§ Amendment made: No. 1, in page 5, line 14, at end insert—
§ '(4) In section 33(4) of the Immigration Act 1971, after "1993" there shall be inserted "or section 7 of the Special Immigration Appeals Commission Act 1997".'.—[Mr. Mike O'Brien.]
§ Order for Third Reading read.
7.17 pm§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)I beg to move, That the Bill be now read the Third time.
We are now concluding Parliament's examination of the Bill. I am grateful for the thorough, constructive and helpful approach that Opposition Front Benchers and others have displayed, here and in Committee. The desire of all is to ensure that this is a good and effective Bill.
The amendments to the Bill are few in number. To a considerable extent, that is a reflection of the detailed and worthwhile scrutiny that the Bill was given in another place. Everyone recognises that it is a necessary Bill. Its general content has been governed by the terms of the European Court of Human Rights judgment in the case of Chahal. It is about creating the right balance between the liberty of the individual and the safety of the state.
In the circumstances, I do not propose to speak at length; however, I shall take the opportunity to refer to the amendments that the House made to the Bill and explain why the right of appeal from the commission that has been created is more limited than the Opposition have not unreasonably, advocated. Clause 7 now provides an avenue of appeal from the immigration appeals commission to the Court of Appeal on a question of law. Before the clause was added to the Bill, there was no right of appeal from a decision of the commission for either party to the appeal.
The inclusion of that avenue of appeal on a point of law mirrors the existing arrangements for such a right of appeal in respect of decisions of the immigration appeal tribunal. It is not an appeal on the facts. As I explained in Committee, it will be more satisfactory for points of law to be dealt with on appeal to the Court of Appeal rather than by way of judicial review to the divisional court and then to the Court of Appeal.
We have not introduced a more general right of appeal from the commission on the facts for either the appellant or the Secretary of State. We take seriously the concerns expressed by Opposition Members about the importance of protecting the interests of national security in the small number of difficult cases where there will, in future, be a right of appeal to the commission. It is because we share those concerns and because the European Court of Human Rights accepts that these cases raise particular difficulties that we are proposing procedures that will restrict the rights of appellants.
1033 On Second Reading, the hon. Member for Bexhill and Battle (Mr. Wardle) helpfully referred to the importance of having
a swift but fair appeal, independent of the Home Secretary".— [Official Report, 30 October 1997; Vol. 299, c. 1064.]That is a succinct explanation of what we are all trying to achieve in the Bill. The introduction of a right of appeal to an independent commission in these cases means that the commission will be in a position to overturn decisions made personally by the Secretary of State. Of course, any such decisions taken by the commission will be unwelcome to the Secretary of State, but it is an essential aspect of complying with the Chahal judgment that the commission should be able to take decisions, rather than only make non-binding recommendations in the manner of the three advisers who formerly acted in such cases. The commission will be well aware of the significance of its decisions, whether those decisions support the Secretary of State's decision, or otherwise.Although the Bill establishing the commission has not quite finished its parliamentary progress, I shall take this opportunity to inform the House about an important development. Schedule 1 to the Bill makes provision for the Lord Chancellor to appoint a chairman from among the members of the commission, one of whom must hold or have held high judicial office. I am pleased to inform the House that my right hon. and learned Friend the Lord Chancellor has decided to appoint Mr. Justice Potts, a High Court judge since 1986, as chairman of the Special Immigration Appeals Commission when it is established. Mr. Justice Potts has widespread experience of immigration cases, was a presiding judge of the northeastern circuit from 1988 to 1991 and was vice-chairman of the Parole Board between 1992 and 1996. Other appointments to the commission will be made by the Lord Chancellor following Royal Assent.
The Bill will help to ensure that our procedures for dealing, within the immigration context, with those alleged to be terrorists meet accepted standards of fairness. It is a comparatively straightforward matter to accord decent civil rights treatment to decent reasonable people. It is much more difficult to give the same sort of treatment to those who behave in ways that are abhorrent to most people. It is, however, a mark of a civilised and civil society that we accept the need to do so. I commend the Bill to the House.
§ Mr. James Clappison (Hertsmere)I intend to make only brief remarks, as this has not been a contentious piece of legislation; but there are one or two points I must make. First, I am grateful to the Minister for his kind remarks and, if I may reciprocate, he has approached the Bill with a commendable spirit of openness. We on the Opposition Benches hope that that attitude will last.
