§ Order for Second Reading read.4.53 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 a Second time.
Protecting and maintaining the security of our nation is the prime responsibility of the Government of the day. International terrorist organisations are a major security threat. It is therefore rightly a high priority for our police and Security Service to counter the activities of international terrorists and their supporters in the United Kingdom. However, at the same time, we must ensure that our procedures for dealing with such people meet acceptable standards of fairness.
The key point is that it is always comparatively straightforward and easy to accord decent civil rights treatment to decent, reasonable people. We all know that it is much more difficult to give the same treatment to those who behave in an uncivilised way. It is the mark of a law-abiding and civilised society which respects human rights that we acknowledge the need to do so and to accord everyone fair treatment under the law.
Those involved in terrorist activities are, wherever possible, dealt with by the criminal law. However, that is not always possible or practicable. Sometimes, they have not broken our criminal laws but, because they are associated with terrorism, we do not want them in our country.
In dealing with those involved in international terrorism and other activities that threaten the safety of our nation, the ability under the provisions of the Immigration Act 1971 to exclude or deport those foreign nationals who pose a significant threat is very important. The powers are used sparingly; all decisions must be taken personally by the Secretary of State. However, those powers make a contribution to protecting the United Kingdom from those who threaten our national security.
The arrangements that had been in place until very recently were the result of careful consideration by our predecessors in government, and are not the subject of party disagreement. It was agreed that final decisions in such cases should rest with the Home Secretary of the day and should not be subject to appeal in the normal appeals process. During the passage of the Immigration Bill in 1971, it was agreed that, where a person is liable to deportation on national security grounds, he should be entitled to have the case against him reviewed by a non-statutory panel, which would advise the Home Secretary before he reached a final decision. It was, however, accepted by all parties in the House that the final decision was a matter for the Home Secretary of the day.
Although the arrangements were the subject of some criticism from time to time, they remained in place for almost 25 years. They were, however, challenged before the European Court of Human Rights in the case of Chahal. Judgment in the case was delivered late last November.
It may be helpful to hon. Members to know that, in the six years before the Chahal judgment, the non-statutory panel considered only six cases that were non-Gulf war 1054 related. In the exceptional conditions of the Gulf war, 51 cases were considered. We have widened—albeit slightly—the categories of those able to appear, and envisage that about five cases a year would be the most that we would think likely, in the normal course of events, to come before the commission.
§ Mr. David Winnick (Walsall, North)
I am listening very closely, as we all are, because the subject is very important. My interest in the subject was aroused when a constituent of mine, Raghbir Singh, was put in prison without being charged, held for more than a year and released only as a result of the judgment of the European Court of Human Rights. He was released within a week of that judgment. Had that judgment not been made, for all I know, Raghbir Singh, whether guilty or not—no charges whatever were made against him and he had lived lawfully in the United Kingdom for 12 years—might have remained in prison to this very day and beyond. Such cases must cause us much concern, as I shall obviously develop if I am called to speak in the debate.
§ Mr. O'Brien
I hear what my hon. Friend says. A number of matters were certainly affected by the outcome of the Chahal case. We are anxious throughout to protect the rights of every person who comes before the law and who is dealt with by the Home Secretary as well as to ensure that the security of the nation is protected. Striking that balance is what the Bill is all about. It may help the House if I give some information about the numbers of people affected and the types of cases. I shall outline the Chahal case, because it provides the basis for the Bill and is also a brief reminder of the background.
In 1990, Karamjit Singh Chahal, an Indian national with indefinite leave to remain in the United Kingdom, was made the subject of a deportation order on the grounds of national security and other reasons of a political nature, including the international fight against terrorism. The order reflected the then Home Secretary's view that there was evidence suggesting that Chahal was involved in terrorist activities connected with the Sikh separatist movement in his homeland. Mr. Chahal then claimed asylum, but his application was refused. The ground for the decision to deport him was national security and there was, at that time, no right of appeal to the immigration appellate authorities against the Home Secretary's decision. Nor was there any right of appeal against refusal of the asylum application.
The security case against Mr. Chahal was considered by the non-statutory advisory panel in accordance with the arrangements that I have already outlined. Having exhausted his domestic remedies, including judicial review, without success, Mr. Chahal applied to the European Court of Human Rights. In its judgment in Mr. Chahal's favour last November, the court found that the existing procedures for dealing with cases involving the deportation of foreign nationals on the grounds of national security—and, in particular, the arrangements for challenging decisions made by the Secretary of State in such cases—were in breach of the European convention on human rights. Specifically, it found that the procedures were deficient in respect of article 5(4) and article 13 of the convention. In brief, it found that there was no provision for the basis of any detention to be meaningfully considered by a court in national security cases and that there was no effective domestic remedy for a violation of rights under the convention.
1055 The Government accepted the court's judgment and introduced the Bill in another place shortly after the election. Until the Bill is passed, our ability to deport a person on national security grounds is necessarily severely constrained. While the Bill is mainly required to respond to the Chahal judgment, it also gives us the opportunity to provide a right of appeal to the same commission to certain European Economic Area nationals and to those otherwise exercising rights under the treaty of Rome, in cases in which there is currently no right of appeal. Those are predominantly cases involving national security considerations.
The Bill is short and has a limited purpose. Those affected by it fall into narrow categories and I have already outlined to the House the numbers who, in normal circumstances, will be involved. The House will also bear it in mind that in the past—for example, during the Gulf war—more people became involved in such applications.
Clause 1 will establish a new body, which will be known as the special immigration appeals commission. As schedule 1 makes clear, appointments to the commission, like appointments to the immigration appellate authority, will be made by the Lord Chancellor. Members of the old advisory panel were, by contrast, appointed by the Home Secretary. When hearing an appeal, the commission will comprise three members. One will be a person who holds or has held a high judicial office—at least a High Court judge. The second must be a person who has experience of dealing with immigration appeals. As a result of an amendment made in the other place, it is now clear on the face of the Bill that that person must be either a legally qualified member of the immigration appeal tribunal or the chief adjudicator.
The qualifications of the third member are not specified in the Bill. However, it is intended that the person will have some experience of national security matters and will be familiar with the evidence that is likely to be presented to the commission. The Lord Chancellor takes the view that those arrangements will best represent a proper balance of knowledge and experience for the commission.
