Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002 (Hansard, 10 July 2002)

§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
rose to move, That the Draft rules laid before the House on 14th March be approved [24th Report from the Joint Committee].
The noble Baroness said: My Lords, I am grateful for this opportunity to debate as a package these three sets of rules as shown on the Order Paper—the Pathogens Access Appeal Commission (Procedure) Rules 2002, the Court of Appeal (Appeals from the Pathogens Access Appeal Commission) Rules 2002 and the Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules 2002. These rules have each been debated and approved in the other place.
There is no statutory requirement to consult on any of these rules, but we did consult members of the judiciary on the two sets of Court of Appeal rules, and a copy of the Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules was sent to members of the Civil Procedure Rules Committee. All three sets of rules derive from recent terrorism legislation.
The Terrorism Act 2000 was introduced following a review of terrorism legislation and put in place many of the powers needed to protect UK citizens. Following the events of September 11th, the Antiterrorism, Crime and Security Act 2001 expanded those powers to ensure that robust and rigorous systems are in place to take account of the changed threat. One of the new measures in the 2001 Act is to provide for better security in dealing with pathogens and toxins. The Secretary of State may issue directions to an occupier to require that any person be denied access to dangerous substances where this is in the interests of national security or public safety. This provides for the establishment of a Pathogens Access Appeal Commission to hear appeals by individuals such as students, doctors or researchers—against the Secretary of State's decision to deny them access to dangerous substances. The Act provides for the practice and procedures to be followed on appeals to the commission.
The commission will need to consider high classification intelligence material and ensure that information is not disclosed which is contrary to the interests of national security or the detection and prevention of crime, or in any other circumstances where disclosure is contrary to the public interest. Where the commission considers it necessary, appeals may be heard in the absence of the appellant. This will be mainly where the Secretary of State has objected to disclosure of certain material to the appellant. In these cases, the Attorney-General will appoint a special advocate to represent the interests of the appellant. I assure noble Lords that the rights of the appellant will 760 be protected, without compromising any sensitive information that might form part of the Secretary of State's opposition to the appeal.
The 2001 Act provides for further appeal from a decision of the commission heard in England and Wales to the Court of Appeal on a question of law with the permission of the commission or the Court of Appeal.
Unless noble Lords wish me to expand further, I commend the draft procedure rules and both sets of Court of Appeal rules to the House. I confirm that it is our view that they are compatible with the European Convention on Human Rights. I beg to move.
Moved, That the draft rules laid before the House on 14th March be approved [24th Report from the Joint Committee].—(Baroness Scotland of Asthal.)

§ Lord Goodhart
My Lords, the principle behind these rules—the special advocate principle—was debated extensively both during the passage of the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001. It is one which we on these Benches accepted. We did so with some reluctance but, recognising the very special circumstances attaching to terrorism, we ultimately accepted it. Therefore, I certainly have no intention whatever of challenging the principles behind it.
I wish to make two points of which I have given notice to the Minister. I hope that she will be able to respond to them. The first point that I wish to raise applies to all three sets of rules; namely, that the commission in one case, or the Court of Appeal in the other two cases, must, secure that information is not disclosed contrary to the interests of national security, the detection and prevention of crime, or in any other circumstances where disclosure is contrary to the public interest". That is a formulation based on the public interest in non-disclosure.
However, an appellant has a right to a fair hearing, including in principle the disclosure of evidence which is intended to be used against him. There is a general public interest above and beyond that of the appellant personally that trials should be fair. We believe that the right to disclosure of evidence can be overridden only in exceptional cases. I should like an assurance that, in deciding whether or not to disclose information, the commission or the court will be required to take into account the personal interests of the appellant and the general interests of the public in the disclosure of evidence which is material to the trial and that any order to withhold information will be made only where that is a proportionate and necessary response to the damage that would be caused by the disclosure of it.
My second point applies only to the Pathogens Access Appeal Commission (Procedure) Rules 2002. It arises under the special advocate regulation in Rule 8. Rule 8(1) states: At any time prior to issuing a reply under rule 9(1), the Secretary of State shall inform the relevant law officer"— 761 which, in the context of England and Wales, is the Attorney-General— of the proceedings before the Commission, with a view to the law officer, if he thinks fit to do so, appointing a special advocate to represent the interests of the appellant in the proceedings". Rule 8(2) states: Paragraph (1) applies unless—

(a) the Secretary of State does not intend to oppose the appeal, or

(b) he does not intend to object to the disclosure of material to the appellant".