We, too, have been concerned to strike the balance to which the Minister referred, between the rights of the individual—the appellant—and the interests of national security. We believe that the Bill has struck an appropriate balance and we agree with the framework that it creates. Foremost among our considerations have been the interests of national security, and it was because of our great interest in that subject that we suggested a right of 1034 appeal from the decisions of the commission. We are pleased that the Minister listened to our arguments and that there is at least a right of appeal on points of law. That is a change that we welcome.
I also welcome the Minister's announcement of the appointment of Mr. Justice Potts to be chairman of the commission. In earlier debate, we said that we approved of the general balance among the three members of the commission. We apprehended that it would consist of eminent people and I am sure that Mr. Justice Potts will be an eminent chairman. We wish him well in his work. I should declare something of an interest here, as Mr. Justice Potts and I are members of the same circuit, but I hope that that does not debar me from wishing him well in his endeavours. The cases that the commission hears will be sensitive cases, sometimes involving serious judgments as to national security and the rights of individuals. We wish the commission well in that important work.
Without wishing to inject any note of controversy into the debate, I think that the way in which the Bill has been amended—especially the amendment creating a right of appeal—as it has passed through its stages in another place and in this House holds valuable lessons for us. It is important that legislation of this sort, which ensures compliance with the European Court of Human Rights, should be subject to full parliamentary scrutiny and debate and is susceptible of amendment. The amendment the Minister has just described illustrates the value of full scrutiny and full debate, which is a point to which we might return during debates on another matter that will come to the House from another place.
I do not want to be controversial at this point, because the Bill has the support of the Opposition. It ensures compliance with the judgment of the European Court of Human Rights in the case of Chahal and it sustains our proud record of complying with that court's judgments. The Bill also does justice to the important considerations of national security and it has our support.
§ Mr. Richard Allan (Sheffield, Hallam)I, too, do not want to take up too much of the House's time on a Bill that commands support from hon. Members on both sides. I also thank the Minister for the way in which he has provided information to Opposition Members and made our job of scrutinising legislation more straightforward. That co-operation was much appreciated.
The Bill represents a most sensible response to the judgment of the European Court of Human Rights in the Chahal case and we look forward to a process whereby human rights will be placed at the heart of all our immigration and asylum legislation. We hope that the process of incorporating the convention on human rights into domestic law will help to make that more straightforward, so that changes will be introduced more quickly, instead of their having to go to Europe and then come back again. We look forward to watching the development of the process in our domestic courts as further asylum and immigration legislation is introduced.
I hope that all debates around the Minister's future pronouncements will be similarly uncontentious and constructive and that we shall be able to maintain the habit of talking constructively about immigration and asylum matters. The Bill is a sign of things to come.
§ Mr. Humfrey Malins (Woking)I, too, thank the Minister for the way in which he has approached the Bill. Throughout its passage, he has shown consideration and courtesy and his approach has been even-handed and sensible.
I shall make only a few remarks—I might have wanted to made some extensive and lengthy remarks, but it is probably better that I confine myself to taking only a few minutes of the House's time. The Minister knows that I approach this measure from a curious angle, having been involved in the inception of the Immigration Advisory Service, an organisation which gives free legal help and advice to those who have rights of appeal under immigration law.
My remarks may seem slightly slanted owing to my feeling about the need for justice not only to be done, but to be seen to be done. As a result of my concern that some of the worries that I expressed earlier in the Bill's passage have not been fully dealt with, I shall focus on those points for a few minutes tonight.
The Minister will remember that I was worried about clause 5(3)(a), which would allow the Lord Chancellor to make rules
enabling proceedings before the Commission to take place without the appellant being given …particulars of the reasons for the decision".I thought that that was a troublesome point. It laid the way open for no particulars at all to be given. I thought that it might make the appellant feel slightly handicapped, and that the lawyers might feel that they had one hand tied behind their back. I asked the Minister to comment on that at an earlier stage. I may be wrong, but I believe that the Minister has not come back to me on that point.Clause 5(3)(b) marginally troubled me at the time. The Minister was very helpful on it in some respects. It says that the rules could
make provision enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him".That really troubled me and I still feel troubled by it, because it could mean that the entire proceedings could take place in the absence of the appellant, his lawyer and the person appointed by the tribunal to represent him. That is an extreme position, but it is possible under the Bill.As I said on an earlier occasion, it is very difficult for the appointed person, first, to represent the interests of the appellant, which he is required to do under clause 6(1), which specifically says that he should
represent the interests of an appellant".It is difficult for him to do so in such circumstances. I am not sure that he will be able to. How does clause 6(1) then tie up with clause 6(4), which says that a person so appointedshall not be responsible to the person whose interests he is appointed to represent"?I detect a slight clash in the person so appointed being told that he is not responsible to the person whose interests he is supposed to represent, and I remain a little unhappy about it.One thing has become clear as the Bill has proceeded— that between the appointed person and the appellant there will be no lawyer-client relationship as we all understand 1036 it. I believe also—I will be corrected if I am wrong—that there will be no ability for the appointed person to speak freely and frankly to the appellant or, perhaps worse still, to the retained lawyer. In other words, the appointed person may hear matters that he cannot communicate to the appellant or to the retained lawyer.