Clause 2 sets out the circumstances in which a person may appeal to the new commission. The Immigration Act 1971 and, more recently, the Immigration (European Economic Area) Order 1994 have previously denied any appeal in the cases described. For the most part, the cases in which there has been no right of appeal have been those in which a decision has been taken on the basis that it would be conducive to the public good on the grounds of national security.
Clause 3 provides that the new commission will be able to grant bail when a person is detained under the Immigration Act 1971 and the grounds of the detention are that it is in the interests of national security. Schedule 3 modifies the existing bail provisions in cases dealt with by the new commission.
Clause 4 represents the most important amendment made in another place. It was not clear in the original draft of the Bill whether the commission could make decisions that would be binding on the Home Secretary. As Lord Williams of Mostyn made clear on Second Reading in the other place, it had always been the intention that the decisions of the commission would be 1056 binding on the Home Secretary. Indeed, that was an essential element of complying with the judgment in Chahal. However, what is now clause 4 of the Bill puts the question beyond doubt.
The detailed procedures for the new commission are not set out in the Bill. However, clause 5 describes some of the main areas that will be covered by the procedure rules made by the Lord Chancellor. Those rules will, in view of their importance, be subject to the affirmative resolution procedure of the House. A first draft of the rules was made available by the Lord Chancellor during the passage of the Bill in another place and it is intended that an updated version, which takes account of comments made so far, will be made available to the House before the Bill reaches Committee.
Clause 5 recognises the difficulties raised by the sensitive cases with which the commission is being created to deal. It specifically requires the Lord Chancellor, when making rules, to have regard to two equally important factors—the need to ensure that decisions that are the subject of appeals are properly reviewed, and the need to ensure that sensitive information is not disclosed contrary to the public interest. That is why the draft rules not only make it clear that an appellant will have the right to be legally represented in proceedings before the commission, but provide for possible restrictions on the need for full disclosure of the reasons for decisions to be given to the appellant. They also allow proceedings to take place in the absence of the appellant and his or her legal representative.
The Government accept that those provisions fall short of the normal demands of natural justice under the law, but they have introduced the provisions having taken account of the views expressed by the European Court of Human Rights in its judgment in Chahal and in other cases involving national security considerations. The court has explicitly acknowledged that, when national security issues are at stake, consideration will almost inevitably have to be given to confidential material and that, when that is the case, safeguards—such as the ones included in the Bill—may be essential. In such cases, the court has said that what is needed is a remedy that is "as effective as can be", given the threat to national security.
One important safeguard for the appellant will be provided by clause 6, which was inserted during the Bill's progress in another place. It expands on an idea that was in the Bill on its introduction—that the Attorney-General, or his equivalent in Scotland or Northern Ireland, should be able to appoint a person to represent the interests of the appellant in those parts of the proceedings from which he or she is excluded. That builds on an approach adopted by the Canadians, which was commended by the European court in its findings in Chahal. That person, whom we shall call the special advocate for the purpose of debate, will be a qualified lawyer and will be expected to help the commission to examine the security evidence. In particular, he will look at the evidence as if he were doing so on behalf of the appellant. There will not be the lawyer-client relationship, where the special advocate is required to disclose all information to the client. There will be a measure of confidentiality, which we think is necessary in cases involving national security.
I should like to give notice to the House that the Government will be tabling an amendment to the Bill in Committee. The amendment, although minor, is important and responds to a point that arose following consultation 1057 with interested parties. It will provide for an appeal from the commission to the Court of Appeal on a point of law. That will mirror the existing arrangements for such a right of appeal in respect of decisions of the immigration appeal tribunal. We expect it to be a more satisfactory arrangement than leaving an appellant to seek judicial review on such a point, particularly as the commission will be chaired by a High Court judge. In addition, it may be a more efficient use of the commission's time. We are anxious to ensure that those matters of great importance do not drag on and that the procedures used can be dealt with expeditiously.
§ Mr. Charles Wardle (Bexhill and Battle)
It is helpful that the Minister has been able to point to the amendment that he is to table in Committee. Since the money resolution is to be dealt with today, can he tell us what the financial effects of that amendment will be?
§ Mr. O'Brien
We have looked at the financial effects in broad terms and we shall provide further details in Committee. At this stage, it would be better if I waited until the Committee to give the hon. Gentleman the full view of the likely implications. However, given the number of cases likely to be dealt with—perhaps five a year, one or two of which may result in a referral to the Court of Appeal—the amounts involved are relatively small.
Despite its immigration context, I hope that the Bill will not prove to be highly controversial. It is necessary because of the judgment of the European Court of Human Rights in the case of Chahal. As the hon. Member for Hertsmere (Mr. Clappison) will accept, a Bill along the same lines would have been produced by the Conservative party had circumstances been different. It is clearly important—even with a widely accepted objective—that proper consideration is given to the detailed delivery of the objectives of the Bill. The special immigration appeals commission to be created by the Bill will deal with a small number of difficult cases. The right of appeal to the commission will ensure that the right to a proper process of those suspected of terrorist activity will be safeguarded, although within a framework that also safeguards national security.
The Bill aims to achieve the necessary balance between the need to ensure that decisions are properly reviewed and the need to ensure that information is not disclosed contrary to the public interest. Taken together, we believe that the measures will accommodate the legitimate concerns that we have about the nature and sources of intelligence information and accord the individual appellant a substantial degree of procedural justice. I commend the Bill to the House.
§ Mr. James Clappison (Hertsmere)
As the Minister has anticipated, the Bill has the support of the Opposition—as we indicated in another place. We would have introduced such a Bill were we still in government. We acknowledge the need to ensure full compliance with the judgments of the European Court of Human Rights in the Chahal case last November, which the Minister has described.
This country has a proud record of honouring our international obligations and commitments, although we believe that it is essential for the effective operation of 1058 the European Court of Human Rights that due weight is given to the margin of appreciation—as it is called—for individual states. It is also important that this House has the opportunity to scrutinise proposed changes in the law to bring about that compliance. We believe that that opportunity should take the form of full parliamentary scrutiny and debate—the full rigours of the parliamentary process. We would be concerned by any curtailment of that process.