Under Rule 8(1) the Attorney-General is not required to appoint a special advocate. He does so only if he thinks fit to do so. Therefore, he clearly has a discretion. But the special advocate will play an essential role in protecting the rights of the appellant who is excluded from being present at his appeal. Therefore, I should like to ask in what circumstances, other than those already specified in paragraph (2) of Rule 8, is it envisaged that the Attorney-General might not appoint a special advocate? In such a case will the appellant be notified that the Attorney-General has decided either to appoint, or not to appoint, a special advocate? Will the appellant have a right to judicial review of a decision of the Attorney-General not to appoint a special advocate? I await with interest the noble Baroness's reply.

§ Lord Kingsland
My Lords, I have only one matter to add to what the noble Lord, Lord Goodhart, has said. These provisions—on balance I think understandably—involve, particularly in one case, a substantial diminution of individual rights. Is the Minister able to give to your Lordships' House tonight an undertaking that the operation of the special advocate procedure will be kept under careful review; and that there will be some form of accountability over a period of time for the procedure to your Lordships' House and another place?

§ Lord Brennan
My Lords, I want to raise two matters with the Minister. First, I commend the Government on consulting with the judiciary about the rules. Secondly, I invite comment on two consequences, by way of example, from Rule 4 in the Court of Appeal (Appeals from Proscribed Organisations Appeal Commission) Rules. First, I invite the Minister to be careful before proposing in reply to the noble Lord, Lord Goodhart, a suggested basis for judicial decision-making about how to interpret Rule 4. I should have thought that it is for the court to determine what it thinks is in the public interest, having regard to the evidence that it has heard, and not for the Government to dictate to the judiciary the way in which it should approach matters. I remind the noble Lord, Lord Goodhart, that there may be Ministers who would give the judiciary different advice from that which he mentioned.
Secondly and much more importantly, I raise a matter that needs clarification. In an appeal to the Court of Appeal under the rules or under similar rules that might emerge from the Anti-terrorism, Crime and 762 Security Act, the court, in deciding a point of law, has to listen to evidence of a kind mentioned in Rule 4 on the appeal if it excludes the appellant and his representatives. Do those rules envisage that a special advocate will have a right of audience in the Court of Appeal to address those matters before the court makes its decision?

§ Baroness Scotland of Asthal
My Lords, I can answer my noble friend's final question briefly simply by saying, "yes".
I bear in mind the caution given to me by my noble friend Lord Brennan on the questions raised by the noble Lord, Lord Goodhart. The noble Lord was right. The Secretary of State will not take such decisions lightly and will consider all relevant issues. However, it will ultimately be for the commission or the court to decide whether a party should be excluded from a hearing or part of a hearing where such material is under consideration. That is not in the sole discretion of the Secretary of State, although he could choose not to rely on evidence that would otherwise need to be disclosed.
The Secretary of State is unlikely to give reasons for his decision when he issues directions requiring denial of access. However, if the excluded person appeals, any evidence in the public domain will be heard in the proceedings before the commission or the court, at which the appellant or his representative can be present. If the commission or the court determined that it would be against the public interest for the evidence to be made public, the evidence on which the Secretary of State based his decision would be heard without the appellant. However, the special advocate would be present and able to voice his view.
In respect of the second question of the noble Lord, Lord Goodhart, it is envisaged that the Attorney-General will in practice appoint a special advocate where a party or his legal representative are to be excluded from the hearing. The Attorney-General will seek representations from the appellant or his legal representative before official nomination of the special advocate. On issues of conflict of interest that may arise, we are satisfied that the decision of the Attorney-General is ECHR compliant and is not subject to judicial review. A special advocate is appointed by the Attorney-General but not instructed by him. I hope that that assists the noble Lord.
On the question raised by the noble Lord, Lord Kingsland, there is a provision for a review of the rules. The noble Lord will remember that Section 122(4) of the 2001 Act contains a provision for that Act to be reviewed by a commission after two years. It states: The committee shall complete the review and send a report to the Secretary of State not later than the end of two years beginning with the day on which this Act is passed". Although the rules are not specifically caught, noble Lords will know that there will be an opportunity to examine the operation of the Act. I hope that with that assurance the noble Lord will be content.
On Question, Motion agreed to.