It is all very well for the Minister to say, as he did, that
the special advocate"—the appointed lawyer—is there to ensure that the rights of the appellant are protected. That is what he is there for and that is what we hope he will do."— [Official Report, 30 October 1997; Vol. 299, c. 1072.]It is a very fair hope, but I am not sure how the special advocate can protect those rights when, first, he may be absent for all or part of the proceedings, secondly, he is definitely under constraints in his relationships with all the other parties and, thirdly, he cannot draft any grounds of appeal.I wonder whether my concerns about clause 5(3)(b) have been fully dealt with. I was worried about people's absence from the commission. In Committee, speaking about appeals, the Minister said:
It is unlikely that a point of law would arise in proceedings in which the special advocate alone was acting for the individual.Why should it not arise? It might well. It is all very well to say that it is unlikely that a point of law would arise in those proceedings where the special advocate alone was acting, but I wonder.The Minister said:
we do not envisage that during the hearing of evidence both the special advocate and the advocate for the individual would be absent. There would always be someone present.Would there? I wonder on what basis that might be said.The Minister continued:
members of the public will be present—for example"—these are important words—lawyers, other representatives"—who might they be?and members of the defence team."—[Official Report, Standing Committee D, 11 November 1997; c. 18.]I believe the Minister was trying to reassure me, but I return to the Bill, which says plainly that it is possible to hold proceedings in the absence of any person.I should like to make two short final points before I outstay my welcome.
§ Mr. Paddy Tipping (Sherwood)indicated assent.
§ Mr. MalinsI see Labour Members nodding. I had much more to say and I have tried to shorten it to be helpful.
There is provision for asylum cases to be heard in the tribunal and in the commission at the same time in parallel. As I may have said earlier, I have always believed that asylum cases should be hived off to an adjudicator and dealt with entirely separately. A connected point is that it seems to me that the House should ask the Minister for an assurance that if an asylum application not connected with national security is conducted before the commission, such a matter should be heard not in camera but openly.
1037 On an earlier occasion, in another place, there was discussion of the anomaly that might stem from the fact that under article 3 of the European convention on human rights we cannot deport a person who would face torture or other inhumane treatment if deported. Such cases might crop up occasionally before the commission. One can envisage someone appearing before the commission who is to be deported, who is thought to be a serious threat to this country but who, if returned to the country of his origin, would be likely to face torture or inhumane treatment.
Let us suppose that someone comes to the United Kingdom from Libya and is caught with the clearest possible evidence that he is about to commit an atrocity in this country. He fails to carry out the atrocity. Can he quote article 3 of the convention to say that we cannot move him away from this country because if he is sent back to Libya, he will be treated rather unkindly by the leaders of Libya for failure to carry out his duties? That is an odd situation. The man might be here for ever, plus his family, but I suppose we are stuck with that—that is how life is.
I had worries throughout the Bill's passage. The Minister has dealt with them, with me and with the rest of us most courteously. The very fact that I expressed those worries does not take me away from the fundamental point that, as my hon. Friend the Member for Hertsmere (Mr. Clappison) said, we support the Bill, which is a sensible and sound measure. Subject to my concerns, which I hope do not amount to much, I wish it a very fair wind in the times ahead.
§ Mr. David Winnick (Walsall, North)I shall not detain the House long because, as I explained on Second Reading, my interest is a constituency one. As the House may remember, my constituent, Raghbir Singh, was put in prison. No charges were laid against him. He was in prison for more than a year and the only reason for his release arose from the decision of the European Court of Human Rights in the Chahal case, which is the basis of the Bill.
I said at the time that it was not for me, as a Member of Parliament, to decide the guilt or otherwise of my constituent; I had no means of doing so. I made representations, as any Member of the House would have done in such circumstances. It is a very serious matter indeed for someone to be held in prison without charge: my constituent was in prison for more than a year, but one can imagine the feelings of the person who brought the case before the European Court of Human Rights, who was in prison for more than five years.
