§ .—(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,
§ (4) If—
- (a) the claimant does not appeal against the certificate; or
- (b) the certificate is upheld on appeal,
§ (5) In this section "act" does not include the making, confirmation or approval of a provision of subordinate legislation.").
§ The noble Lord said: This grouping also contains Amendments Nos. 192W, 192X, 205A, 212A, 324A, 347A, and 213A. Clause 80(4) and (5) as drafted restates Section 23(3) and (4) of the Northern Ireland Constitution Act 1973. This enables the Secretary of State to issue a national security certificate, the purpose of which is to be conclusive evidence that an act was undertaken for national security reasons. A similar power exists in Section 42 of the Fair Employment (Northern Ireland) Act 1976. The United Kingdom was, this summer, found to be in breach of Article 6 of the European Convention on Human Rights because there is no right of appeal against the issue of a certificate under Section 42. Clause 80 is therefore deficient. The government amendments are simply intended to rectify that. The Minister of State undertook in another place to review Clause 80 in the light of the ECHR's ruling; and, in addition, the Belfast agreement requires the Government to review existing national security certificate powers.
§
There are similarities between these arrangements and the Special Immigration Appeals Commission, established by the Bill I introduced in your Lordships' House in June 1997. Although this Tribunal is slightly different in character, there is a common link in that both are aimed at protecting and upholding national security, while always recognising the rights of individuals. The noble Lord, Lord Lester, put it well in the debate on the earlier Bill but pointed out
that it is compatible with the rule of law to adopt a special procedure …; fairly to determine appeals in these exceptional cases without prejudicing the interests of justice or of national security and to do so by means of a special procedure".
That is exactly what we have done today.
§ Amendments Nos. 192V and 192W establish a tribunal and give effect to a new schedule. The tribunal will exist to hear appeals against certificates issued under Clause 80 and it will, in doing so, consider two issues. First, it will consider whether the original act—which might, for example, be a decision not to appoint an individual to a public body—was taken for the reasons certified in the certificate. Secondly, it will consider whether that act was justified—that is, to use the phrase of the noble Lord, Lord Lester, a reasonable and proportionate response.
§ The amendments build on Section 23 of the 1973 Act in two key areas. First, at present, a certificate can be given as conclusive evidence of national security grounds. The requirement that the act should be justified is, therefore, new and the Government believe that this is an important new provision to protect the rights of individuals.
§ Secondly, these amendments will also enable certificates to be issued, and challenged before the tribunal, on the grounds of public safety or public order. 1786 The purpose of that is to ensure consistency with Section 42 of the Fair Employment (Northern Ireland) Act 1976 which allows certificates to be issued on those grounds.
§ To test the grounds and the proportionality of the original act, the tribunal may need to have before it sensitive intelligence information. The Government remain convinced however of the need to protect that intelligence information and it is important to note here that the ECHR judgment did not require its disclosure.
§ But to balance this, we must have a suitable method of ensuring that the appellant's interests are fully represented. The Special Immigration Appeals Commission—established in the light of the ECHR ruling in the Chahal case—provides a model for this in the form of special advocates, appointed by the Attorney-General, to represent the interests of the appellant. We follow that model in subsection (7) of Amendment No. 192W. This ensures that an appellant's interests will be fully represented in proceedings before the tribunal by a suitably qualified person. We believe that the special advocate provisions are central to the aim of balancing the legitimate rights of an individual to challenge a certificate and the equally legitimate rights of national security.
§ The tribunal will have two options before it. It may uphold the issue of the certificate on both grounds, in which case there is no further action to be taken. The tribunal will have confirmed that the original act was indeed taken for national security reasons and that it was justified.
§ The tribunal may, of course, decide not to uphold the certificate on either or both of the grounds before it. In those circumstances, it is right that the appellant can continue his discrimination case before the courts. In those circumstances the tribunal will have disposed of the national security defence and that would not be further relied upon by the respondent. There may, of course, be other grounds on which the respondent would wish to defend the discrimination allegation, for example, lack of suitable qualification. But we do not expect intelligence information to be disclosed in discrimination proceedings if national security is no longer a relevant issue.
§ We are considering whether further amendments are necessary to these provisions to reflect properly the interests of the Secretary of State as the certifier of the act and her responsibility and accountability for national security, though she may not have been a party to the original proceedings. We may need to return to this issue on Report. I can signal our intention to bring forward further amendments to safeguard national security. That is a vital responsibility of government, of course. So we need to protect defence, national security, public safety and public order in Northern Ireland.
