rose to move, That the draft rules laid before the House on 5 March be approved. 12th Report from the Statutory Instruments Committee.
The noble Lord said: My Lords, I welcome this opportunity to explain the two sets of rules that were laid before the House on 5 March and debated by the Delegated Legislation Committee in another place on 28 March. Due to their similarities we are considering both sets of amended procedure rules in one debate. The changes are largely procedural, and I believe they make the rules more robust, clear and comprehensive.
Although there is no statutory requirement to consult on these rules, which are outside the supervision of the Council on Tribunals, there has been a lengthy and detailed consultation with a broad cross-section of parties interested in the SIAC and POAC remit over the past year. That has involved continuous communication with representatives of the Home Office, the Special Advocates Support Office, special advocates, Treasury solicitors, the Foreign and Commonwealth Office, the security services and the SIAC and POAC chairmen. Those interested parties participated strongly in the development of both instruments. Consulting with the special advocates was very important, given that the bulk of the procedures being amended relate to that part of the process in which the special advocates are heavily involved; that is, the procedures for closed material, to which I shall return later. Independent from Government, the special advocates provide a balanced and critical contribution.
The Special Immigration Appeals Commission, or SIAC, was created by the Special Immigration Appeals Commission Act 1997 to hear specific immigration and asylum appeals that cannot be dealt with by the Asylum and Immigration Tribunal for national security or other public interest reasons, which can include deportation and deprivation of citizenship appeals. Where the appeal contains evidence that cannot be made public due to national security considerations, there are closed sessions, for the purposes of which the appellant is represented by a special advocate. SIAC fulfils an important role. It was introduced to provide independent judicial oversight of immigration decisions taken by the Executive relating to people suspected of involvement with terrorism. SIAC has proven a robust judicial process.
The rules being considered today amend the Special Immigration Appeals Commission (Procedure) Rules 2003, which prescribe the procedure for appeals to SIAC. The amendments serve three key functions. They formalise the practices that have grown over time; they bring the 2003 rules up to date with relevant counter-terrorism legislation since 2003; and they clarify aspects of procedure. Perhaps I may say a few words in more detail about the rules.
The amendments to the rules clarify a number of provisions and place existing SIAC practices on a procedural footing, including the practice of holding an early directions hearing to agree case management aspects of the appeal. Consultees provided useful and detailed contributions into the rules on this practice.
The rules also establish procedures for the Home Secretary to file exculpatory material—material that supports the appellant’s case or undermines the Home Secretary’s own. The new rules accord with current SIAC practice, in which the obligation to file exculpatory material is ongoing.
SIAC has a general duty to secure that information is not disclosed contrary to the public interest. Where the Home Secretary intends to rely on closed material—material which cannot be publicly disclosed for reasons of national security—a special advocate is appointed by the Attorney-General to represent the appellant. The special advocate has access to all the closed material. The rule amendments make the special advocate’s role in proceedings clearer. They make it clear where documents should be served on the special advocate and that special advocates may adduce evidence and cross-examine witnesses.
The rules set out clearly the process by which SIAC deals with objections by the Home Secretary to closed material he wishes to rely on being disclosed to the appellant. Reflecting practice that has recently evolved within SIAC, the rules require the Home Secretary to serve on SIAC any closed material served on the special advocate which is edited or revised on grounds other than legal professional privilege. The Home Secretary must also provide to SIAC explanations for the revisions. It is for SIAC to determine the extent to which the revisions are permitted. Stakeholders had significant input into the establishment of procedures for this type of evidence, edited material and closed material generally.
SIAC must produce a written determination giving reasons for its decision, to the extent that it is possible to do so without disclosing information contrary to the public interest. Where the determination does not contain full reasons, the commission must serve on the Home Secretary and special advocate a separate determination.
The amended rules permit both the special advocate and the Home Secretary to apply to SIAC for directions that the open or closed determination be amended on public interest or national security grounds.
As I mentioned earlier, new legislative provisions have led to some of these rule amendments. First, the Prevention of Terrorism Act 2005 repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001. The 2005 Act introduced control orders, procedures for which are dealt with by the High Court and are set out in the Civil Procedure Rules, Part 76. The amendments to the SIAC rules remove references to the 2001 Act, and make the rules consistent, where appropriate, with the Civil Procedure Rules.
