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

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Mr. Heath: I am pleased to serve under your chairmanship, Mr. Griffiths, despite your earlier strictures. It is the first time that I have done so.

We are discussing an extremely important pair of statutory instruments, not only because of the national and international context and security issues that are raised, but because of the human rights issues involved. We must get it right. When taking steps to protect our liberal democracy and the lives and well-being of not only our citizens but citizens around the world against the threat of terrorism, it cannot be in the interests of this country for that liberal democracy to be undermined by a removal of human rights without us being aware of what is involved and careful that such restrictions are consistent with the needs of national security.

That sets the scene, and having said that, I should be clear that, like the hon. Member for Stone (Mr. Cash), I see the need for legislation to protect us from the threat of pathogens and toxins. Indeed, they pose a more realistic threat than some others that are often discussed. Unless we put robust legislation in place, we are doing a disservice to the people of this country. We should take that as read, and instead examine the substance of the rules.

I start with the last point of the hon. Member for Stone. It is important that we have a consistent approach. I assume that because reference is made to a United Kingdom Secretary of State, English courts will deal with the matters irrespective of the geographical situation of the premises. I may be wrong about that, and it would be good to hear the Minister's confirmation.

I would be interested to know the workings of the orders. I understand that a specific order is put on the occupier of premises to prevent access of a specific person. Can that restriction on a person be extended to a class of premises, or is a different order necessary for each building that may contain the pathogens or toxins in question? If an order against one person is needed for each building, there is a danger of proliferation of appeals, which would not be in the interests of the judicial system.

We have already had exchanges about the mysterious disappearance of the reference to the international relations of the UK from the rules relating to the commission. If that change was made deliberately because of the difficulties of interpreting the expression, I welcome it. The rules on appeals from

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prescribed organisations have been debated, and there is a serious question about the definition of what is in the interests of the international relations of the UK. For instance, would that include considering the pressure, which might be considered inappropriate, from a friendly power that may not have the same attitudes to either legal systems or the appropriate way of dealing with potential miscreants? I can conceive of many Governments around the world who might seek to apply that pressure and affect the judicial proceedings in this country. We should ignore that pressure, but it could clearly fall within the terms of the interests of the international relations of the UK. Therefore, I feel that the rules are on much sounder ground on the other definitions that they apply, save for the open-ended prescription of ''any other circumstances''.

I understand why such a prescription is needed, as one does not want to go back to the legislative drawing board when certain circumstances arise. However, I am concerned about the ability to challenge the interpretation. There have been several cases in which Ministers of the Crown have interpreted national interest in a specific way and a court has held otherwise. I am not clear where within the structure the assumptions that are made, by the commission or the Court of Appeal, can be challenged elsewhere.

Perhaps the Minister will tell me that the only appropriate vehicle for such a consideration is an appeal to the House of Lords. I should be grateful if she explained. Decisions taken, whether to exclude people from the hearings, to appoint a special advocate or on anything to do with the procedures adopted, must be capable of judicial scrutiny or review at some point, so that an opposing case can be made. It is not clear how that will be done.

The other major concern is the ability of a Minister of the Crown to appoint a person to represent an individual in proceedings at appeal or before the commission. Again, we have previously raised with Ministers the question of whether it is right that a single person should be appointed in the circumstances without the prior agreement of the appellant. Perhaps it would be more appropriate for a list of appropriate persons to be provided by the Minister, so that the appellant had at least some discretion as to how they were represented.

The hon. Member for Stone made a point about the duties of the special advocate to the appellant, and that matter is also unclear. It is all very well to say that the appellant will have their own legal representatives, but those representatives will not have access to the material evidence used in the case. Therefore, their ability to represent a case appropriately is limited. People will have no access to the proceedings of the tribunal either, so it will be beyond their power to know whether they have been adequately represented. There might have to be clearer responsibility on the part of the special advocate in the interests of the appellant.

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I have two other points. The orders have the potential to make a citizen of this country unemployable in their trade or profession. A pathologist, medical technician or scientist could be held to be a danger under the provisions of anti-terrorism legislation. They could then be excluded from the premises in which they carried out their trade or profession. I do not know whether there is any remedy for the individual under those circumstances, whether the case for exclusion is well founded or not. The Minister might look at that to see what the consequences might be in employment law or elsewhere of the effective exclusion from trade or profession.

The second point is that we are dealing with novel procedures. They are not entirely novel, as there are precedents, but both in this case and that of prescribed organisations the procedures are not the normal procedures of the court system. Will the Minister tell me whether there are any proposals for review of the procedures at a suitably high level within the judiciary, to ensure that they are working as effectively as possible? That would be appropriate a relatively short time after the systems were introduced, so that an assessment could be made of whether the procedures were working to the satisfaction of the courts, the Secretary of State and those who are proscribed under the Act.

Most important is the danger that the provisions will be perceived, either here or abroad, as being a dereliction of the human rights of the individual. I do not say that they are. I say merely that there is a risk of that happening; a perception that is built on the fact that, in the first instance, it will be a Minister, and not a member of the judiciary, who will determine that the direction should be made. A Minister will determine whether matters can be disclosed to the appellant; could they be called the accused? A Minister will determine who should represent that person. A Minister will tell us that that is all compatible with the European convention on human rights. It is not impossible to construct a view that that may be a dangerous set of circumstances, and that people might suspect that what was being done was not in the interests of natural justice.

Mr. Cash: I have taken a slightly different path. I repeat what I said about Lord Hoffmann's judgment. No one in the House of Lords is more vigilant on human rights than him. A few months ago, he stated that

    ''the need for the judicial arm of government to respect the decisions of Ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security''.

It is crystal clear that decisions have to be taken by Ministers of the Crown.

Mr. Heath: I do not dissent from that view, and I have the greatest respect for Lord Hoffmann. I am saying that that construct, which places within the hands of the Executive so many of the powers that would normally be accorded to the judiciary could be construed as being an affront to human rights. Whatever safeguards we can build in to prevent that construction—or misconstruction—of the apparatus

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for that procedure would be well advised. That is what I ask Ministers to do, not only within these orders, but with similar procedures. Whenever possible, we must ensure that suspicions do not arise that the Executive is effectively acting as prosecutor, judge and jury in its own court.

5.33 pm

Ms Rosie Winterton: This has been interesting and searching debate on what is obviously an important subject. Opposition Members have indicated their general support for the Government's approach, although they have raised a number of issues.

The hon. Members for Stone and for Somerton and Frome mentioned the Rehman case. That case clearly showed that people have the opportunity to take their appeals to the highest level. We are trying to ensure—in difficult circumstances, because of the nature of the information that the commission and the Court of Appeal will have to consider—that we build proper rights of appeal into the process, although there will inevitably be some constraints.

In connection with the effect of the rules on international relations, it has been mentioned that there are some differences in the different rules. In the Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002, reference to international relations was made in relation to the commission. We were looking at that example in considering international organisations, and it was felt that it would be appropriate to include a similar reference in the commission rules. In addition, it was felt that it would be appropriate to refer to the issue of international security in the Court of Appeal rules because there may be less familiarity with the issues of national and international security.

The hon. Member for Stone referred to the judgment in the Rehman case, which stated that it was difficult to distinguish between national and international security because the implications of national security so often extend into the international field.

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