First and foremost, our concern when considering the Bill is with national security, especially in these circumstances where we are required, in effect, to balance the interests of national security with the rights of individual asylum seekers and appellants. We must bear it in mind that when the commission has been established, individuals will be able to appeal to it against decisions of the Home Secretary of the day. Those decisions will have been taken by the Home Secretary on the grounds of national security. The appeal will then go to the commission, and it will be for the commission to make a final and binding decision. That decision will bind the Home Secretary of the day through a direction in the legislation. We are concerned that commission decisions will be binding in these important cases where national security is at risk.
I welcome what the Minister has said today about a right of appeal to the Court of Appeal for the Home Secretary alone against decisions of the commission. We mooted this when the matter was deliberated in another place and I am pleased that the Minister is minded to grant such a right.
§ Mr. Mike O'Brien
The hon. Gentleman has misunderstood me. I am happy to listen to any points that he may make about the Bill, but the amendment that we shall be tabling deals with putting before the Court of Appeal matters of law, not with facts or the position with regard to clause 4 of the Bill. I got the impression that the hon. Gentleman thought that we were saying something else.
§ Mr. Clappison
The Minister has once again anticipated me. To continue to push at what appears to be an open door, I was going to invite him to consider widening the grounds of appeal to include discretion as well as points of law, because these are cases where the commission will be exercising its discretion under clause 4, as the Minister rightly said. We shall be concerned about cases involving points of law and those involving the exercise of discretion where there might be a feeling on the part of the Home Secretary of the day that the commission has got it wrong. I accept what the Minister has said—that these cases may be few and far between and that the number of cases that the commission deals with will be small. It follows that the number requiring the Home Secretary to consider an appeal against the decision of the commission will be small as well.
I do bear it in mind that the commission will be composed of eminent and experienced people. We make no criticism of its composition, but even eminent and experienced tribunals can sometimes get it wrong—if I can put it that way—in difficult and controversial cases in which others may make a different judgment. We stress the interests of national security in these matters. The Home Secretary of the day will have originally taken a decision on grounds of national security. We think it 1059 should be open to the Home Secretary to seek a review of a commission decision which overturns the judgment of the Home Secretary. We will return to this matter in Committee.
While on the subject of possible conflict between the Home Secretary's judgments and those of the commission, I wish to take issue with the Minister on another point. I do not take great issue with the procedural rules as a whole, and I accept that they strike a fair balance in draft form between the rights of the individual and the interests of the state—especially the need for some of the evidence not to be disclosed, and I support the Minister's remarks on that. The role of the special counsel clearly will be important in this context. Under the procedure for dealing with the evidence—under rule 5, I believe—it will be for the chairman of the commission, assisted by the special advocate, to decide what evidence should be disclosed to the appellant.
The question arises: what if the Home Secretary of the day disagrees with the decision and is still concerned that sensitive information might be disclosed? The Minister should consider whether he is completely satisfied that the matter should rest with the final decision of the commission or whether it is possible to consider some way in which the Home Secretary could make further representations to the commission. In such important and sensitive matters, one cannot spend too much time on reflection.
I do not want to undermine the balance that has been created. It is in the interests of justice, in so far as it is possible, and consistent with the needs of national security, for the appellant to know the case against him and on what evidence it is based. It is also right for the appellant to have a summary of the evidence taken in his absence and to be able to comment on it.
I listened to the Minister's outline of the commission's jurisdiction under the Bill. Do the Government have any plans to extend the commission's remit beyond that which the Bill will give it? They were asked that in another place and the reply was not as fully considered as it might have been, so perhaps the Government could give us further clarification today.
How will the commission handle asylum cases involving article 3 of the human rights convention which, as the Minister and the House will know, concerns torture and inhumane treatment? Do the Government take the view, as they appeared to do in another place, that when there is a finding that the appellant is at risk under article 3, national security considerations should not come into play and there should be no balancing exercise between individual rights and national security?
I believe that the Bill's financial effects, to which the Minister referred, have escalated a little—to put it mildly—since it began its progress in another place. There the Government suggested that the annual cost of legal representation would be £1,000. That figure provoked some surprise—and requests for information about where such cheap legal representation could be found. The new figure is £20,000; perhaps the Minister could say a little more about how the calculations have been made and why the costs appear to have escalated.
We believe that the Bill deserves debate and scrutiny on several counts. It involves national security and the rights of individuals, and a balance must be struck; in 1060 doing so, we should not lose sight of the fact that some of the people concerned are extremely dangerous, not only to their countries of origin but to the people of this country and to nationals of their country of origin living in this country. Important matters of national security are at stake and it is necessary to take some care in striking the right balance.
§ Mr. David Winnick (Walsall, North)
My interest arises because one of my constituents, Mr. Raghbir Singh, who had lived lawfully in the United Kingdom for 12 years, was detained and put in prison with no charges made against him; he was married to a British citizen, but had he been a United Kingdom national himself, he could not have been treated in that way.
Mr. Singh was detained as a threat to national security. He strenuously denied involvement in terrorism of any kind, but there was no way that that could be tested, as would normally be the case, in a court of law. I was, and remain, in no position to say whether he was telling the truth. How on earth could I, as his Member of Parliament, know? There was no question about his active political concern with events in India and he has frankly admitted, as the editor of a Sikh newspaper, that he wants a separate Sikh state there; but he insists that he never wanted to use terrorism to achieve that.
It is interesting to note the way in which the Sikh community at large took up Mr. Raghbir Singh's case. For all I know there may be some exceptions, but I believe that the large majority of Sikhs in this country who are actively involved in such matters have no desire to see the use of terrorism. Together with the National Union of Journalists, of which Mr. Raghbir Singh was a member, the Sikh community made its views known to many Members of Parliament of all parties, and Amnesty took up the case and made him a prisoner of conscience, which is rather unusual in the United Kingdom.
The previous Home Secretary challenged me about it, but I have never denied that the Home Secretary of the day should have powers to deal with national security, regardless of what happened to my constituent. Terrorism, as I and other hon. Members have said time and again, is one of the great curses of the modern world. The notorious suicide bombers in the middle east take the lives of men, women and children, and even babes in arms; there is no mercy when the terrorist killers strike.
