Second Standing Committee
on Delegated Legislation
Tuesday 23 April 2002
[Mr. David Amess in the Chair]
Draft Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I beg to move,
That the Committee has considered the draft Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002.
It is a pleasure to serve under your chairmanship, Mr. Amess.
It may help hon. Members if I explain the background to the drafting of the rules. The Terrorism Act 2000 gives the Secretary of State the power to proscribe an organisation if he believes that it is involved in international or domestic terrorism. Such proscribed organisations will be added to the list in schedule 2.
Hon. Members may recall that when he introduced the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 to the House in March last year, my right hon. Friend the Foreign Secretary—then the Home Secretary—described how, for the first time, the Act gave the Secretary of State the power to proscribe not only those involved in terrorism connected with the affairs of Northern Ireland but terrorist organisations involved in international or domestic terrorism. He also recalled that Parliament had discussed at some length why it was necessary to extend proscription. He concluded that such powers were necessary to help to ensure that the UK did not become a base for international terrorists or their supporters. Organisations proscribed under the order were added to the list in schedule 2.
The Act rightly also recognises how important it is for any organisation proscribed by the Secretary of State to have the right of appeal against that decision. Any proscribed organisation, or any person affected by an organisation's proscription, may apply to the Secretary of State to remove the name of that organisation from the list in the schedule. If the Secretary of State refuses that application, an appeal may be made against the refusal to the Proscribed Organisations Appeal Commission, which may also hear appeals against such a refusal under section 7 of the Human Rights Act 1998.
Simon Hughes (Southwark, North and Bermondsey): To put that in context, how many of the proscribed organisations have applied to the Secretary of State for the proscription to be removed, and how many such applications have been refused? How many—and which—organisations have applied to the Proscribed Organisations Appeal Commission for a review?
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Ms Winterton: Three organisations have appealed to the commission: the Lashkar e Tayyab, the International Sikh Youth Federation, and the Mujaheddin e Khalq.
The legislation also provides for further appeal from the commission's decision 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.
The rules apply to proceedings before the Court of Appeal when hearing an appeal against a decision of the commission. The provisions for the rules are set out under paragraph 5 of schedule 3 to the Terrorism Act 2000. The rules are straightforward and 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, the detection and prevention of crime or in any other way that is contrary to the public interest.
Mr. William Cash (Stone): Will the Minister explain the meaning of
''when disclosure is contrary to the public interest''?
Under what discretionary power would the court operate in those circumstances?
Ms Winterton: I should stress that by the time an appeal has reached the Court of Appeal, it would be decided as a question of law. Issues about the sort of information before the court are relevant. It may not be the same as before the commission, when wider information is often made available. It is for the Court of Appeal to decide whether, following representations from organisations such as the security services, the circumstances are such that the public interest would be affected.
As I was saying, the Court of Appeal may exclude any party other than the Secretary of State and his representative from proceedings. I should stress—another point that relates to the hon. Gentleman's question—that the discretion of the Court of Appeal to exclude a party can be used only in so far as it is necessary to secure that information is not disclosed contrary to the public interest.
Mr. Cash: Have consultation and discussions with the judiciary taken place on the particular issue of the powers now to be conferred on the Court of Appeal?
Ms Winterton: Discussions have taken place with members of the senior judiciary. I shall try to establish more exactly who was consulted, but consultation has certainly taken place. I shall return to the hon. Gentleman with further details later.
Paragraph 7 of schedule 3 to the Terrorism Act 2000 provides for the appointment of a special advocate by the Attorney-General to represent the interests of an organisation excluded from proceedings. I should also emphasise that appeals to the Court of Appeal are on a question of law only. The commission will already have considered questions of fact, which are more likely to give rise to issues of disclosure, under its rules of procedure. Those rules provide for detailed procedures, in which the special advocate has a role in deciding whether material can
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be disclosed. There is no statutory requirement to consult on the rules, but as they involve the Court of Appeal, we consulted members of the judiciary and sent a copy of the rules to members of the Civil Procedure Rule Committee.
Mr. Cash: I am grateful for the Minister's clarification on consulting the senior judiciary, which is obviously important. However, will she also explain under what powers the role of the special advocate will be discharged and what discussions have taken place about his appointment?
Ms Winterton: The special advocate is appointed initially if the commission wishes to consider evidence during its deliberations that might affect the public interest if it were disclosed to an organisation or its representatives.
The special advocates are appointed by the Attorney-General. The system for doing so and the qualifications that special advocates should have are set out in the Act itself. The special advocate is designated by the Attorney-General. The name of the person allocated by the Attorney-General to represent an organisation is sent to the organisation. If it is unhappy because it feels that there is a conflict of interest it can challenge the decision.
Simon Hughes: Has the Attorney-General already made rules dealing with the appeal to the commission, as opposed to the appeal from the commission to the Court of Appeal? If so, are the provisions relating to representation the same? I ask because the schedule says that the relevant law officer ''may'', not ''shall'' appoint a person. Does that mean that someone could be unrepresented if the law officer decided not to appoint someone to represent them?
Ms Winterton: Yes, the rules governing the commission have been laid. Perhaps I can clarify this. A special advocate is appointed if the commission or the court will look at evidence or representations that, it is felt, should not be disclosed to the organisation, because anyone who saw the information would have to be properly vetted. It comes at it from the other direction. The special advocate is appointed only if it is felt necessary to exclude the organisation or its representatives. That will not necessarily happen on every occasion. I hope that that explains the situation. I recommend the rules to the Committee. In my view, they are compatible with the European convention on human rights.
Mr. Cash: I am glad to serve under your chairmanship for the first time, Mr. Amess. Important questions are raised here. The fact that it is a fairly slim instrument does not alter the fact that a number of difficult issues could arise if there were any attempt to use the rules in an unreasonable manner. We must assume, because this is in the hands of the Court of Appeal, that that will not be the case. After all, this is something that has been discussed with it. I was glad to hear that. I am slightly surprised—I do not wish to be overcritical—that the Minister did not lead with the fact that there had been such consultations. I know from what she said that there was no strict requirement to hold them. On the best principles of
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constitutional law regarding conventions, however, I would have expected those consultations not only to take place, but to have been put at the front of the proposals.
I just want to enlarge on that, because we are dealing—no doubt for reasons of public interest that are well understood by the security services and others—with arrangements that, on the face of it, would represent a substantial denial of justice if they were applied in any other circumstances. These special circumstances arise only on the grounds that this is a matter of national security and, I repeat, it is being handled as a matter of law by the Court of Appeal.
Opposition Members are extremely jealous of the privileges and rights of persons who are alleged to have committed criminal acts. However, having regard not only to the events of 11 September but to acts with which this country has become familiar over an extremely long time, we of course recognise that special circumstances can arise in respect of terrorist acts. We were therefore extremely glad not only that the Terrorism Act 2000 was passed, but that the Anti-terrorism, Crime and Security Act 2001 was passed, albeit with some adjustments that we felt were necessary. That said, we are on all fours with the Government on questions of national security.