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Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005

– in the House of Lords at 6:24 pm on 18th October 2005.

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Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the rules insert a new Order 116A into the Rules of the Supreme Court (Northern Ireland) 1980 to support proceedings in the High Court and appeal proceedings in the Court of Appeal under the Prevention of Terrorism Act 2005. It may be helpful if I recap briefly the background to the rules.

It remains the Government's view that it is appropriate and necessary that procedures are put in place to protect the nation against the risk of terrorism caused by individuals who are suspected of involvement in terrorist-related activity but who cannot be prosecuted through the criminal courts. However, it is also the Government's view that it is imperative that such procedures are subject to strict safeguards and consistent with the rule of law and our human rights obligations.

The Prevention of Terrorism Act 2005 provides for the making of control orders that impose obligations on individuals suspected of involvement in terrorism-related activity. The Act, as noble Lords will recall, draws a distinction between two types of control order: the derogating control order and the non-derogating control order, and there are different judicial procedures in respect of each type of control order. The purpose of this amendment to the Rules of the Supreme Court (Northern Ireland) 1980 is to establish rules to support control order proceedings and relevant appeal proceedings.

Noble Lords will recall that supreme court rules are usually made by the Northern Ireland Supreme Court Rules Committee, which is the body with statutory responsibility for maintaining those rules. The committee is chaired by the Lord Chief Justice of Northern Ireland, Sir Brian Kerr, and is made up of representatives from the judiciary, barristers and solicitors. Due to the exceptional circumstances in which the Prevention of Terrorism Act 2005 was passed, it would have been impossible for the Supreme Court Rules Committee to make the relevant changes to the rules of court in the very short period of time originally available. That is why it was necessary to legislate for a special rule-making procedure under paragraph 3 of the schedule to the Prevention of Terrorism Act authorising the Lord Chancellor to make rules on the first occasion after the Act was passed, instead of the Supreme Court Rules Committee. This mirrored the approach taken in England and Wales whereby the relevant civil procedure rules were made by the Lord Chancellor as opposed to the civil procedure rules committee.

The Lord Chief Justice of Northern Ireland was informed before the introduction of the Bill of the need for a special procedure to make the first set of rules. The Lord Chancellor, in consultation with the Lord Chief Justice of Northern Ireland, made the first set of rules, but the Supreme Court Rules Committee may make any subsequent rules or amendments as and when necessary. Rules made by the Supreme Court Rules Committee will be subject to the normal requirements of the Judicature (Northern Ireland) Act 1978, including the negative resolution procedure.

The Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005 introduce a new Order 116A to the Rules of the Supreme Court (Northern Ireland) 1980. The new rules in Order 116A are based on the general principle that the existing provisions of the Rules of the Supreme Court relating to applications and appeals in general should apply to control order proceedings and appeals subject to any necessary modifications as set out in Order 116A.

The order is divided into five parts. Part I deals with the scope of the order, the interpretation of terms used, and necessary modification of the overriding objective of the Rules of the Supreme Court, to ensure that sensitive information is not disclosed contrary to the public interest. It has been modified for the purposes of the new order by placing a new duty on the court to ensure that information is not disclosed contrary to the public interest and by requiring the overriding objective to be read and given effect in a way which is compatible with that duty.

Part II deals with applications to the High Court relating to derogating control orders. Part III deals with leave applications, references and appeals to the High Court relating to non-derogating control orders. Part IV deals with onward appeals to the Northern Ireland Court of Appeal. Part V contains general provisions that apply to all proceedings in the High Court and Court of Appeal brought under the Prevention of Terrorism Act. This includes provision in Rules 25 to 28 for closed hearings and the use of special advocates.