Thousands of civilians have been murdered by terrorists in Algeria and Sri Lanka, not to mention the atrocities committed by the IRA and the loyalist gunmen. Only today in The Guardian, there is a story of a former head teacher who was one of the victims of the Enniskillen bombing and has been in a coma for 10 years. He had heart bypass surgery about three years before the bombing, and when he went on the Remembrance day parade 10 years ago he was not murdered, but he has now lain in a coma all this time under the tender care of his wife. That is an illustration of what terrorism means in human terms. We must never forget that for one moment.
How, in a democratic society, are we to deal with those who are considered a threat to national security, when no charges are made against them? That is entirely different from the matters involving IRA terrorism to which I have just referred. In the case of Chahal, the European Court of Human Rights, by a majority decision, found that by 1061 detaining Mr. Chahal for six years—my constituent was in prison for a little over a year, and that was bad enough—the United Kingdom was in violation of four articles of the human rights convention.
As the Minister said, article 13 is especially important. It says:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.The court also found that article 5(4), which is an important safeguard in a democratic community, had been violated. Article 5(4) states:Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if a detention is not lawful.The European Court of Human Rights believed that that safeguard had not been observed in the case of Chahal. As I said in my intervention, if the decision had not been taken, I would be speculating not only on how much longer Mr. Chahal would have remained in prison but on how long my constituent would remain in detention. It was more than a year before he was released as a result of the judgment. These are worrying matters.
If my constituent was involved in terrorism, he deserved anything that happened to him. The Home Secretary told a deputation of Members that it was not alleged that my constituent was involved with terrorism in the United Kingdom, but I accept that if he was using the United Kingdom as a base for terrorism against a friendly country, national security considerations are involved. If we say that we are against terrorism, we mean that we are against it—it is not just empty rhetoric.
Like all occupants who hold the office, the Home Secretary was acting on advice. If that advice was wrong, not necessarily maliciously, and Raghbir Singh was, as he has always claimed, innocent, imagine what it meant to be taken away. It so happened that it was at 6 am when the knock on the door came and he was put in prison, his family left behind, and no charges made. In such cases, the person would be left in prison until the asylum application was decided and the case on security grounds would have been dealt with under the previous panel arrangement. I ask hon. Members to bear it in mind how serious such matters are when they concern people who are not involved in the terrorism that has been alleged against them.
The only remedy available, apart of course from the European Court of Human Rights, was the review of the Home Secretary's decision by a non-statutory panel. Its decision was in no way binding on the Home Secretary. I am glad that the Bill clearly sets out that the decision of the special commission will be binding on the Home Secretary, although I note the proposed amendment mentioned by the Minister, which I shall study carefully when it comes before us in Committee because it has certain aspects about which I am not altogether happy.
The special immigration appeals commission is undoubtedly an improvement on the previous procedure. It will be more like a court, although clearly very different from an ordinary court, for reasons that we understand. I am pleased that there will be a bail jurisdiction. That is certainly an improvement, but I have several questions.
1062 Will the appellant be informed of all the allegations against him? Clause 6 states:The relevant law officer may appoint a person to represent the interests of an appellant in any proceedingsbefore the proposed commission. I listened carefully to what the Minister said. In the main, I hope that people with allegations against them will be able to have their own legal representatives; that is important. If that will not be the case in certain circumstances, what arrangements will be made for the person who is appointed by the relevant Law Officer, who will be the Attorney-General in England, to represent the appellant? Will a lawyer who is appointed not by the appellant or his solicitor but by the Attorney-General take instructions from the appellant? Will he largely act as if he were the lawyer appointed by the appellant? If he does act in such a way, what would be difference between an appellant having his own lawyer and the arrangement in the Bill? Perhaps the Minister will explain. If we are to have machinery in which such allegations are made, it is surely important that every legal redress is made available to appellants. One of the most important things in a country based on the rule of law is obviously that a person should have their own lawyer to argue the case.
What about the time between detention and the hearing? How long will it take for cases to come before the commission? It should be done as speedily as possible, although there must be time for appellants to get together the necessary evidence to refute the allegations, if they intend to do so.
If the commission dismisses an appeal, what will happen—it may be rare, but it could well occur—if further evidence comes to light? Will the case go back to the commission or will the Home Secretary have powers to decide that the new evidence is compelling and be able to reverse his original decision? I accept that if an appeal is dismissed, the situation is not likely to occur, but it may.
When the Bill becomes law, will it no longer be possible for such cases to be referred to the European Court of Human Rights? I hope not. I accept that the reason for this measure is so that it will no longer be necessary to take cases to the European Court of Human Rights. In effect, we are putting the judgment of Chahal into United Kingdom legislation. Does the Bill necessarily mean that the road to the European Court of Human Rights is barred? The Minister shakes his head, so I take that as his answer.
I have already explained why I am interested in the matter, and I am sure that my constituent will be interested in it. I would like to pay tribute to two people. First, a former Member of this House, Max Madden, took up the case of Chahal on many occasions. He retired from the House at the general election, but the manner in which he pursued the Chahal case—his persistence and diligence and the time that was involved—is a tribute to the way in which he carried out his duties as a Member of Parliament. I doubt whether many votes were involved, especially as he was not standing again for election—it was a point of principle, and all praise is due to him for carrying out his duties in such a way.
I would also like to mention David Burgess, of Winstanley Burgess solicitors, who pursued the Chahal case to the European Court of Human Rights. He also advised me about matters. I realise that in Government circles—I hope that this does not apply to the present 1063 Government—he was probably looked upon as one of those difficult characters who pursue matters when they should not and who become over-interested in civil liberties. It is a good job that we have such people in Britain. The rule of law and the democratic process is strengthened by such solicitors. I hope that cases such as those of Chahal and Raghbir Singh will be dealt with in a way very different from when they were originally detained.
§ Mr. Charles Wardle (Bexhill and Battle)
I share the feelings of the hon. Member for Walsall, North (Mr. Winnick) when he condemns terrorism and I am sure that right hon. and hon. Members on both sides of the House do as well.
