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Northern Ireland Act Tribunal (Procedure) Rules 1999

2.35 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs) rose to move, That the draft rules laid before the House on 5th July be approved [25th Report from the Joint Committee].

The noble Lord said: My Lords, the purpose of the draft rules before your Lordships today is to set out the procedural arrangements for appeals to the tribunal to be established under Sections 90 to 92 of the Northern Ireland Act 1998. That tribunal is to provide an avenue of appeal where a certificate has been issued for reasons of national security, public safety or public order in connection with proceedings before the courts or a fair employment tribunal in Northern Ireland.

Your Lordships will no doubt recall that the tribunal provisions in the Northern Ireland Act were first added to the Bill at its Lords Committee stage. The tribunal was needed following the European Court of Human Rights judgment in the Tinnelly and McElduff cases, in which the United Kingdom was found to be in breach of Article 6 of the convention, as no right of appeal existed against the issue of a national security certificate. In establishing the new tribunal, the Government's intention was to ensure that where a certificate was necessary in court and fair employment proceedings the individual concerned would have an opportunity to challenge it.

The tribunal provisions were generally supported by your Lordships, perhaps most notably by the noble Lord, Lord Lester of Herne Hill, who made the very helpful comment in supporting the tribunal provisions that, although he would much prefer an entirely open adversarial system, he did not think that it was realistic to go that far in the context of national security claims of this kind. I think the noble Lord's comments reflected precisely the dilemma which exists in attempting to secure as far as possible the rights of the individual when judged in the national security context. The Government continue to believe that the tribunal

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provisions strike the right balance between underpinning the rights of the individual and national security considerations.

I should also add that national security certificates are a very rare event. In the history of the certification provision in Northern Ireland, some 44 certificates have been issued since 1976 and none has been issued since 1994. The tribunal might therefore be seen as a two-way safety net: to protect national security considerations where Ministers find it essential to do so through the certification procedures and as a safeguard for the individual where a certificate is indeed necessary.

I should also just like to say a few words to remind your Lordships of the function of the tribunal. It will consider whether the act certified was indeed undertaken for reasons of national security, public safety or public order. But it will also consider whether the doing of the act was justified by the purpose stated in the certificate.

Before turning to the rules, I should explain briefly the various ways in which an appeal to the tribunal could arise. Section 90 of the Act, which establishes the tribunal and gives it its function, provides that it will hear appeals against certificates issued in proceedings where a person claims that an act discriminated against him in contravention of Section 24 or Section 76 of the Northern Ireland Act 1998. It is also the Government's intention that where it is necessary to issue a certificate in proceedings before a fair employment tribunal or an industrial tribunal the individual concerned will have a right of appeal to the Northern Ireland Act Tribunal in exactly the same way. This will be achieved through Articles 80, 96 and 97 of the Fair Employment and Treatment Order 1998, which will add to the tribunal's remit certificates issued in accordance with that order, the Sex Discrimination Order and the Race Relations Order. The commencement order to bring the tribunal into force, once the rules are passed, will make transitional arrangements to establish the tribunal, given the apparent likelihood that it will come into force before Sections 24 and 76 are commenced.

The tribunal is modelled closely on the Special Immigration Appeals Commission, and we have therefore attempted in these rules to provide similar procedural arrangements. There is, however, one key difference: the Secretary of State will not necessarily be the party who carried out the act complained of. The other party might, for example, be a private sector employer. The rules therefore give the Secretary of State some access to the proceedings, given that it is her certificate which is under appeal.

I turn now to the key provisions of the rules. The first key measure is that the tribunal will be placed under a general duty to secure that information is not disclosed contrary to the interests of national security, public safety or public order or in any circumstances where disclosure is likely to harm a public interest. That is an essential feature as one limb of the Government's aim is to ensure that sensitive intelligence material remains protected.

The second key provision is the Attorney-General's ability to appoint a special advocate to represent the interests of the individual where--for reasons of

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national security, public safety or public order--it is essential to withhold from him sensitive material, or to exclude him and his usual representative from the proceedings. Your Lordships will want me to say a few words on this key principle given the concerns raised about it when the Northern Ireland Act was before another place last year.

The special advocate arrangements have precedent in the Special Immigration Appeals Commission. They have a statutory basis both in respect of that commission and this tribunal and the arrangements are essential to balancing the interest of the individual and national security interests. They go as far as the Government believe it is possible to do without compromising national security and they provide an individual with a form of representation in the proceedings. That is the second limb of the Government's aim.

Concerns were raised in another place about these arrangements as a matter of principle. As the noble Lord, Lord Lester, pointed out, our starting point for any proceedings where the interest of an individual are at stake should be a fully open adversarial system. But it is simply not possible to provide such a system in this instance without compromising national security. And the ECHR judgment in the Tinnelly and McElduff cases did not require such a system to be adopted. In finding a breach of Article 6(1) of the Convention, the court pointed out that:


    "in other contexts it has been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence and information and yet afford the individual a substantive degree of procedural justice".

The special advocate arrangements are central to achieving precisely that position. The Government are of course aware that the special advocate arrangements have been called into question by the Bar Council of Northern Ireland. They believe that because a special advocate is not responsible to the individual he represents, that to accept instructions on this basis may be contrary to its code of conduct. However, the Bar Council recognises that that is a matter on which individual barristers will need to take a view.

The Government are respectful of the Bar's position but continue to believe that no other arrangement would afford an individual the opportunity of representation in proceedings when national security interests are at stake. The special advocate arrangements have a statutory basis. I am also aware that barristers who accept instructions to appear as special advocates in England and Wales fearlessly represent the interests of individuals before the Special Immigration Appeals Commission. I have no doubt that barristers who accept instructions to appear before this tribunal will do likewise. The current position is that the special advocate arrangements remain under consideration by the Bar in Northern Ireland and the Government look forward to hearing its position in due course.

The rules make further provision for the role of the special advocate and the format of the appellant's notice of appeal; the format of the reply by the other party and the Secretary of State. The rules also provide a mechanism for the tribunal to consider objections to disclosure and other procedural matters necessary to

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ensure that the tribunal is able to reach its own view on the matters before it. Where it is possible to do so, the tribunal will publish the reasons for its determination, albeit without disclosing information contrary to the public interest. Ultimately, it is open to the tribunal to uphold or strike-down the certificate. Finally, the rules provide for appeals to the Court of Appeal in Northern Ireland on a question of law arising from a determination by the tribunal. I invite your Lordships to approve the rules. I beg to move.

Moved, That the draft rules laid before the House on 5th July be approved [25th Report from the Joint Committee].--(Lord Dubs.)

2.45 p.m.

Baroness Anelay of St Johns: My Lords, I rise to express these Benches' support for the making of the rules. I am grateful to the Minister for explaining them with such care and for the particular attention he paid to the representations made by the Bar Council of Northern Ireland regarding the special advocate arrangements. I have listened carefully to the way in which he dealt with those matters.

Can the Minister tell us whether the Government have any plans to meet the Bar Council of Northern Ireland in the future, so that it will be possible to review the operation of the system once the order is in place? We support the order.


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