Lords amendment: No. 193, after clause 74, to insert the following new clause—("Discrimination: certificates by Secretary of State—
.—(1) This section applies where in any proceedings—
- (a) a person claims that an act discriminated against him in contravention of section 19 or 61; and
- (b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying—
- (i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and
- (ii) that the doing of the act was justified by that purpose.
(2) The claimant may, in accordance with rules made by the Lord Chancellor, appeal against the certificate to the Tribunal, that is to say, the tribunal established under section (The Tribunal)").
(3) If on an appeal under subsection (2) the Tribunal determines
- (a) that the act specified in the certificate was done for the certified purpose; and
- (b) that the doing of the act was justified by that purpose, the Tribunal shall uphold the certificate; in any other case, the Tribunal shall quash the certificate.
- (a) the claimant does not appeal against the certificate; or
- (b) the certificate is upheld on appeal,
the certificate shall be conclusive evidence of the matters certified by it.
(5) In this section "act" does not include the making, confirmation or approval of a provision of subordinate legislation.")
Mr. Deputy Speaker
With this, it will be convenient to take Lords amendment No. 194, amendment (a) thereto and Lords amendments Nos. 195, 348 and 382. Lords amendments Nos. 194 and 348 involve privilege.
§ Mr. Ingram
The amendments establish a new tribunal to which an individual can appeal if the Secretary of State 1074 issues a national security, public safety or public order certificate. The provisions were introduced during the Lords stages, so I hope that hon. Members will not mind if I spend a little time explaining their background and purpose. That will also set the context for dealing with the views likely to be expressed by my hon. Friend the Member for Hull, North (Mr. McNamara) about the amendment that he has tabled to amendment. No. 194.
The tribunal originates from the European Court of Human Rights ruling this summer in the Tinnelly and McElduff cases. In that ruling, the United Kingdom was found to be in breach of article 6 of the convention because no right of appeal exists against certificates issued under the Fair Employment (Northern Ireland Act) 1976.
The Government recognised that the certification powers in the Bill, which restate the long-standing powers in section 23 of the Northern Ireland Constitution Act 1973, were deficient in the light of that ruling. The new tribunal is intended to ensure compliance with the European Court of Human Rights, and to fulfil the agreement commitment to review the national security certification powers. We also gave a commitment on Second Reading, in response to my hon. Friend the Member for Hull, North, to consider these powers in the light of the ECHR ruling.
The tribunal established by amendments Nos. 193 and 194 represents a major step forward in providing a mechanism through which an individual can challenge a certificate. Amendment No. 193 introduces a new test: not only will the tribunal consider whether an act was undertaken for the reasons stated in the certificate, it will also consider whether the act was justified. Those are important new safeguards for the individual.
Other considerations also apply, however, and must be given due weight. Safeguarding national security is a primary function of all Governments, and we continue to believe that it is essential to protect the intelligence information that gave rise to the original act and, ultimately, to the certificate. At the same time, we fully accept the need to provide a mechanism through which an individual can challenge a certificate. That remains, and will continue to be, a question of balance. It is a difficult one, but I believe that we have got it right. Indeed, the Court noted in its ruling:it should be possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice.The Government believe that we have achieved precisely that balance in establishing the new tribunal. Amendment No. 348 specifically provides that the tribunal will be chaired by an individual holding high judicial office.
The key to achieving the balance appears in proposed subsection (7) in amendment 194, which enables the Attorney-General to appoint a special advocate to represent the interests of the appellant. That will ensure that the appellant will be represented fully by a suitably qualified person. However, we cannot provide the appellant with access to what might be extremely sensitive intelligence information or to any part of the proceedings under examination by the tribunal. We were not required to do so by the European Court of Human Rights ruling.
The Government fully recognise that the special advocate provisions are unusual, in that they modify the arrangements one would normally expect to see in appeals 1075 proceedings. However, these arrangements will play an important role in safeguarding national security and they do have a precedent—they are based directly on the Special Immigration Appeals Commission, similarly established following a European Court of Human Rights ruling and approved by this House in 1997.
My hon. Friend the Member for Hull, North has tabled an amendment to remove the provision that, while the special advocate will represent the appellant, he will not be responsible to him. That provision is also based directly on the SIAC, and it might be helpful if I explained briefly why it is necessary.
The special advocate will not be able to take instructions from the appellant in the normal way, because he will have access to information which he cannot share or discuss. It would be wrong, therefore, to impose on the advocate the normal responsibilities one would find in a client-lawyer relationship. The provision reflects the relationship between the advocate and the appellant, but does so in the context that the advocate is required to represent him. I have no doubt that the appellant's case will be argued to the full.
This important provision follows logically from the special advocate arrangements, and I hope that my hon. Friend the Member for Hull, North will give further consideration to the point. I am sure that we will debate the matter in the time available.
I trust that the House will welcome the establishment of the tribunal. I do know that some hon. Members were concerned about whether the provisions provided sufficient safeguards for individuals. However, I hope that the House will agree that special arrangements—which are based directly on existing statutory provisions—are essential to safeguard national security, and that the balance we have aimed for has been achieved in the amendments, which, again, I commend to the House.
§ Mr. McNamara
I shall be very quick, because others want to get in. Does the House think that it is fair that a tribunal can take place without the applicant who has suffered a wrong having knowledge of the evidence which is being used against him; that part of it may be held in secret without him or his lawyer being present; that the tribunal, at best, need give him only a summary of what has been said; and that the proceedings may be held in his absence?