The Bill is necessary and it will have the support of the whole House, as my hon. Friend the Member for Hertsmere (Mr. Clappison) has already said. Until last year, the advisory panel operating under rules that flow from the Immigration Act 1971 was able to review orders to deport or exclude foreign nationals considered a threat to national security, but the Home Secretary had the final say. The Bill makes the decisions of the new statutory commission binding on the Home Secretary, in order to satisfy the European Court of Human Rights.
Anyone who followed the chain of events in the case of Karamjit Singh Chahal, from the deportation order served on him, through refusal of his asylum application and the advisory panel's review, to his application to the European Court of Human Rights and the court's judgment a year ago, will regard the Bill as an inevitable consequence of those events.
As my hon. Friend the Member for Hertsmere said, the Bill was already in preparation before the general election. Since the European Court of Human Rights found that our domestic courts were not in a position to treat with the national security aspects of cases involving terrorists and, at the same time, ruled that people facing deportation on security grounds must be allowed some means of challenging the Home Secretary's decision, a Bill giving statutory authority to new procedures was needed.
Without the Bill, it could be argued that the Government's ability to remove or bar a terrorist or other person who was a security risk might well be stymied simply by the individual's staving off the order by showing the Government's failure to meet their obligations under the convention. That conjures up an appalling prospect of known foreign terrorists at work in Britain being able to prolong their activities here and to cock a snook at the police and the Security Service by using the ironic argument that we were not treating them—in this haven of freedoms known as the United Kingdom—with internationally recognised standards of fairness.
The Bill is short. It has already been given careful and expert consideration in another place so a great deal of further clarification may not be required on Second Reading. It is important, if only for the avoidance of future doubt, that the Bill satisfies the European Court of Human Rights' unequivocal commitment to article 3 of the convention on torture or inhumane, cruel and degrading treatment, and that has been achieved.
1064 It also helps that the Bill now clarifies the binding nature of the commission's decisions on the Home Secretary, as the Minister pointed out. Any lingering ambiguity on that score which left the European Court of Human Rights in any doubt about the new commission's ability to fulfil the spirit and purpose of articles 5 and 13 of the convention might render the legislation ineffective. Equally, it was sensible to include in the Bill the requirement that a person to be removed or barred on grounds of national security must be given notice of the right to appeal. Again, the Minister has highlighted that.
No matter how offensive it may seem to some observers that Parliament appears to be bending over backwards to be fair to terrorists, our system of justice will be all the stronger for allowing such terrorists a swift but fair appeal, independent of the Home Secretary of the day, against the charge that they are a risk to our national security.
I hope that the Minister will be able to enlarge on two aspects of the Bill in his reply to the debate. The first is the use of a special advocate to be appointed by the Attorney-General to speak up for the appellant on security evidence at a stage in the proceedings when both the appellant and the appellant's counsel will have been excluded from the hearing. The Government say that there will be no client relationship between the appellant and the special advocate yet somehow the appellant, his lawyers and the watching world, not to say the European Court of Human Rights, will be asked to accept that the advocate is fearlessly fighting the corner of the terrorist, who is not his client in any case. It is all very British. I understand and fully accept the security constraints, but I want to believe that it will work.
Can the Minister assure me that nothing in those arrangements will allow doubt to be cast on the proceedings in a way that could discredit the new commission in the eyes of the European Court of Human Rights, without the approval of which we shall be back to square one in the removal of terrorists?
My second concern is about the right under article 8 of the convention of a person refused entry clearance on the ground that leave to enter would not be conducive to the public good to appeal to the commission. The need to show exemplary fairness to a terrorist who would be a risk to public safety if he was given leave to enter, but who says that he wants to be reunited with his family in this country, will seem rather far fetched even to the most fair-minded of people. However, if that is what is needed on the statute book to prevent the European Court of Human Rights from overruling the Home Secretary's exclusion orders, I accept that it is sensible to include it in the Bill.
My concern is that the provision will set a hare running over article 8 of the convention in other broader and less controversial areas of immigration control. Let us take the example of a person who is not even remotely a security risk and is therefore not subject to the Bill, but who has for whatever other reason been refused entry clearance, say over an application for a visit visa to see part of his family resident in the United Kingdom. If the entry clearance officer has done a conscientious job and, under the Asylum and Immigration Appeals Act 1993, the scope exists for a swift internal review of the refusal by the senior entry clearance officer in post, to my thinking that individual rightly has no further right of appeal against that refusal.
1065 Once the Bill is passed, the disappointed visitor, whose only vice seems to be that he would probably be tempted to overstay, will see that even known terrorists, who could quickly threaten the British public and be the cause of chaos and mayhem, have the statutory right to appeal against refusal of entry clearance. Every rejected visa applicant will shout, "Where's the justice in that?" Is not clause 2(2) likely to be the thin end of the wedge for British immigration control and the pressures that will be imposed by article 8 of the convention, especially when legislation is introduced in the House to incorporate the convention into British law? I hope that the Minister will be able to show me that my fears are unfounded and that this is not the thin end of the wedge
There was some mirth in another place about the limited financial provisions of the Bill, which have been changed to some extent. I do not intend to challenge the money resolution, but it is clear how painfully aware the Home Office has become of the costs of immigration control, as I repeatedly predicted would be the case when I was a Minister there and at every opportunity that I have had since then to do so. I hope that it will be in order to say to the Minister that the best way to limit expenditure in the long term and to reinforce immigration controls is to spend an admittedly large sum now—I said this to the previous Government—on processing the backlog of asylum applications as swiftly as possible. That will not only assist the genuine refugees languishing in the queue but, by getting rid of the queue, will destroy the very thing that attracts the bogus applicant—the ability to join the queue and wait here perfectly legally with the benefit of social security for up to four years before his case is heard. If the Minister can persuade the Treasury to spend a lot of money now to save vastly more every year once the queue has gone, he will achieve fundamentally important progress in immigration control, to the benefit of the whole country.
If the Minister also signals that he will consistently use the available fast-track mechanism for manifestly unfounded asylum applications such as those of the Czech and Slovak gipsies at Dover, who have travelled through another safe country where asylum could reasonably have been claimed before reaching the United Kingdom, he will have the force of the Geneva convention on his side and nothing in the Dublin convention will seriously prevent him.