§ Turning to subsection (2) of Amendment No. 192W, the Lord Chancellor is by this provision required to make procedural rules for the tribunal. They will be subject to the affirmative resolution procedure.
§ The schedule in Amendment No. 324A ensures that the tribunal will consist of three members, all appointed by the Lord Chancellor, one of whom will hold high 1787 judicial office. The other two will be from a panel appointed by the Lord Chancellor and I can tell the Committee that we are working towards a mix of legally qualified and publicly appointed members.
§ Finally, some transitional provisions are required to save the power to issue certificates between the appointed day and the establishment of the tribunal. I should tell the Committee that certification powers in other Northern Ireland statutes will also be made ECHR-compliant. Section 42 of the Fair Employment (Northern Ireland) Act 1976 was the power in question in the ECHR ruling. I give that assurance. We intend that the fair employment and treatment order will bring Section 42 and the other certification powers contained in race and gender legislation within the remit of the tribunal.
§ The noble and learned Lord, Lord Archer of Sandwell, is not here but this group includes his amendment to delete the existing power to issue certificates. That would have been an appropriate response if we had not brought forward the right of appeal. I hope that I have satisfied the Committee that the government amendments, modelled as they are on the special immigration appeals tribunal, are the right way forward. I beg to move.
§ 9 p.m.
§ Baroness Park of MonmouthI had intended to oppose the amendment proposed by the noble and learned Lord, Lord Archer of Sandwell, and I am relieved that the Government's own amendments go far to reassure me. However, intelligence is the one resource available to the authorities which enables them, though to a limited degree, to guard against attack. The IRA and its surrogates operate in an international dimension. Valuable intelligence, for example, on proposed purchases of arms may come to the intelligence services from sources needing the utmost protection, not least because they may be supplying equally valuable intelligence on other threats to the UK.
The noble and learned Lord, Lord Lloyd of Berwick, demonstrated the difficulty of making statements without backing them up with detail. He pointed out how difficult it would be to proceed with the proposed legislation on statements by an RUC officer. It seems to me that the Secretary of State might be in a rather similar position. That could result in the collapse of his case.
I believe that we shall continue to need intelligence sources, and the Irish Government at least have recognised in their latest legislation that the collection of intelligence by terrorist groups on possible targets can and should be an indictable offence.
The time may be coming—it may not be far off—when the IRA, having got as much as it can through the political phase of the struggle, may return to the armed struggle. We must do nothing now that could jeopardise the successful operation of intelligence gathering. The Secretary of State must retain special powers in the field of national security which Clause 80(5) provides. That, of course, is equally true of paragraph 4 (defence of the realm) and paragraph 16 (national security) of the list of 1788 excepted matters under Schedule 2. Those vital areas of work would be at risk if we were to accept the full amendment.
I welcome the Government's amendments. They reassuringly reinforce the provision safeguarding national security. But they add a new provision for a tribunal which, as the Minister explained, will have the power to consider appeals against the Secretary of State's decision and power to quash the certificate. I feel great unease about that. If the Secretary of State had to produce chapter and verse on the intelligence basis for a decision, it could make it very difficult to protect men and women working in highly vulnerable and dangerous situations. I believe that there are times when the Secretary of State must be able to make decisions without having to justify them in detail.
We have to balance a possible injustice against a certain threat to the security of everyone. Increasingly, as we withdraw troops and dismantle the whole apparatus of security, we shall be dependent on reliable advance intelligence, inside knowledge of the intentions and capabilities of those who remain hostile and have not given up the use of force. I hope therefore that there will be no question of relinquishing the Secretary of State's eventual unquestioned power to give priority to national security when choices have to be made. I feel that that would be very difficult to do if a tribunal is constituted and has the power proposed by the Government.
§ Lord Cope of BerkeleyI strongly support the points made by my noble friend Lady Park. The security issues remain extremely important in Northern Ireland. Of course, we all hope that the war is over, that peace will follow. But it has not happened yet. We all know of the punishment beatings, shootings and so on that go on. We all know that all the semtex and guns remain in terrorist hands and that the main Provisional IRA is capable of returning to violence at short notice. A day or two ago in our deliberations I was accused of being pessimistic about the outlook, but we must be realistic, in my view, and realise that that is a possibility.
