Clause 57

Counter-Terrorism Bill – in a Public Bill Committee on 13th May 2008.

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General provisions about rules of court

Amendment proposed [this day]: No. 213, in clause 57, page 40, line 26, at end insert—

‘(c) the need to ensure that the manner in which the proceedings are conducted is fair to every party to the proceedings.’.—[Mr. Hogg.]

Question again proposed, That the amendment be made.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

I remind the Committee that with this we are discussing the following amendments:

No. 207, in clause 57, page 40, line 29, leave out paragraph (b).

No. 214, in clause 57, page 40, line 32, leave out subsection (4).

No. 208, in clause 57, page 40, line 33, leave out paragraph (a).

No. 216, in clause 58, page 41, line 23, after ‘interest’, insert

‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.

No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.

No. 217, in clause 58, page 41, line 30, after ‘interest’, insert

‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.

No. 226, in clause 58, page 41, line 30, at end insert—

‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal represenative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I was going to say, but you spotted it, Mr. O’Hara, that I would seek to resist the amendment—and then sit down. I might have got away with that another time.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Good afternoon, everybody. Good afternoon, Mr. O’Hara.

I rise to answer the debate on amendment No. 213. As I said earlier, special advocate procedures are available in other contexts, notably the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission. The general objective is to keep the special advocate provisions in the Bill as close to those existing procedures as possible. The clause reflects corresponding powers in the SIAC and POAC provisions—for example, paragraph 5(c) to schedule 3 to the Terrorism Act 2000.

As I indicated, it might be useful if we spoke in more general terms about asset freezing as it is now. In that context, unless the Committee needs greater clarification, I am happy to forgo my contribution to a clause stand part debate.

The Committee will know that asset freezing aims to help prevent terrorist acts by preventing funds, economic resources or financial services from being used or diverted for terrorist purposes. The clause reflects the fact that the United Kingdom does that in accordance with United Nations obligations. The police and security services have noted the positive disruptive impact that asset freezing can have, and have made it clear that the regime is essential for counter-terrorism operations.

In a document published in February 2007 by the Home Office, the Treasury, the Serious Organised Crime Agency and the Foreign and Commonwealth Office, entitled “The financial challenge to crime and terrorism”, we noted that the Treasury had agreed on the advice of the law enforcement agencies to use closed-source evidence in asset freezing cases if there were strong operational reasons to impose a freeze but insufficient open-source evidence was available. The document stated:

“In order to ensure the fairness of any court challenge to the imposition of a freeze, the Government will introduce a procedure for the appointment of special advocates to represent the interests of the applicant in respect of the closed evidence”.

It should be noted that the Bill’s provisions are not about the Treasury’s decision to freeze a person’s assets; they deal with subsequent challenges by the designated person or another affected person to that decision or a related licensing decision.

With regard to some of the concerns expressed this morning, these are enabling powers. As such, they should be drafted broadly, with the rules of court giving the details. However, I assure the Committee that the provision has been drafted to ensure that all cases are dealt with in a consistent and fair manner, with regard for the rights of the appellant and the Government’s need to withhold material in the interests of national security.

The amendments seek to make provision for a level of detail that is not appropriate to be included in the Bill. Many of the concerns are about the detailed operation of the system. In general, I support the underlying concerns for protection and fairness for all parties. Those will be addressed in the rules of court, which will be put to Parliament for approval. I hope that the Committee understands that the vagaries of time do not allow me to say absolutely, but as I have said about assorted codes of practice and other secondary matters that follow on from the Bill, I hope to make the draft rules of court available before Report.

It may be stating the obvious, but I want to clarify the meaning of certain provisions. First, the words “in the absence of” a party or a legal representative of that  party in clause 57(4)(b) exclude the designated person and his open advisers. However, they do not exclude the special advocate, who is appointed to represent the interests of an excluded party in exactly those circumstances. Earlier references to the designated person or his agent—in this case, the special advocate—not being able to be at the closed session are not accurate. They were not a part of the process as I understand it. The interests of the designated party were absolutely excluded from the proceedings.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I am sure that I will be shot down in flames and corrected, but my reading of clause 57(4)(b) is thus:

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party);”

Does that not mean that the lawyer for the party would be excluded from that hearing?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

But not the special advocate—that is the whole point. The whole purpose of the special advocate provision is to have the advocate in the room during those nominally ex parte proceedings, given that the legal representative and the designated person are excluded. That is the whole purpose of the special advocate process.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I do not like to disagree with the Minister but in

“enabling the court to conduct proceedings in the absence of any person,”

“any person” actually includes the special advocate, unless that phrase is so constructed that it does not include the special advocate. As drafted at the moment, the rules could exclude the presence of the special advocate.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No. Subsection (5)(b) clearly says:

“references to a party’s legal representative do not include a person appointed as a special advocate.”