If, on the other hand, the minister heeds unsound advice about resorting to nothing more than selective checks on third-country nationals arriving here, he will undermine at a stroke the control afforded by the passport date stamp, which catches out the clandestine entrant and the illegal overstayer alike. If he removes that control, he will have undermined all the good work that his Government achieved at Amsterdam, with my modest but enthusiastic support, by preserving Britain's border controls.
§ Fiona Mactaggart (Slough)
I am pleased that the Bill is before us today. It has reminded me how old I am. I recall the time in the early 1970s when I heard a speech by Mark Hosenball, a journalist who had been excluded on national security grounds by a Labour Home Secretary for writing an article about Government communications headquarters. The then Home Secretary's decision was about as silly as that of his Conservative successor, who 1066 removed the trade union rights of people working at GCHQ. There was clearly no evidence that Mr. Hosenball represented a threat to national security.
At the time, Members of Parliament were very concerned about the procedure Mr. Hosenball faced. He was not allowed to know whether his article or something else was leading to the decision to expel him. The panel of three wise men heard the case in his absence; he was allowed to know nothing of the case against him. Although my hon. Friend the Minister said that the issue had not divided the parties, the procedure has—on that occasion and since—made some Labour Members deeply uneasy.
Let us be honest: wrong decisions have been made. For example, it was shown that in some of the Iraqi cases the information held by the national security services was inaccurate. Following that, according to the procedure, the decisions were overturned.
We needed a better procedure, and I think that we have it here. I praise my hon. Friend the Minister, and our friends in the other place, for the quality of this law. They have listened to representations made on the original draft; the rules of procedure have been published in draft. which is very helpful. We can now feel confident that there is a proper way of hearing such cases. That is not only because we had a setback in the European Court of Human Rights, but because the best way in which to defeat terrorism is to defeat it by means of a transparent and fair procedure. We do not need to use mechanisms that require a short circuit of the rules. Of course, in some circumstances those who are before a tribunal will not know the full case against them, because that could endanger national security. I am glad that the special advocate has been put in place to take care of them.
I want to refer to some of the points made by my hon. Friend the Member for Bexhill and Battle (Mr. Wardle)—[HON. MEMBERS: "He is not your hon. Friend."] I am sorry; the hon. Member for Bexhill and Battle. We have quite different views on the subject but, surprisingly, he often talks good sense. He just did so, and I associate myself with the point that he made to my hon. Friend the Minister about the benefits of spending substantial sums now to process the backlog with which his party left us, so as to speed up the process and create a transparent and straightforward way of dealing with cases.
I want to answer the hon. Gentleman's concern about article 8. It does not entitle anyone to exercise the right to family life in the United Kingdom. Many years ago, I was associated with a series of cases that went to the European Court of Human Rights involving women whose foreign husbands were not allowed to join them here under the immigration rules at that time. We won those cases only because there was sex discrimination in relation to the exercise of article 8 on family life issues. There is no independent entitlement to exercise the right to family life in a particular country—although there is a right to family life.
Article 8, like article 5 and many other articles in the convention, has long explanatory parts which, in effect, deal with the issue of appreciation raised by the hon. Member for Hertsmere (Mr. Clappison). Article 3 contains no such qualification. It is 15 words long—the shortest article in the convention—and there is no measure of appreciation when it comes to torture and inhumane and degrading treatment. That strikes me as 1067 proper, but when it comes to other rights—for example, the right to a fair hearing on the questions of detention, the right to family life and so on—states can curb them when that is in the interests of national security. I think that the fears that have been raised are unfounded.
I commend the Bill, because it is a sensible way of dealing with the problem. Although that problem occurs rarely, it is right for us to establish a proper procedure to deal with it.
§ Mr. Richard Allan (Sheffield, Hallam)
I am pleased to say that Liberal Democrats welcome the Bill as a sensible response to the Chahal case. Colleagues far more learned and eminent than me have applied themselves to the Bill in another place and were extremely satisfied with the Government's amendments. I therefore do not intend to take up too much of the House's valuable time—time that seems especially valuable on a Thursday evening.
The general substance of the Bill is acceptable to us, so I shall refer to only two outstanding matters of concern with which I hope the Minister will be able to deal. The first is the relationship with article 3 of the European convention on human rights. With the incorporation of the convention into United Kingdom law, we accept that article 3 will have to be applied, but we would prefer human rights considerations to be made more explicit in immigration law. We would like some elaboration on how the convention, once incorporated, will be applied to the Bill.
The second issue is the right of appeal for those who have applied for asylum once the national security considerations have been dealt with and their asylum applications have been handled by the special commission. At present, it appears that they will have no further right of appeal, as an asylum seeker in other circumstances would. We would like the Minister to deal with that.
I shall conclude by saying that I am enjoying seeing the Minister smile every time there is talk of spending large amounts to clear the backlog of asylum cases.
§ Mr. Humfrey Malins (Woking)
I, too, am pleased to see that the Minister manages to smile and to show such good humour. He carried an enormous work load and, between them, he and the Parliamentary Secretary, Lord Chancellor's Department must cope with the fact that there have been more than 150,000 asylum applications—excluding dependants in this country—in the past four years, while well over 26,000 asylum appeals are still waiting to be determined along with nearly 10,000 non-asylum appeals. That is a considerable burden for the Minister to carry but, at the moment, he is doing so with great humour.
As the Minister knows, I founded the Immigration Advisory Service, a large national charity that provides free help and advice for those with rights of appeal in immigration matters. On a personal note, let me tell the Minister how glad we were that he took the trouble to come to our annual conference this year, where his presence and some—indeed, all—of what he said were greatly welcomed by all of us who were there to hear him.
1068 I join my hon. Friends in welcoming the Bill, which is a sound and sensible measure. Let me highlight some aspects of it—one or two that appeal to me, and one or two that do not appeal to me so much. The make-up of the commission will, I think, make us all feel glad that such high-calibre people will be on it, including a High Court judge and a senior adjudicator. We also welcome the fact that those having their cases heard may be legally represented.