I have some concern. Like other hon. Members, I recognise that the Bill is undoubtedly an advance. I am pleased that it is, rightly, being brought into law, but one or two matters trouble me. I take the point made by the hon. Member for Woking (Mr. Malins) that it is a very serious matter to deprive a person of a lawyer, and when the Bill says that a person appointed in such circumstances
shall not be responsible to the person whose interests he is appointed to representthat does tend to go against the grain of the rule of law.1038 We all recognise—not least myself—that the commission could be dealing with very serious cases involving terrorism. None of us underestimates the dangers and the curse of terrorism; if we were minded to forget, we have only to remember the terrible crime committed in Egypt last week, including the murder of British citizens. I do not underestimate the difficulties, but if we want to act according to the rule of law we must be careful in the way in which we frame the legislation that is the basis of that law.
I want to mention a matter that I did not mention on Second Reading—the membership of the commission. The Bill says that one member of the commission will be a High Court judge, and the Minister told us his name today. Another member will be a person connected with the immigration appeals system—probably the chief adjudicator or a member or the president of the tribunal. As my hon. Friend the Minister mentioned on Second Reading, someone who has been connected with the Security Service will also be a member.
§ Mr. Mike O'Brienrose—
§ Mr. WinnickAm I wrong?
§ Mr. O'BrienJust to clarify the position, the third member will be someone who has experience of dealing with security matters, not necessarily someone who is a member of the Security Service. It may be a past senior civil servant, perhaps from the Home Office or another Department, who has had some experience of dealing with security matters and who knows how those procedures and organisations operate, but it is not, at this stage, envisaged that the person will be a serving member of the Security Service.
§ Mr. WinnickI put it clumsily. I did realise that it would be someone with experience of security matters, but it was right that my hon. Friend the Minister corrected me. However, the commission's membership may be such that I am a little concerned—I put it no higher than that— that an appellant will find it difficult, through his or her representative, to persuade the commission that the Home Secretary's decision was wrong. There is no one there to balance it up, as it were, from a civil liberties point of view. I had that concern on Second Reading and I should have expressed it then.
Although, like other hon. Members, I believe that the Bill is undoubtedly an advance, the sort of imprisonment that my constituent suffered should not occur again. For the reasons that I and the hon. Member for Woking have stated, there is reason to feel some concern and some apprehension as to whether justice will be done.
§ Mr. Mike O'BrienWith the leave of the House, I thank all hon. Members for the constructive way in which they have contributed to the debate. I again thank the spokesmen for the official Opposition and the Liberal Democrats for their contribution and the constructive way in which they have made it.
The hon. Member for Woking (Mr. Malins) has spoken in several debates on the Bill and has always raised important and sometimes difficult issues. The rules made by the Lord Chancellor will be subject to affirmative 1039 resolution and the draft of the rules has already been made available to the House. As it makes clear, the powers to limit the rights of appellants will be very carefully exercised. The whole point of the Bill is that the rights of appellants cannot be those that would normally apply in other courts—simply because of the nature of the proceedings with which we are dealing. However, let me try to address some of the issues that the hon. Gentleman raised, without taking too long to do it. They are important and should be addressed. Many people would argue that, for lawyers, they are fundamental points.
The hon. Member for Woking raised clause 5(3)(a) and (b). Clause 5(3)(a) provides for proceedings to take place
without the appellant being given full particulars of the reasons for the decision".That is true in the sense that national security matters that we are seeking to have excluded from the appellant's knowledge will not be disclosed to him at any stage. That is for obvious national security reasons.There is a legitimate view that that is regrettable, but it is probably necessary. It is part of the difficult balance between the rights of the individual and the needs of the state to protect its national security. I do not think that we are ever going to get this entirely right—where we have absolute rights for the individual and still preserve national security. In the Bill, we try to make the most sensible, reasonable and balanced judgment that we can.
On the way in which the special advocate—the appointed person, as he is described in the Bill—will operate, it is right that the lawyer appointed directly by the appellant may not be present during part of the proceedings. He may, of course, be present during the whole of the proceedings because they might take place without having to go into camera. However, we may need to go into camera, so let us deal with that situation.
The appellant's lawyer will then be absent. Under clause 6, the special advocate has an obligation to seek to represent the appellant's interests without taking instructions from him. As I have mentioned in previous debates, that is not completely unprecedented. Perhaps it has never been done on this scale and in this way, but it happens in cases involving people with psychiatric problems and with minors. Their lawyer sometimes has to exercise independent judgment in the way in which he represents that person.
I accept that we are taking it a step further—the special advocate must make a judgment about the way in which the appellant would have wanted his case argued. He will not be expected to take instructions, but he will be sitting through the whole of the proceedings, so he should be fully aware of the case that is being put by the appellant and be able to move forward on that case when he goes into camera. The position may not be ideal—I could not argue that it is—but it is the best balance that we can reach in seeking to protect national security and in ensuring that the appellant has rights consistent with the convention.