However, what is much nearer to a certainty—though nothing is certain—is that small groups from within the terrorist organisations on both sides of the divide in Northern Ireland are entirely likely to indulge in violence once again, because they dislike some parts of the settlement which the vast majority of people in Northern Ireland as well as all of us in this House support. That is why I believe that provisions such as are being made here are necessary. However, they should have running through them the importance of the preservation of security in the interests of the vast majority of the population of Northern Ireland from all sides.
The Minister will realise that he will find us very willing to support further amendments on Report which he suggested might be required in support of national security.
As to the provisions presently before us, I should like confirmation—although I feel sure that it is true—that the tribunal may, and probably normally will, sit in 1789 secret and not in public. I note that provision is made under subsection (4) of the clause to be inserted by Amendment No. 192W for matters to be considered ex parte, if I have the legal term correctly; that is, in the absence of one or other of the parties to the proceedings. I believe that to be wise.
I also believe it wise to insert the provision in subsections (7) and (8) under which the Attorney-General for Northern Ireland is able to appoint a person to represent the interests of a party to proceedings before the tribunal. Although I believe that to be novel in the context of Northern Ireland, it is a wise provision. One of the difficulties faced occasionally by lawyers who look after terrorists from both sides of the divide is that they have not been trusted by the security authorities. Sometimes there is very good reason for it, although it cannot be said that that happens necessarily in all cases. In these circumstances if the Attorney-General for Northern Ireland can appoint the legal representative of an individual who makes representations to a tribunal of this kind it may permit arguments to be advanced in private to which a reasonable degree of security can be applied. The lawyer who does this job will have a very difficult duty to perform. He will need to maintain the trust of the individual whom he represents while being unable to tell that person the basis of the supporting arguments on which the judgment is being made. Nevertheless, it is wise to insert these two subsections into the provision.
The new clause inserted by Amendment No. 192X makes provision for appeal from the tribunal to the Court of Appeal in Northern Ireland on a question of law. That is less likely to require proceedings to be held in secret, but presumably that is also a possibility that must be considered by the Court of Appeal when the particular matter comes before it. As it would be an appeal on a matter of law, that is perhaps less likely to occur. However, in general I support the insertion of these clauses into the Bill.
§ Lord Holme of CheltenhamAs the noble Lord, Lord Williams of Mostyn said, there is a balance to be struck between human rights and liberty of the subject and the demands of national security which we all understand in Northern Ireland. As the noble Lord said, the European Convention on Human Rights, to be incorporated into our law, provides an exception on the ground of national security. I look forward to seeing the later amendments proposed by the Government to make sure that the security situation is well covered. Can the noble Lord assure the Committee—he may already have dealt with this and, if so, I apologise for missing the point—that the amendments that we are presently considering are in conformity with the European convention?
Lord RentonI apologise for not intervening before those on the Front Bench commented on the amendment. I ask the Government to consider the 1790 following point. I do not ask for a reply this evening. In Amendment No. 192W subsection (7) provides:
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".Subsection (8) (b) provides that a person appointed under subsection (7) shall not be responsible to the party whose interests he represents. That is a very unusual situation in which to place a member of the Bar. Perhaps the noble Lord, Lord Williams of Mostyn, has never found himself in that position; I hope he never will, if he ever returns to practise at the Bar, which is unlikely. I believe that this is a rather unusual matter that should have his consideration.
§ Lord Williams of MostynIt is unusual and deliberately so for the reasons indicated by the noble Baroness, Lady Park, and the noble Lord, Lord Cope of Berkeley. Both stressed—I absolutely agree—that very careful regard should be had to state security. I was careful to say that not only individual rights but state security were a legitimate concern. In fact I believe that to be a legitimate obligation. I can tell the noble Lord, Lord Renton, that it is not unprecedented. I shall develop that point in a moment.
However, perhaps I may respond to the general themes. First, I believe that we shall have a scheme which is ECHR compliant. That is the whole purpose. This scheme is modelled on the Special Immigration Appeals Tribunal which itself arose out of the exclusion on national security grounds, as Members of the Committee will know, of someone called Chahal. All I say about Mr. Chahal is that the assertion—I put it neutrally—was that his presence in the jurisdiction was not conducive to the public interest on security grounds.
I turn from his case to put the net a little wider. We know perfectly well that some international terrorists, who may now be significantly more dangerous than the IRA, need to be excluded from our jurisdiction. The ruling of the ECHR in the case of Chahal was that a right of appeal needed to be provided.