I think I am right in saying—I will be corrected if I am wrong—that legal aid is not applicable. As the Minister will know, organisations such as the Immigration Advisory Service and the Refugee Legal Council provide free help and advice, so there should be no bar to persons' being thoroughly well represented legally—particularly, perhaps, by the IAS. In accepting that, as I know he does, the Minister will also accept that that might require a little extra funding for that excellent body, which he knows all about.
A couple of points concern me slightly. I understand the need to balance national security with natural justice: that is terribly important, and perhaps the Bill has got it about right. The Minister will understand some of my concerns about clause 5(3)(a). A rule that allows proceedings without the appellant being given full details of the reasons for the decision that is the subject of the appeal could lead to the appellant feeling handicapped because, perhaps, his rights of appeal were being slightly undercut. Those who represent him may feel that they are not seeing the full picture. I fully understand the need to protect security, but I hope that the Minister will ensure that as far as possible the greatest possible assistance will be given to representatives of those who have rights of appeal.
Clause 5(3)(b) relates to proceedings in the absence of any person, including the appellant and his legal representative. Should we worry a little about that or may we hope that that will not happen and that as much positive help as possible will be given to the appellant and his representatives?
I was glad to hear the Minister speak about a right of appeal from the commission to the Court of Appeal. He said—he will correct me if I am wrong—that the appeal would be on a point of law. I am not sure what that means in practice, but perhaps the Minister can help. In appeals from the Queen's bench division or from other courts to the Court of Appeal, points of law are sometimes obvious. There is a well-defined case history upon which advocates can rely in drafting points of law. However, this situation is different in that it involves a new commission. I do not know what procedural rules or case law will govern it or whether the public interest immunity rules that apply in the Crown court and other courts will apply in the same or different terms to the commission. Therefore, any counsel or other person drafting a ground of appeal on a point of law might be punching in the dark without a set of precedents or much in the way of a track record that can be used to establish a clear point of law.
Under the Bill, it would be possible for an asylum application to come before the commission at precisely the same time as the issue of national security. Currently, if an asylum application is refused, the person has the right to go to an adjudicator and then to the Court of Appeal. I am slightly troubled about what might happen in practice. For example, if a finding relates to security, is the asylum matter dealt with separately? Is the right of 1069 appeal to the Court of Appeal from the commission on asylum only in such a two-stage application? Would the appeal be on the grounds that are normally applicable to asylum rights of appeal if it were made through channels other than the commission?
I hope that those queries are clear to the Minister. It is not possible, is it, for these proceedings to be in public? By the very nature of this important matter, that cannot happen. However, it is important for the House or an appropriate outside body to be kept properly informed about the proceedings in the commission so that there is some accountability.
There have been some good speeches. The hon. Member for Walsall, North (Mr. Winnick) has a hugely impressive track record and I commend his work in this area. My hon. Friend the Member for Bexhill and Battle (Mr. Wardle) contributed greatly to the debate. The Minister will be aware that although we support the Bill, we feel that some issues should be flagged up as a pointer to the fact that we shall keep an eye on the legislation to try to ensure that, although national security is given the most serious consideration, the rights of the individual who is facing a court and tribunal are protected and enhanced as much as possible and that he is not condemned or shut away. The Minister will have taken those points on board and I am grateful to him for the way in which he has listened to us.
§ 6.4 pm
§ Mr. Mike O'Brien
I am grateful to hon. Members for the way in which they have participated in the debate. I listened with interest to their many points on the Bill, and I am pleased to note that there is broad agreement in all parts of the House that, in broad terms, the Bill is the best way forward. The commission will try to strike a balance between the rights of those engaged in due process and the need to protect national security. We are creating a mechanism that will fulfil our obligations in the light of the European Court of Human Rights judgment in the Chahal case.
The hon. Member for Hertsmere (Mr. Clappison), who leads for the Opposition on these matters, spoke about article 3 of the convention. The question was whether in the exercise of that article's provisions there was a need for balance in making our decision as to whether to give effect to it.
One of the main findings in the Chahal case was that no one could be returned to a place where he might be subjected to torture or inhumane or degrading treatment or punishment within the terms of article 3. The court concluded that Chahal could not be returned to India in the context of that article. Therefore, the guarantee is absolute in character, and a balancing exercise on a deportation issue does not come into play. We do not send people back to a place where they may be subject to breaches of article 3 provisions. The court was clear that we are not allowed to do that under the terms of the convention, and we have accepted that judgment. The hon. Member for Hertsmere said that he, too, accepted the judgment, so I assume that he will accept that that is the way in which the matter was interpreted by the court.
I was asked about the Home Secretary's right of appeal. We are still in listening mode on the Bill. We want to hear reasonable arguments from the Opposition, and most of the points by the hon. Member for Hertsmere were put 1070 reasonably. I thank him for that and for the strength of his argument. My noble Friend Lord Williams of Mostyn made the Government's position plain when the issue of the Home Secretary's right of appeal was considered in the other place. We took the view at that stage that it was not right to have an appeal based upon issues of fact, because all sorts of practical difficulties would apply.
In an appeal based on facts rather than on a point of law, the nature of the issue means that the facts would have to be revealed in the Court of Appeal. Under what procedures would that be done? What facts would be revealed to the appellant? Are we to try to create a new mechanism for the Home Secretary to exercise in such appeals to the Court of Appeal? That raises fundamental questions about what would become public in the Court of Appeal and about what legal rights of representation were before the court. It gives rise to fundamental questions about how we would operate an appeal mechanism for the Home Secretary. It might also raise questions about whether we were fulfilling all the convention provisions. I shall listen carefully to how the hon. Member for Hertsmere puts those points in Committee, but I put him on notice that, if he seeks to introduce that provision, I shall ask him how it would be dealt with in practice in the Court of Appeal.
The hon. Gentleman rightly raised costs. There was a degree of humour during the discussions on costs in another place, and rightly so. The increase in costs mainly reflects the way in which our thinking on the role of the lawyer who is appointed to represent the appellant's interests has developed. That has been the result of our on-going consultation on the Bill with interested parties and our consideration of the implications of the first draft of the procedure rules, now that we have had them from the Lord Chancellor's Department.