With respect, in relation to the provision that the right hon. and learned Gentleman just read,

“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party)”,

subsection (5)(b) quite deliberately puts a special advocate outside the definition of the individual’s legal representative.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I hope that I can help my right hon. and learned Friend the Member for Sleaford and North Hykeham. I disagree with the Minister: I appreciate his point that a special advocate is not the legal representative of a party, and that the advocate’s appointment is independent of the court. However, my reading of subsection (4)(b) is that it enables the court to conduct the proceedings in the absence of any person. That, on the face of it—although it might be a bit far-fetched—would appear to allow the court to conduct its proceedings with nobody present at all.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It says that

“in the absence of any person, including a party to the proceedings (or any legal representative of that party);”

I read that as going further than just excluding parties to the proceedings.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, because in part, this has to be read with the rules of court, which subsection (6) picks up.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

Far be it from me to come to the assistance of the Minister but I read it differently, because I am reading in the context of the statement:

“Rules of court may make provision”.

That is the crucial part. It is a permissive power, but to exclude any person. That does not necessarily mean that it excludes all persons.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Exactly so, which is the interplay with subsection (6), which sweeps all that up.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

We do not know what the rules will do. That being so, we have to interpret the Bill as it is currently before us. Subsection (4)(b) refers to

“enabling the court to conduct proceedings in the absence of any person”— pausing there, “any person” includes a special representative—

“including a party to the proceedings (or any legal representative of that party)”,

that is, the affected person. But nothing in the Bill provides that the special advocate is not caught by the phrase “any person”.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Well, the very next paragraph does precisely that. Subsection (4)(c) says that the rules of court may make provision

“about the functions of a person appointed as a special advocate”

That interlocks with subsection (6). It is necessary to put them all together. As I said at the beginning, I shall make it very clear that the draft rules should be available to the House before Report. The right hon. and learned Member for Sleaford and North Hykeham falls into the trap of isolating a clause without looking at all the interlocking parts both in and across clauses, which is easily done but should not really be done by such a learned and experienced gentleman.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This may be an exercise in semantics and I do not want to get bogged down in a debate that might be somewhat academic. However, on this subject I must say that I happen to agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham.

Granted everything that the Minister has said about special advocates and the fact that they are not one of the parties to the proceedings, the power to exclude any person, as I read it in subsection (4)(b), appears to give the tribunal a power—which might be derived from the previous rules about the Special Immigration Appeals Commission—to conduct proceedings without anybody present at all. The fact that there may be other rules,

“about the functions of a person appointed as a special advocate”,

or all the other matters in that subsection does not prevent the ability to remove everybody from the court proceedings entirely. [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position that that is not right. If he can show me something within the text that persuades me of that, I will happily give way to him.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

You cannot; you are intervening at the moment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Quite right, and I have intervened long enough.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. If there is going to be a dialogue of interventions, they should come from a standing position.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am sorry, Mr. O’Hara; I am now standing and I can intervene on the Minister, because he is the one who is speaking. I could not intervene before, although I was invited to do so.

We are making a mountain out of a molehill here. Yes, the rules of court could make provision in exactly the way that the hon. and learned Member for Beaconsfield and the right hon. and learned Member for Sleaford and North Hykeham say. It is open to the interpretation that “any” could mean “all” in the context of the rules of the court. Subsequent clauses make it clear that that is not the intention; the Minister is right in saying that.

However, I do not think that one can read “any” as necessarily meaning “all” in this context. It is a permissive power within the rules of court, and it would be for the rules of court, not the tribunal, to determine that. The Minister could usefully avoid the ambiguity in a later draft, but I do not think that it necessarily means what the hon. and learned Member for Beaconsfield says that it means.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I appreciate that this discussion is not entirely about semantics, given that we do not have the rules of court in front of us. However, I give the assurance that the interpretation as made will not happen. I grant that the interpretation was not made wilfully; although some of us struggle with the legalese, I take that view rather than the stricter version. It will not happen that the party will be denied a special advocate and this measure is drafted so that the special advocate is in the room rather than otherwise; that is the whole purpose of having the special advocate there.

However, I accept that that is difficult to ascertain on trust from me, without our having the rules of court in front of us. I therefore assure the Committee that I will try to ensure that that happens before Report. Anyway, there will be a subsequent parliamentary procedure on the rules of court; if people remain dissatisfied, they can react accordingly.

Secondly, regarding the words in subsection (4)(a),

“without full particulars of the reasons for the decisions to which the proceedings relate being given to a party”,

they mean that the party and their own advisers will not be informed of the reasons, but they do not mean that the special advocate appointed to represent the party’s interests will not be informed of them. On the contrary, the special advocate will be informed of those reasons and will have an opportunity to make representation to the judge in the interest of the excluded party.