Accordingly, I introduced the Bill in your Lordships' House in June last year to deal with that lacuna. But no one is going to throw away responsibilities lightly. We therefore drafted a scheme which met with general approval. I mentioned earlier the noble Lord, Lord Lester. It is right, if at all possible, that an appellant should be legally represented. It is the normal duty of counsel—as I and the noble Lord know—to take instructions from his client to whom he has responsibilities about the detail of what is disclosed. That simply cannot be done in these circumstances and we would set our face firmly against it. Therefore what we did in the case of Chahal, and what is mirrored here, is to offer fully qualified legal "representation" for a person who is excluded. So the appellant will not be able to be present on all occasions. The in camera point is made. He will not have access to the information, deliberately, because he cannot. And the person is there to "represent" his interests without having the professional responsibility that a member of the Bar normally has towards his client. He is there not as a 1791 creature of the tribunal but as a consequence of our desire to maintain a balance which is extremely sophisticated and subtle so that we do not lose sight of individual rights in our ECHR obligations, but abundantly we do not lose sight of our duty to safeguard national security with all the dangers consequent upon any breach.
I think that we have got this about right. I think that we did in Chahal. I think that we have here. It is important to reassure the Committee that I fully understand the question of public interest. Indeed, if one considers Amendment No. 192W the point is made plain.
In response to the noble Baroness, Lady Park of Monmouth, if one considers subsection (6) of the amendment following the illustrations of ex parte and in camera hearings, it is made plain that,
In making rules under this section"—that is about the operation of the tribunal—the Lord Chancellor shall have regard, in particular, to"—I omit paragraph (a) and go to paragraph (b) which gives the reassurance that the noble Baroness wants—the need to secure that information is not disclosed contrary to the public interest".
§ 9.15 p.m.
§ Baroness Park of MonmouthI fully accept and believe in the intention of the Government. However, I cannot see how it will be possible for the Secretary of State to give the tribunal the background, the reasons for the certificate, without having to disclose. It is the same problem as the noble and learned Lord, Lord Lloyd of Berwick, raised, as I said in my remarks. But it is not possible to justify a decision with evidence in the normal way if one does not give chapter and verse. I cannot see how one can. It seems a complete circle.
That is what concerns me. I do not doubt the intention, but I cannot see how it can work.
§ Lord Williams of MostynIt can work quite easily because the nature of the tribunal is a High Court judge and a special panel, and no one will appoint someone to a special panel without there being some sensible vetting in place. No one will be chosen as counsel except on the determination of the Attorney-General in Northern Ireland. Therefore the ambit of disclosure will be very limited. It does not have to be in public; and the Secretary of State can come to her own conclusion, obviously on security advice, as to precisely what appropriately can be disclosed.
We have thought about these problems quite carefully. The representation is not perfect but it is as good as can be achieved in circumstances where one has to be cautious and careful about national security. In a sense it is a scheme which has been taken from Chahal, 1792 which had similar problems in similar circumstances. I make no apology for saying again that I think we have got it right.
§ Lord Lester of Herne HillI apologise for the fact that I could not be present for the earlier discussion on this amendment. In support of the position taken by the Government on the amendment, perhaps I may say that I was in the case in Strasbourg of Tinnelly where the issue arose. During the deliberations on the Special Immigration Appeals Tribunal legislation, I supported the Government on what is a compromise between the need to protect national security and the need for due process of law. Indeed, it was argued in Strasbourg that precisely a compromise of this kind would meet the needs of both public interests. Although I would much prefer an entirely open adversarial system, I do not think it realistic in the context of national security claims of this kind to go as far as that. Therefore, although I like to think of myself as entirely liberal, I support the compromise represented by the amendment.
§ Lord DesaiI wish to ask a question as an amateur. I am satisfied with Amendment No. 192V, but wish to know whether Amendment No. 192X represents the end of the appeal process? Can the appellant go on to the Judicial Committee of the Privy Council? If the court of appeal in Northern Ireland rejects an appeal, can an appellant go to the Judicial Committee of the Privy Council, invoking Schedule 11?
§ Lord Williams of MostynOn a question of law, an appellant's normal avenue of appeal would be to this House.
I am grateful for the support given by the noble Lord, Lord Lester. I cited his words on Chahal. He is not being liberal. I do not think liberal means being unrealistic about the true balance between the two interests which are legitimate.
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendments Nos. 192W and 192X:
§ After Clause 74, insert the following new clause—