PROCEDURE (Hansard, 17 June 1971)

§ Mr. Maudling
I beg to move Amendment No. 60, in page 21, line 18, to leave out 'for so long' and insert: 'while the allegation at (b) above is inquired into by the adjudicator or Tribunal and, if it appears to the adjudicator or Tibunal that the allegation is made out, for such further period '.

§ Mr. Speaker
With this Amendment we can also take Amendment No. 61, in page 21, line 18, at end insert: ' determine whether the said allegations are substantiated; and if they are held to be substantiated, for such further period as is necessary to '.

§ Mr. Maudling
This is an interesting point which arose during the discussion. Where it is alleged that a passport or other travel document is a forgery and this is to be disputed, the question arises of methods whereby forgeries are detected. The House will be aware that this information can in certain cases help the passport forgery industry, which is a very flourishing one in certain parts of the world. It is therefore important to ensure that in circumstances where disclosure might damage the protection of legitimate passports against forgery, and disclosure could be damaging, it should be prevented. It was intended that the decision to take evidence in private should be in the hands of the tribunal. As my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) suggested, the drafting of the Bill did not make this absolutely clear. Therefore, we introduce this Amendment to make it absolutely clear that evidence should be held in camera only when the tribunal decides that it is right in the national interest that this particular evidence should be taken in camera. I believe this meets the feelings on both sides of the Committee.
I believe our Amendment is a little better than the alternative offered by the Opposition because it is not quite so wide. If I read it aright, hon. Gentlemen opposite would allow the tribunal to decide to hold evidence in camera while considering either (a) or (b) under subsection (3); whereas we confine our Amendment to (b). In other words, the question of whether, if there is forgery alleged, evidence should be heard in open court arises in our Amendment only when it comes to a question of methods of detection; and if the tribunal thinks fit evidence on that particular point should be given in camera. I believe the Amendment I am proposing meets the purposes of the Committee. It is largely of a clarificatory kind and meets the requirement of those who discussed it.

§ Mr. S. C. Silkin
In Committee the error in the drafting of the Bill as it originally stood was pointed out to the right hon. Gentleman by myself and on that occasion I had the support, eventually, of his right hon. Friend. The right hon. Gentleman having said that he hesitated to dispute with me about the interpretation of Bills somewhat arrogantly went on to do so and maintained his attitude right through the whole of the debate until, eventually, he was good enough to say he would look again at the draft. Now, apparently, he has found that we were right and has put the matter right. We in our Amendment No. 61 were seeking to accomplish precisely the same thing as he was. He tells me there is some difference. He may be right, because I hesitate to dispute with the right hon. Gentleman about the interpretation of Amendments; however, as we have the same objective in view I am prepared to accept his Amendment.

§ Mr. Clinton Davis (Hackney, Central)
It was said during the debates we had in Committee on this aspect of the matter that this was a dangerous concept; and I believe it was widely recognised that to exclude an appellant from any part of the proceedings is something at which one ought to look very carefully. There can be no doubt at all that there are certain instances which have been postulated by the right hon. Gentleman where for the evidence to be divulged in public, and in particular to the appellant, could be dangerous as far as the security of the State is concerned. He made particular reference to a situation where one had a massive forgery business so far as passports were concerned, but nevertheless while one recognises the difficulties facing the Executive in circumstances such as this, we have to be extremely vigilant about how this kind of procedure is to operate in practice.
The question I would like to ask the right hon. Gentleman so far as procedure is concerned is this: how does he envisage that those representing the Secretary of State before the tribunal would attempt to make out a case to the satisfaction of the tribunal that it is necessary that part of the proceedings should be held in secret? Is it envisaged that some evidence would have to be adduced or that a mere statement by the counsel 669 representing the Crown would be sufficient? This is a vital concern.
Obviously, if the Crown intends to rely merely on an assertion that it would be inimical to the interests of the State for the evidence to be given in public or in the presence of the appellant, that could not be challenged. It would be a mere assertion. But if it is envisaged that evidence can be produced, how will this assist the Crown? Would it not in fact defeat the purpose of the Amendment?
There is a real difficulty here. The Amendment says that if it appears to the adjudicator or tribunal "that the allegation is made out", this course shall be followed. So it is important to know what procedure the right hon. Gentleman envisages. If the adjudicator or tribunal is merely to be a rubber stamp, if those who represent him say, "This is a matter of fundamental importance, the interests of the State may be affected by this, and therefore we urge you to find that this is a matter where the evidence should not be held in public," that is not a very effective safeguard. So I would ask the right hon. Gentleman to say what he has in mind here.