Finally, Part V also includes provisions in Rules 30 to 32 which require the Secretary of State to disclose to the court all the material available to him and which is relevant to the matter under consideration. The Secretary of State must also disclose all such material to the other party,. except where the court permits him to withhold material on the grounds that disclosure would be contrary to the public interest. If the Secretary of State withholds material from the other party without the permission of the court, the court may prevent the Secretary of State from relying on such material himself, or it may withdraw the matter from its consideration. These rules reflect the requirements of paragraph 4(3) of the schedule to the Prevention of Terrorism Act 2005, which was inserted by an amendment to the Bill to meet concerns about the need to establish a procedure for the disclosure of exculpatory material.

That is an outline of the substantive provisions of the Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005.

Moved, That the rules laid before the House on 27 June be approved [2nd report from the Joint Committee].—(Baroness Ashton of Upholland.)

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip

My Lords, I am most grateful to the Minister for introducing the Rules of the Supreme Court (Northern Ireland). But once again we are in the position of having to retrospectively agree to new rules because there was not time to obtain the approval of both Houses before the Recess. The explanation, of course, is that there were post-election difficulties establishing the new membership of the Joint Committee on Statutory Instruments. So the noble and learned Lord the Lord Chancellor used his power to bring them in.

That having been said, we on these Benches are able to support Part II of the schedule. Indeed, we supported the Government on this part of the Bill when it was going through Parliament. The difficulties arise in Part III on the making of non-derogating control orders. I am sure that noble Lords will remember the all-night Sitting, although there are not many of them here today. We took on the issue of the Secretary of State having the power to make control orders. We believed then, as we do now, that the decision to impose a control order should in all circumstances be a judicial one, made in accordance with due process and with the necessary safeguards and guarantees against injustice.

It is the perception of injustice which will inflame communities and increase the danger of creating more terrorists than we can control, either by imprisonment or by these orders. We are in an almost impossible position whereby we find that we do not object to the content of the rules but find the process of dealing with the reasoning and legislation behind them completely inappropriate.

We are hamstrung by the process in the Prevention of Terrorism Act 2005 which enables the Secretary of State to take away someone's liberty whether or not he or she is a British citizen. We will be told, I am sure, that the use of judicial review will counteract the need to concern ourselves overmuch with that process. But that will be a matter of seeing whether the Secretary of State has undertaken his duties properly according to law. Judicial review will not address the problems of deciding cases on their merits. Perhaps the Minister is able to tell us what the Northern Ireland Human Rights Commission has said about the rules. Has the Police Service of Northern Ireland been consulted? How are the orders to be enforced? Is it envisaged that the police will need extra resources to enable them to carry out those orders? How will the special advocates that the noble Baroness spoke about be chosen?

We are still struggling with too much direct rule by feat. We all long for the Northern Ireland Assembly to be up and running as soon as possible so that the people of Northern Ireland can have their own voices heard in these matters and that they will be able to scrutinise their own legislation. Until that happy day, however, we must soldier on of course, but we had been led to believe that the Northern Ireland Office would come up with rather more substantive proposals for improving Northern Ireland scrutiny. While some very small improvements have been made—such as giving us advance notice of draft orders which are to come before us, for which we are grateful—that is not really very much help.

Liberal Democrats have made proposals before, one of which was using the MLAs as a prelegislative scrutiny body, pending the reconvening of devolved institutions. But Her Majesty's Government, I am afraid, pooh-poohed that. We believe that at least that was an imaginative proposal. Why can the NIO not show imagination and come up with significant improvements? It is very discouraging. I once again urge the noble Baroness to come forward, or to speak to her Northern Ireland Office colleagues, with serious and workable proposals which will show goodwill and ensure that the people of Northern Ireland see that we are scrutinising their legislation with the same depth in which we undertake any legislation in this House.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

My Lords, the Rules of the Supreme Court (Northern Ireland)(Amendment No. 3) Order 2005 incorporates Order 116A into the Rules of the Supreme Court (Northern Ireland) 1980. The order sets out special procedures for court proceedings under the Prevention of Terrorism Act 2005. This House has already discussed the Civil Procedure (Amendment No. 2) Rules which introduced a new Part 76 into the Civil Procedure Rules. The concerns that we expressed at the time of the debate on those rules apply equally to this order.

