other than the Secretary of State and his representative. The Court of Appeal's discretion to exclude a party from proceedings can be used only if it were necessary to ensure that information was not disclosed contrary to the public interest. Furthermore, there is provision in the Anti-terrorism, Crime and Security Act 2001 to allow for the appointment of a special advocate by the Attorney-General to represent the interests of a person excluded from proceedings.

I thank you, Mr. Griffiths, for giving me the opportunity to provide that explanation. I am happy to respond should hon. Members wish to raise other points. I commend the draft procedure rules and the draft Court of Appeal rules to the Committee, and

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confirm that they are compatible with the European convention on human rights.

4.54 pm

Mr. Cash: The rules are very important and nothing that I say or have said should be construed as implying that I do not agree that the rules are necessary. However, the Anti-terrorism, Crime and Security Act 2001 requires consistency with the rules of natural justice. I would fail in my obligations if I did not try to highlight several points that, if they do not give rise to anxiety, need a full explanation.

By way of preamble, an exchange between Lord Rooker and Lord Dixon-Smith questioned whether the words,

    ''the security of any country or territory outside the United Kingdom''—

that is, external relations, and not simply national security—should be included. I hoped that the words would be accepted. When considering extremely dangerous substances and biological weaponry, we should not distinguish between national and international security. That has been borne out by all the events to which we have been exposed since 11 September and, in my opinion, long before then.

As long ago as the 1980s, I went to the United States and visited a large laboratory. The senior laboratory expert told me that it already had materials that would remain neutral unless triggered. He said that one simply had to begin the first stage, and drop a line to inform the potential enemy that if he did not do what was required, one would activate the second trigger. No one would be any the wiser because they would be quickly dead. I do not know whether that could happen today. However, that is so dangerous that I do not want to oppose the order. I cannot understand the reason for confining ourselves to national security when international security is part of that.

In the Rehman case, Lord Hoffmann stated that

    ''in matters of national security, the cost of failure can be high.''

That underlines the need for the judicial arm of Government to respect the decisions of Ministers of the Crown about whether support for terrorist activities in a foreign country constitutes a threat to national security. That was a recent House of Lords case, and is therefore authoritative. It emphasises the importance of the fundamental and final questions that arose in it, and stressed that national security was a matter for Ministers of the Crown because they are accountable. We should bear the importance of that in mind.

4.58 pm

Sitting suspended for a Division in the House.

5.13 pm

On resuming—

Mr. Cash: I just want to go briefly through the individual rules to air my concerns and I invite the Minister to respond.

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In terms of rule 4 of the appeal commission rules, I have already alluded to information not being disclosed

    ''contrary to the interests of national security''

as opposed to international relations. I have no need to repeat that; no doubt the Minister will give a written reply.

Rule 4 deals with delegated powers. With respect to the Minister, it is not only the chairman who should necessarily be a senior Law Lord. That should apply to any other member of the commission who falls within the rule. I am concerned to get it right. The chairman will have important powers in terms of directions and applications for permission to appeal. I do not understand why that should be left to one person when there are provisions for the commission as a whole. The commission is small. The Government appear to be trying to hold this back in too tight a circle.

Rule 8 relates to the special advocate. Paragraph (1) states:

    ''the law officer . . . if he thinks fit to do so, appointing a special advocate to represent the interests of the appellant in the proceedings.''

I already made my point about what the rule says, and the Minister's reply is on the record.

On rule 12, I understand that there could be circumstances in which there are two or more appeals to be put together. Equally, plenty of people could easily argue that each case is different, and it would be difficult to claim that this was justified.

On rule 13, I already dealt with directions and the fact that the power to give them is given to a tight circle and, in some instances, only to one person. The power to give directions will be exercised in the absence of the parties.

Rule 18 relates to proceedings in private. We understand many of the reasons for that, but we need to know the parameters and the extent to which difficulties could arise. The rule raises important questions.

Rule 19 relates to evidence. Paragraph (3) states:

    ''The Commission may receive evidence that would not be admissible in a court of law.''

I should be interested to know what that is supposed to cover. After all, matters of national security are at the top of that agenda, but I must also ask about international relations.

On the Court of Appeal (Appeals from Pathogens Access Appeal Commission) Rules 2002, I already made a point about rule 4 on national security and, on this occasion, the inclusion of international relations of the United Kingdom. With regard to the extent of the rules, I think that I am right in saying that the appeal commission procedure rules apply to the whole of the United Kingdom. I may be open to correction on that. However, the other rules do not extend to Scotland and Northern Ireland. Will the Minister clarify that? I understand why they may not, because of the judicial system in the devolved Administrations. However, I ask the Minister for an assurance that

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equivalent rules will be introduced to apply to Scotland and Northern Ireland.

I know that we have devolved government but, equally, when we are dealing with pathogens, the borders between Scotland, England and Wales are not that far away. I want to be sure that we have a consistent and uniform approach, so that we eventually have a United Kingdom framework, albeit making allowances for the devolved system of government and the judicial process.

That is all I have to say, and I look forward to the Minister's reply.

5.19 pm

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