In a strong speech, my hon. Friend the Member for Walsall, North (Mr. Winnick) raised issues relating to his constituent. My hon. Friend has a long record in the House of both strongly opposing terrorism and breaches of national security, and supporting human and civil rights and protecting the rights of innocent people. I acknowledge that his support for those issues is long standing.
My hon. Friend asked me some questions. Perhaps we can deal with them at greater length in Committee. He asked whether the appellant would be informed of all the allegations against him. The broad allegation will be known to the appellant—there will, of course, be a statement at the beginning of the case. A decision will be made by the commission chairman and the special advocate about what is to be disclosed. Some evidence may not be disclosed. The appellant will be given such information about the case as it is possible to give him, without putting national security at risk.
As I say, some material cannot be disclosed. In a sense, that is at the heart of the balancing act that is required in these difficult cases, but the commission will ensure that non-disclosure is kept to a bare minimum and that a decision not to disclose information is justified.
My hon. Friend and other hon. Members asked whether the special advocate could take instructions from the appellant. From my experience of practising law, the best way I can describe it is that the special advocate is like a person who is appointed by a court to represent a minor— 1071 a child—or someone with a psychiatric or mental problem. That person does not take instructions from the client and he is not obliged to do what the client says.
In this case, a special advocate is not obliged to disclose information that he may become privy to. He does not have the lawyer-client relationship that one commonly expects, so the special advocate will not take any instructions from the appellant. It will be a different relationship. The European Court commended such a relationship in the Canadian context. It felt that it would balance national security and protecting the rights of the person before the court.
It must be emphasised that the appellant will have his own lawyer, who will be able to represent him in most of the proceedings. An effort will be made to ensure that as much information as possible is available to the appellant, who will be able to understand the context of most, but perhaps not all, of the proceedings before the commission.
My hon. Friend asked how long it would take to get a case before the commission. I agree that it should be done as quickly as possible. Notice of appeal will be given and the Secretary of State will, according to the draft procedure rules, have 42 days to provide the commission with his response, including a statement of the facts and a schedule of evidence. The intention is that cases will be heard as soon as practicable, but, clearly, the appellant will need to be given some time to prepare his case. There will certainly be no undue delay, as most appellants are likely to be detained.
My hon. Friend asked me whether the Home Secretary would be able to consider new evidence after a decision had been reached by the commission. It will be open to the Home Secretary to consider whether it is appropriate to review his decision, based on any new evidence, so he will have that ability, but of course if he does so and his decision is effected, a further involvement of the commission might become appropriate.
My hon. Friend asked whether such cases would be subject to the European convention. I confirm that the European convention will apply. If the House were to take the Government's view and to introduce the European convention into British law, people would not need to go to Strasbourg to bring the convention into effect.
With his long experience of dealing with many immigration cases, the hon. Member for Bexhill and Battle (Mr. Wardle) asked some pertinent questions. Again, he asked about the nature of the relationship between the lawyer and the special advocate and the appellant. He said that it was not quite British.
§ Mr. O'Brien
It is probably more Canadian, because the relationship seems to come out of the way in which the European Court viewed the situation in Canada, where the Government had set up a special advocate system, which the European Court commended. That is why we felt that we should go down that route. We believe that the special advocate relationship, which protects national security and the defendant, meets our European convention obligations, and we do not expect that it would be challenged.
1072 In relation to visa cases, the hon. Gentleman asked how we square the circle whereby someone who is denied entry because we fear it for national security reasons can appeal, and someone who has no such problem cannot appeal. He may not be aware that we made a pre-election commitment to examine that and that it is part of our overall review of the way in which immigration and asylum law operates. I confirm that we are examining creating a fast-track appeal mechanism, so that we can ensure that such injustices do not occur. I hope that that will not cause us problems with the convention, as he fears.
The hon. Gentleman raised the backlog and various other wider issues. On this late Thursday evening, I shall not venture into a wide-ranging discussion on those issues, and I am sure that he will understand why.
My hon. Friend the Member for Slough (Fiona Mactaggart) made an excellent contribution, which was based on her wide experience of dealing with immigration law. I welcome her support, from her position of having been involved in cases and having known people who have had to deal with such issues. I thank her for her support and the strength with which she put her arguments.
I thank the hon. Member for Sheffield, Hallam (Mr. Allan) and his party for their support for the Bill. He asked about the way in which it would deal with cases where national security implications had been rejected by the commission and the person then asked for asylum. In those circumstances, the person would be dealt with in the normal course of events as an asylum seeker. I shall look at that and write to the hon. Gentleman. On the face of it, that would seem the way to proceed.
The hon. Member for Woking (Mr. Malins) made a good contribution, and I thank him for his broad support. I am grateful to him for his kind comments about my contribution at the Immigration Advisory Service conference. I am especially grateful, because he has had a distinguished career setting up that organisation and has been deeply involved in ensuring that we protect the rights of persons who come into this country as asylum seekers or immigrants and that we do so in a reasonable and fair way.
The hon. Gentleman is right to say that legal aid is not available and that we believe that the refugee legal centre and other such places will, through section 23 grants, be able to deal effectively with the cases. He suggested that they might require extra resources. Before this incarnation, I was a shadow Treasury spokesman. I learned at the feet of my right hon. Friend the current Chancellor that one does not give out money easily or wantonly. With five cases a year, I am not particularly disposed to consider applications for increases in section 23 grants. I am afraid that I have to disappoint the hon. Gentleman.
The hon. Gentleman expressed some concern about clause 5(3)(a). Perhaps we can deal with that in more detail in Committee. All I shall say is that the special advocate 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.
The hon. Gentleman asked about our appeal amendment and what would happen in an issue involving a point of law. The principles are broadly established, and 1073 we do not envisage any great departure from them. The hon. Gentleman raised some other detailed questions, which will be best dealt with in Committee.
This short Bill is designed to remedy deficiencies in the existing procedures for dealing with individuals who are not British citizens and who constitute a threat to our national security. As I said earlier, the number of cases will be small—we estimate about five a year. However, the cases will be important and we must get the balancing act right between determining national security and the rights of the individual. I believe that the Bill seeks to do that and I welcome the support for it from both sides of the House. I am grateful to hon. Members for dealing with the Bill so constructively and fully.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 63 (Committal of Bills).