We are extremely surprised at the delay in bringing the measures forward. The Prevention of Terrorism Act and the special procedures for court proceedings and appeals relating to control orders were made on 14 March 2005. Why has there been a delay of almost seven months before bringing this statutory instrument forward? How has the Act been applied to Northern Ireland in the interim?

Then there is the matter of new Rule 2 which deals with the overriding objective. The essence of the overriding objective is that cases should be dealt with justly. That is the cornerstone of our civil procedure rules, and it is crucial to the administration of justice that that should remain the case, despite the temptation to derogate in the fight against terrorism.

I understand that the Minister in the other place has had several helpful discussions with my colleagues there; but we remain unconvinced of the need for a new Rule 2 in new Order 116A. It provides that,

"the overriding objective . . . must be read . . . in a way which is compatible" with the court's duty to ensure that,

"information is not disclosed contrary to the public interest".

In effect, that gives Rule 3 precedence over the overriding objective. The reasoning behind the overriding objective not being disapplied—that it is merely subject to the court's duty to ensure that information is not disclosed contrary to the public interest—cannot disguise the fact that the overriding objective is capable of being overridden. Ensuring that information is not disclosed contrary to the public interest can be achieved without making the overriding objective subject to the provisions in new Rule 2(1) in new Order 116A. No doubt many documents relating to other cases are withheld in the interests of national security and so on; but I would have thought it unnecessary to set the dangerous precedent of usurping the overriding objective.

We also have concerns about new Rule 24(2)(c) which provides that no hearing would be required for an appeal where the controlled person is not represented and when he or she is,

"outside the United Kingdom or it is impracticable to give him notice of a hearing".

We feel that the exception to the requirement for a hearing is unnecessarily broad. Will the Government clarify the intended use of this provision? Would not an unrepresented person be the person most in need of a hearing? The proceedings will in any case be rather one-sided, with in-camera meetings, secret evidence and special advocates. Would it not be prudent to give the controlled person at the very least the reassurance of a hearing, rather than provide an excuse not to have one because it is impractical?

Our last concern is the use of special advocates. New rule 27 lists the functions of special advocates. Will the Minister clarify whether the specific functions that are listed are exhaustive? If so, should the list be widened to permit further scope to represent the subject of the order's interests as the use of special advocates becomes increasingly refined? Will the Minister tell us about the Government's progress in reviewing the use of special advocates and striving to find a more acceptable model?

We remain concerned that the rules may add further injustices to the existing problems in the Prevention of Terrorism Act 2005 regarding the infringement of civil liberties. We look to the Government to provide us with reassurances that that is not the case.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am grateful to the noble Baroness and to the noble Lord for their comments and I will endeavour to deal with the questions that they have raised. I will agree to disagree with the noble Baroness, Lady Harris, on the background to the issues. I also remember the all-night sitting. It was an important debate. I am grateful that, in raising some of the broader issues, the noble Baroness is not saying that what I am bringing forward today is something with which she could fundamentally disagree.

I know that the noble Baroness is interested in the issue of enforcement. A breach of the control order would be a criminal offence to be dealt with in the same manner as any other criminal offence. I am not aware of any formal consultation with the Police Service of Northern Ireland, but if the noble Baroness recalls, Section 8 of the Act obliges the Secretary of State to consult with the Chief Constable about whether there is any evidence available that could be used for the purposes of prosecuting the individual in question for a terrorism-related offence. In addition, if the Secretary of State proceeds to make a control order, he must inform the chief constable that he has done so and the chief constable will then be under a duty to ensure that the conduct of the individual in question is kept under review throughout the period during which the control order has effect, with a view to bringing a prosecution for a terrorism-related offence.

The noble Baroness also asked whether we had consulted the Northern Ireland Human Rights Commission. Normally, as she knows, we would seek the comments of that commission, but given the exceptional and urgent manner in which the rules were made, I understand that such consultation was not possible in this particular case.