The year 2006 saw the introduction of the Immigration, Asylum and Nationality Act. Section 7 made deportation appeals with national security aspects non-suspensive, meaning the appeal can be made only after removal from the United Kingdom. Where the appellant has made a human rights claim, the appeal can be brought from within the UK, unless the Home Secretary has certified that removal would not breach the ECHR. An appeal can be made to SIAC against the issue of such a certificate, so the remit of the rules is being extended to cover such appeals.
I would now like to say a few words on the POAC rules. The Proscribed Organisations Appeal Commission was created by Section 5 of the Terrorism Act 2000 to deal with appeals against refusals by the Home Secretary to deproscribe organisations believed to be involved in terrorism. Proscribed organisations are listed in Schedule 2 to the Act. As with SIAC, when the Home Secretary intends to rely on closed material the appellant’s interests are represented by a special advocate. Proscription is a significant part of the Government’s efforts to defeat terrorism. POAC is important as it provides for impartial judicial oversight on proscription decisions by the Executive. The rules being considered today replace the 2001 POAC rules with a clearer, more comprehensive set of rules, up to date with recent legislative developments in counter-terrorism and consistent with the SIAC rules where appropriate.
The rules require updating to take account of Section 22 of the Terrorism Act 2006. This amends the Terrorism Act 2000 to enable the Home Secretary to specify alternative names when a proscribed organisation is operating under more than one name. It allows for an appeal to POAC when the Home Secretary refuses to change the order specifying alternative names. Additionally, the POAC rules are brought up to date with key SIAC provisions, in so far as the two commissions’ procedures are similar. The provisions for an early directions hearing for the ongoing filing and service of material for dealing with the editing of closed material are reflective of SIAC.
Finally, there are technical amendments to add clarity.
To sum up, these two sets of draft rules continue our strong efforts across the asylum and immigration and counter-terrorism field to ensure a robust and effective system for dealing with appeals which have national security aspects. They strike a balance between the need to deal robustly with the terrorist threat and the need for fairness and scrutiny of decisions.
I commend these draft statutory instruments to the House. I beg to move.
Moved, That the draft rules laid before the House on 5 March be approved. 12th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)
My Lords, I have to admit that I am not totally familiar with the Special Immigration Appeals Commission (Procedure) Rules 2003, and similarly I am rather weak on the Proscribed Organisations Appeal Commission rules—abbreviated by the Minister to POAC. I am very grateful to him for his very detailed explanation of why we need the changes to the two sets of rules and the fact that he took care to explain at such length exactly why they need to be changed. I am also grateful to him for stressing that the Government had consulted all the appropriate bodies that it was necessary to consult. Having said that, I have no questions for him, for which he will no doubt be very grateful.
My Lords, I shall be brief. First, we accept the reasons given by the Minister. These measures bring SIAC up to date with the counter-terrorism legislation to formalise practices that have evolved during the operation of SIAC and bring clarity to procedures. We have no difficulty with that. This matter has been discussed for years; this is not something new. Over a period of time a number of appeals have been made against the decision-making process on the basis of which rules have to be amended, and it is right that we should do so. Accordingly, I am happy with the amendments proposed today.
Although the Minister said that the process is robust, I should like him to think carefully about the comments made by the Constitutional Affairs Committee in 2005, especially in relation to special advocates and facilities, the information available to them and whether they can perform their task adequately. Will the Minister consider that point? I do not want an explanation at this stage. That concern was raised in the other place and I raise it here.
On the POAC rules, I agree entirely that if there are name changes and organisations operate under different names while engaging in activities that are detrimental to this country, it is right and proper that we should do everything we can to protect our security and safety. We support both sets of rules.
My Lords, I am most grateful to the noble Lords, Lord Henley and Lord Dholakia, for their comments on these two sets of rules. I absolutely take on board the point made by the noble Lord, Lord Dholakia. I undertake to write to him on that in the next few days. I again express my gratitude to both noble Lords.
On Question, Motion agreed to.