The Treasury notifies individuals of the reasons behind their designation, as far as possible. Where closed-source material has been used to inform a designation decision, it might not be in the public interest to disclose that.  However, to the extent possible, given the requirements of national security—as in other such constructions—a gist will be provided.

The point of the special advocate regime, however, is to create a structure in which the court, in hearing a challenge, can consider material that cannot be openly disclosed, and can do so in a way that preserves to as great a degree as possible the fairness to the designated person. However, it necessarily involves withholding certain material from that person, for reasons of national security; if that were not so, there would be no need for a special advocate.

The structure of the scheme and the provisions are very closely modelled on schedule 3 to the Prevention of Terrorism Act 2005, which set up the special advocate regime, as the hon. Member for Somerton and Frome suggested, for control orders. That regime was recently considered by the House of Lords Judicial Committee in the case of MB. Subject to one amendment, which is reflected in clause 58(6) of the Bill, the structure was held to be fully compliant with article 6 of the European convention on human rights. In the Bill, we have sought to replicate, virtually identically, the provisions in the Prevention of Terrorism Act 2005. One addition to the Bill is clause 58(6), which expressly recognises the relevance of the right to a fair hearing under article 6 of the European convention on human rights.

As hon. Members will be aware, there is no special advocate regime for asset freezing—otherwise we would not have the present clauses. That means that it is not possible to rely on evidence that cannot be disclosed openly, unless the judge uses his inherent discretion to appoint a special advocate on an ad hoc basis. We seek merely to formalise that arrangement.

In the only case of this nature to have come to court so far—A, K, M, Q and G v. HM Treasury—the judge did not feel that he had such discretion. He felt that such discretion arose only where the need for a special advocate would be a rarity. In a situation such as asset freezing, where it is clear that closed material will often be relevant, it is for Parliament to impose such a scheme through legislation, not for the judge to introduce one. That is what we are doing these provisions.

There might be circumstances in which a hearing is not necessary or appropriate. The draft rules indicate that all proceedings under this part of the Bill must be determined at a hearing, except when the applicant withdraws the application to set aside the asset freeze, when the Treasury agrees to the asset freeze being set aside, when the appellant withdraws an appeal, or when the Treasury consents to an appeal. In those latter cases, a hearing will not necessarily be needed or required, so we need a little flexibility to enable them to be disposed of without a hearing.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:15 pm, 13th May 2008

I am sorry to intervene on a slightly peripheral point, but I hope that we will have a chance of dealing with it when we look at the clause, because we have not touched on it. The clause is procedural, but the Minister will be well aware that he has a problem in relation to the power to seize assets under the United Nations order in council. Was there any proposal to address that issue in the Bill?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, in the sense that we are currently appealing against that decision, so the position is very difficult. I cannot say in absolute terms whether the appeal will have run its course by the time that the Bill has completed its passage through Parliament, but I will keep that under advisement. I will not give an absolute no, but I am in the hands of the timing of the appeal process and, of course, its outcome. I would not dismiss what the hon. and learned Gentleman says, but we are really talking about formalising and improving the system as it stands.

To return to the point about how to dispose of cases that do not necessarily need a hearing, we might well need an amendment that adds a phrase such as “where both parties agree to proceed without a hearing”, rather than making things compulsory, as at present.

Concern has also been raised about the interests of a third party with a legitimate claim on frozen funds. The Treasury may—and usually does, when requested—grant licences to allow exceptions to the prohibitions. Licensing is an integral part of ensuring that asset-freezing measures are proportionate, while ensuring that funds are not diverted to terrorist purposes. Licences also ensure that third parties are not harmed by the asset freeze.

Where someone has a legitimate claim to frozen money, the Treasury can grant a licence to allow payment to be made. The third party will be able to bring a challenge to court where they consider the Treasury’s refusal to grant a licence unreasonable or inappropriate.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister is referring to the rights of possibly innocent third parties. Is he saying that those will be dealt with in the rules, or that something in the Bill provides for innocent third parties to make an application to the Treasury?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, I think that I am saying that that will be duly reflected in the rules of court because it is part of the process now.

Amendment No. 207 is not necessary. It would be more appropriate to preserve the court’s discretion to determine whether a hearing is appropriate and to avoid inappropriate wasteful hearings, notwithstanding my point about cases where both parties agree not to proceed with the hearing. We therefore resist the amendment, although we do not dismiss it entirely.

Amendments Nos. 208 and 214 would—quite rightly in the minds of those who tabled them, I guess—delete some or all of clause 57(4), which would entirely defeat the purpose of the asset-freezing provisions in part 5. This part creates, by way of the appointment of a special advocate to represent the interests of the applicant, a way in which the Treasury can reveal to the court and to the special advocate closed material on which it relies, but that it cannot, for reasons of national security or public interest, make available more widely—including to the applicant. I will therefore resist those amendments.