What does the House think of a prosecutor, the Attorney-General, appointing a barrister to represent the accused—who is called the appellant or respondent in this case—who has no responsibility to that person at all; who will argue a case in the absence of the accused; who will not be able to make any judgment whatever about the way in which the case has been handled; and who is chosen from a panel picked by his accusers? That cannot be right and fair in any way.
My amendment relates to the part of the Lords amendment No. 194 which says that a person appointed to represent the appellantshall be a member of the Bar of Northern Ireland … shall not be responsible to the party whose interests he represents.1076 Therefore, I want to know what reply my right hon. Friend the Secretary of State sent to the chairman of the Bar Council, because this issue is important to its members. In his letter, the chairman said:We have just become aware of the proposed procedure in the Government amendments to the Northern Ireland Bill—National Security Certificates whereby the Attorney General for Northern Ireland may appoint a person to represent the interests of a party to proceedings before the Tribunal in any proceedings from which he and any legal representative of his are excluded. It is proposed that the person appointed shall be a member of the Bar of Northern Ireland and shall not"—not is underlined—be responsible to the party whose interests he represents.He continues:It is our preliminary view that such a procedure may put the barrister appointed in an impossible situation. By virtue of our Code of Conduct a barrister has certain obligations with which he must comply and we believe it may be impossible for him to discharge some under the above-mentioned procedure.Accordingly we consider it important that we have the opportunity to discuss and respond to the proposal and we ask you to note our said interest. We await hearing from you as soon as possible.I tabled a question asking what reply my right hon. Friend the Secretary of State sent, but have not yet received a reply. I did not know about the original letter until last Thursday or Friday.
We are talking about a case in which one does not know the evidence against one, one cannot be told it and one cannot be fully represented. One could lose one's livelihood. What is more, one's character is besmirched. In principle, that is as bad as the old exclusion order. It is dressed up and jazzed up, but at the end of the day one just does not know. However, we do know of the malicious way in which those orders have been used in Northern Ireland.
§ Mr. Ingram
The hon. and learned Member for North Down (Mr. McCartney) seemed to be rising, Mr. Deputy Speaker, and I assumed that he wanted to speak.
§ Mr. Ingram
However, I will not give way, because I have not yet said anything. I was trying to be gracious to the hon. and learned Gentleman in the time available. My hon. Friend the Member for Hull, North (Mr. McNamara) raised a number of issues, with which I shall try to deal. No doubt the hon. and learned Member for North Down may get a chance to intervene.
On the rights of the individual relative to the rights of the rest of society, we are setting up the tribunal to protect the rights of the individual. However, sensitive intelligence information is gathered by brave men and women who put their lives on the line daily and who are unseen, unheard and in many ways unapplauded because of the nature of their jobs—trying to ensure that those who carry out extreme, or potentially extreme, actions against the state are made known to the authorities. Therefore, when sensitive information is involved, it must be protected, because, by exposing it, we may be exposing the people who have gathered it on behalf of the rest of us.
We have taken account of the ruling of the European Court of Human Rights and put in place precisely our interpretation of it. We have also put in place mechanisms 1077 to defend the interests of the individual. So the individual's rights are indeed protected, and I entirely refute the way in which my hon. Friend the Member for Hull, North presented his arguments.
We have dealt with the matter in the right way—right in the interests of the whole of society. We have also achieved the best protection of the rights of the individual that was possible. My hon. Friend also referred to the Bar Council of Northern Ireland. He may not be aware of this, but discussions have been taking place between the council and the Attorney-General. This evening, the Bar Council met and formed a sub-committee to look into the matter in greater detail. It has been charged with reporting to the council within one week. Clearly, we are at the final point—we are moving towards the passage of this legislation. We shall take account of the sub-committee's report to the Government, as members of the Bar will be asked to represent the interests of the individuals concerned.
§ Mr. Robert McCartney
The point that the hon. Member for Hull, North (Mr. McNamara) is making is that a balance must be struck between the conflicting interests of the state and the individual. I appreciate that the Minister has gone some way towards meeting European human rights criteria by appointing a barrister to look after the individual's rights and make representations. Presumably the barrister will see the reasons for granting the certificate, but why should he, without revealing the contents of the certificate, be prevented from taking detailed instructions from his client so that he can fully represent that client's interests? I do not believe that the barrister can fully represent his client unless he knows both the client's case and the contents of the certificate.
§ Mr. Ingram
Unlike the hon. and learned Gentleman, I am not a lawyer. As I understand the client-lawyer relationship, it would restrict the lawyer if we were to proceed as the hon. and learned Gentleman suggests—the lawyer would be in receipt of information that he could not impart to the client or appellant.
The Bar Council in England has also had to consider those matters, although in relation to the Special Immigration Appeals Commission. I understand that a SIAC case in which the issue will be tested is pending. We shall clearly have to consider whether the measure is robust and strikes a balance between the interests of appellants and of national security.
I take note of what the hon. and learned Gentleman has said and I am sure that the Bar Council of Northern Ireland, in which he takes an interest, will make its representations known through its sub-committee—its concerns will then be subject to further discussion and consultation with the Attorney-General. We are conscious of the difficulties, but we must protect both the national interest and the interest of the appellant.
§ Lords amendment agreed to.
§ Lords amendments Nos. 194 to 417 agreed to [some with Special Entry].