The hon. Member for Woking raised the important point of what happens if a point of law arises when the appellant and his lawyer are absent. That is unlikely—I repeat that it is unlikely—because of the very nature of what we are dealing with. The appellant and his lawyer should be absent only when a factual matter relating to national security is in issue, or when something that cannot be disclosed to the appellant or his lawyer arises.
1040 In those circumstances, it is difficult to see when a point of law is likely to arise, but it is not impossible. I envisage that the commission might consider if it wished the Court of Appeal to consider a point of law. It would perhaps raise with the appellant's lawyer whether there was a point of law that could then be referred to the Court of Appeal, so the lawyer might be informed that such a point of law might have come into issue. The commission would have to make a judgment about whether he should be so informed.
If the factual issues of national security did not come into it—if it was just a legal point that happened to arise during the in camera session—there seems no reason why the commission should not say to the appellant and his lawyer, if it felt that it was in the interests of natural justice, that the point had arisen and it might be a matter that they would wish to consider seeking leave for. Leave could then be applied to the commission to take that point of law to the Court of Appeal. In these difficult circumstances, that is the best way I can think of to get around the legitimate objection that the hon. Member for Woking has raised.
The hon. Gentleman asked for an assurance that matters not involving national security would not be heard in camera. I am sorry about the double negative there, but I give him that assurance. It is envisaged that matters would be heard in camera only when there is a need for secrecy for reasons of national security. Other matters would not be heard in camera.
Article 3 is absolute; there is no evasion of it. The hon. Gentleman raised the question of Libya. The convention appears to be absolute and the European Court of Human Rights has indicated that it is absolute.
My hon. Friend the Member for Walsall, North (Mr. Winnick) again contributed wisely to our debate. I shall briefly address his concerns. He again referred to his constituent, Mr. Raghbir Singh, on whose behalf he fought a good fight as a constituency Member of Parliament—without, as he says, reaching a judgment about the individual case, but believing that he should fight for his constituent in the proper way, as he always does.
My hon. Friend expressed concern that in the composition of the commission there might not be anyone representing the interests of civil liberties. I am not sure that that is the case. Mr. Justice Potts, whom we have appointed as the chair of the commission, is a judge of some standing, known to the hon. Member for Hertsmere (Mr. Clappison), and is regarded as having a balanced judgment in these matters. Also, the person with considerable experience of immigration matters will be a lawyer and, one would hope, would have a great respect for civil liberties. As Lord Denning said, if we are to trust anyone, should we not trust the judges? Some have demurred from that, but the fact remains that lawyers, judges and adjudicators have the experience and the knowledge and should know what natural justice and civil liberties are supposed to be all about. We hope that they would provide some guarantee of the right balance.
§ Mr. WinnickOf course the distinguished judge and the person connected with the immigration appeals system will have great expertise. That goes without saying. My reservation is simply that the person who has security knowledge might say, "That may well be so on 1041 immigration matters and on judicial matters, but the Home Secretary would never have dreamed of doing what he has done without great cause to do so." Those who are— rightly—concerned with the national security of the country might be swayed in a particular direction, and there will be no one else to put a counterpoised point of view. If my fears are unfounded, so be it, but I have that reservation, bearing in mind what could well have happened in the case of my constituent and the other case which form the basis of the measure.
§ Mr. O'BrienI hear what my hon. Friend says, and I understand why he might have concerns. I shall try to provide reassurance. Not only do we have the protection of respectable and highly qualified legal people on the commission, but we have the protection of the convention. The judge and the other members of the commission will know that their role is to seek to achieve a balance between recognising the needs of national security—we hope that no Home Secretary would ever make such an order if there were no proper need for it—and protecting the interests of individuals under the European convention. Part of their role is to ensure that we comply with the proper safeguards that the European convention requires in such cases—hence the judgment in the Chahal case.
Members of the commission will have that balance in mind. At a later stage, if the House approves the convention coming into English law, they would take direct account of all the provisions of the convention in those circumstances. We are moving towards a situation not only where the commission will have the legal basis of natural justice and respect for individual rights, which we hope are inherent in the English and the Scottish legal systems, but in due course, if the House approves it, where we may have the European convention as part of English and Scottish law.
I hope that I have dealt with most of the matters raised in the debate. I thank the House for its indulgence and for its support for the Bill, which I commend.
§ Question put and agreed to.
§ Bill accordingly read the Third time, and passed, with amendments.