The noble Baroness asked me about the special advocates. She will know that the special advocates are currently drawn from the Attorney-General's panel of senior counsel. It is envisaged that that will remain the case for the foreseeable future, which I hope addresses that particular point.

Both the noble Baroness and the noble Lord, Lord Kingsland, raised the question of the delay in the rules being brought before the House. As noble Lords will know, the rules were originally made by the Lord Chancellor in consultation with the Lord Chief Justice of Northern Ireland on 5 April 2005, shortly after the Act received Royal Assent. The rules came into force immediately after being made, but ceased to have effect 40 days thereafter as a result of not having been approved by Parliament within the affirmative resolution period. The reason for the delay was largely because the general election intervened and, as the noble Baroness said, there was a subsequent delay in establishing the membership of the Joint Committee on Statutory Instruments, which must consider the rules before they can be considered by this House.

However, the Lord Chancellor used his powers under paragraph 3 (6) of the Schedule to the Act to make the rules again on 26 June 2005 and it is these rules that I now move before the House, this being the earliest opportunity to do so after the Summer Recess. I understand that the Summer Recess does not count for the purposes of the 40 days, in case noble Lords—as I did—added the days up and found that there were too many.

The controls were continuous over the period between the first set of rules that were made by the Lord Chancellor having ceased to have effect and the present set of rules coming into operation. The first set of rules ceased to have effect when the requisite 40-day affirmative resolution period expired on 26 June 2005. The present set of rules were made on 26 of June 2005, came into operation on 27 June and, in accordance with Section 4(A) of the Interpretation Act 1978, came into force at the beginning of 27 June 2005, the previous ones having expired at 12 o'clock midnight on 26 June. Consequently, there was no gap in the provision made by the first and the second set of rules.

The noble Lord, Lord Kingsland, specifically asked about the disapplication of certain parts of the principal rules. Due to the nature of these proceedings, it was considered that it was appropriate to make some modifications to the application of the principal rules. However, we believe that they are limited to what is considered to be necessary. As the noble Lord, Lord Kingsland, said, Order 1, Rule 1A, the overriding objective, is amended so that it is subject to Order 116A, Rule 2(1). The overriding objective is to enable the courts to deal with cases justly, which includes, among other matters, ensuring that the parties are on an equal footing, dealing with cases in a way that is proportionate, expeditious and fair, and allotting each case an appropriate share of the court's resources.

Although proceedings under the 2005 Act should be subject to the overriding objective, such cases are based on sensitive intelligence material. Of course, it is important to ensure that information is not disclosed contrary to the public interest. Therefore, for that reason, the overriding objective has been modified for the purposes of the new order by placing on the court a duty to ensure that information is not disclosed contrary to the public interest and requiring that the overriding objective be read and given effect in a way that is compatible with that duty.

The noble Lord, Lord Kingsland, also asked me about the new Rule 24(2)(c). The intention of that rule is to prevent the court being required to hold a hearing when that would serve no purpose. However, it does not fetter the court's discretion to hold a hearing in any case in which it considers it appropriate to do so. Moreover, the exercise of that discretion will be subject to the overriding objective to deal with cases justly and, of course, in accordance with the rights protected by the Human Rights Act 1998; in particular Article 6, the right to a fair trial.

Finally, the noble Lord asked about special advocates. It will be a matter for the Northern Ireland Supreme Court Rules Committee to make any further amendments to the rules, which will include a list of the functions of special advocates. It will make those rules in the usual way, subject to the requirements of the 1978 Act, by negative resolution procedure. Noble Lords will know that the noble Lord, Lord Carlile, is involved in a review, which I gather will report at the end of this year or the beginning of next, to facilitate his observations becoming part of any further legislation that the Government may wish to take forward.

I hope that I have answered all the questions that have been raised. Accordingly, I commend the Rules of the Supreme Court (Northern Ireland) (Amendment No. 4) 2005 to the House.

On Question, Motion agreed to.

House adjourned at thirteen minutes before seven o'clock.

Tuesday, 18 October 2005.