§ Mr. Maudling
The hon. Member is not quite so much on the ball as usual. The point is that if the Crown maintains that the disclosure of detection methods is not in the national interest, it has to satisfy the tribunal, which must then determine what evidence it wants. It is not for me to determine the form of the hearing or what evidence should be put forward.

§ Mr. Clinton Davis
Before the right hon. Gentleman sits down. With respect, he must have some idea of how this procedure will work. Clearly no tribunal could possibly be satisfied that a case of this kind should be held in public on the mere say-so of those representing the Home Secretary. So does he envisage that it will be necessary for some evidence to be introduced? Would that not destroy the whole of the argument on which he based his case in Committee?

§ Mr. Maudling
With respect, if the tribunal wants evidence, as it certainly will, it will be disclosed to it, but the whole point is that it will be disclosed to the tribunal and not to the appellant.

§ Mr. Robert Hughes (Aberdeen, North)
To take this point a little further. The kind of information which we are seeking is this: will those laying evidence on behalf of the Crown apply to the tribunal to have the particular evidence heard in camera? Presumably, once that is done, the tribunal will go into private session and look at the evidence. If it is satisfied that the evidence is of national importance, will it then be open to the tribunal to say that that evidence could not be challenged by the appellant?
Has the tribunal the right to say, "We do not think that this evidence is so important that it should not be available to the public. We will therefore go back into open session and the Crown must then lead its evidence in public before the appellant, so that it can be challenged"? When the Home Secretary says that it is the tribunal's duty to decide, is he saying that it will be the duty of the tribunal to decide whether the evidence which it has heard in camera shall remain so or not? If he can assure us on that, some of my doubts, if not all of them, will be removed.

§ Mr. Maudling
I do not see the problem here. Where it is alleged that disclosure to the party concerned, in other words, the appellant, of any matters relating to the method of detection would be contrary to the public interest, the adjudicator or the tribunal shall arrange for procedures to take place in the absence of that party and his representatives while the allegation that this information should not be disclosed is inquired into by the tribunal.
In other words, if our people say, "We cannot disclose to the party concerned the method of detection," they will have to satisfy the tribunal that that is a good point. If we satisfy them, it will be accepted, and if we do not, that is too bad.

§ Mr. Clinton Davis
Before the right hon. Gentleman sits down. We are at cross-purposes on this. I envisage the situation as being in two parts—

§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
Order. The hon. Gentleman is not in Committee. He must ask leave of the House to speak again.

§ Mr. Davis
I was trying to speak before the right hon. Gentleman sat down, but in order to safeguard the situation beyond all reasonable doubt, may I have leave of the House?
The situation falls into two parts. The first is the application made by those representing the Crown that certain evidence is likely to fall into this category. Second, if the tribunal considers that the evidence falls into this category, it conducts the inquiry into the evidence itself in the absence of the appellant.
But am I not right in asserting that, when the Crown makes its application, the appellant is then present and can challenge whatever is put forward? It is only when the tribunal gives leave to the Crown that the appellant disappears from the scene. So there is a real procedural difficulty.

§ Mr. Maudling
The hon. Member is making terribly heavy weather of what is a quite straightforward matter. The Crown says that something is a forgery and may in certain circumstances say, "We have certain evidence which we cannot dislose to the appellant". The tribunal says, "You must prove to us that this evidence should not be disclosed," and that is heard in private. If the tribunal is satisfied that it should not be disclosed then it is not. If the tribunal is not satisfied that it should not be disclosed, then it must be disclosed or the case must be dropped.

§ Mr. S. C. Silkin
During this interesting discussion, it has occurred to me that a point arises under the Amendment which the Government might consider. I am not asking for a reply at the moment, but the hon. Gentleman will see in line 19 the words "those matters", which, as the Clause stands, clearly refers to paragraphs (a) and (b). In fact, by the time we get to those matters, after his Amendment has been inserted, paragraph (b) will have been disposed of. So it looks as though those are not the most apt words. Some consequential Amendment may be necessary. Perhaps the Home Secretary will look at that.

§ Mr. Maudling
Certainly.