Amendments Nos. 213, 216 and 217 all relate to the protection of fairness, and I agree with the right hon. and learned Member for Sleaford and North Hykeham that it is very important that, in all disputes, the proceedings are, and are seen to be, conducted fairly. Of course, I am going to invoke article 6 of the European convention on human rights, among other things. In a very recent  judgment—I think that it was made in October or November last year—a similar special advocacy system was broadly afforded a clean bill of health by the House of Lords. It was an overall judgment. All sides sought clarity from it, although that was not forthcoming in all regards—there was a little bit in it for everybody. The amendments are not necessary for the protection of fairness for the individual.

Amendment No. 225 is a requirement to disclose adverse material. This too runs counter to the whole premise of a special advocate system, which, at its root, has a desire to instil as much fairness as possible in the system. Amendment No. 226 refers to the proposed additional requirement for material in support of the applicant to be disclosed, which, again, runs counter to what we are seeking through the special advocacy system and by trying to be as fair as possible to the designated person.

In summary, we think that putting the special advocate element in the Bill is useful and substantially better than the system that prevails for all concerned at the moment. It is rooted in law and systems that are already in place under control orders, the Special Immigration Appeals Commissionand the Proscribed Organisations Appeal Commission. I do not think that any of the amendments offer a substantial improvement, and I urge that they all be resisted.

Mr. Hogg rose—

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. Before I call the right hon. and learned Member for Sleaford and North Hykeham, it is quite clear that the nature of this block of amendments is such that the Minister has said all that he would need to say in the clause stand part debate, so I will group that debate with this one. If, therefore, any member of the Committee wishes to speak to that motion, now is the time to do so.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I understand that decision, Mr. O’Hara, and make absolutely no complaint about it. May I say, however, that I am very unhappy about the response that we have received, and I am going to explain the reasons why over some little length. To begin with, let us be absolutely plain that a special advocate is a very imperfect procedure for guarding people’s rights. A special advocate is not the personal representative of the affected person; he has a special status. He may not reveal large chunks of the evidence that is communicated to him. Consequently, he cannot get the instructions of the affected person as to that material. In substance, the special advocate’s duties are not owed to the affected person, and that is why many special advocates have expressed real concern about and dislike of the procedure. I have never served as a special advocate, but I certainly understand why those who have believe that the system is essentially flawed.

Secondly, we have been told that draft rules will be laid before the House on Report. That may well be true, and I will welcome it. Let us remember, however, that we cannot amend the draft rules. They will considered, I think, under the affirmative procedure, but they may be either rejected or accepted in whole. I dislike rules of such far-reaching consequence being dealt with by statutory instrument, rather than in a Bill.

It is important that the Committee, and through it the wider public, understand how far-reaching clauses 57 and 58 are. They will enable the maker of the rules to publish rules that almost entirely in favour of the Treasury and bear little relation to the interests of the affected person. As has been pointed out, under clause 57(4), proceedings could take place

“in the absence of any person”.

Perhaps that is not the intention, but the special advocate could therefore be excluded.

Evidence will not have to be disclosed to the affected person; only a summary of evidence will be required. In fact, the proceedings could be determined without any hearing at all. No doubt all that is meat and drink to the Treasury, but to an affected person it is pretty ghastly.

Then we examine the rules under clause 58 and find that the disclosure provisions are such that the maker of the rules can, in effect, exclude almost any material from the affected person. There are very few safeguards in the Bill and my amendments are intended to redress that balance. Amendment No. 213 would require the maker of the rules to ensure that

“the manner in which the proceedings are conducted is fair to every party to the proceedings.”

I ask rhetorically why on earth we cannot put that in the Bill. It seems to me that that is the duty of every parliamentarian. Amendment No. 216 would require the maker of the rules to ensure that

“the withholding of the material would not cause injustice to a party to the proceeding.”

Again, why on earth are we not putting that in the Bill?

Amendment No. 217 would require that a summary be

“sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.”

That seems to be a basic requirement. Amendment No. 266 would require that, in the event of proceedings, the

“material which supports the case of a party” may not be withheld. My intention is that the Treasury should not be in a position to withhold from parties to the proceedings material that undermines its case or promotes that of the affected person. The Treasury does not have to bring forward any freezing procedure if it is worried about the nature of information or the means by which it has ascertained it. If it does, it seems to me that some basic rules should be observed.

The hon. Member for Meirionnydd Nant Conwy made a perfectly fair point about affected third parties. We are told that the rules will address that, and let us hope that they do, but I cannot see why the Bill does not address it. It is of fundamental importance. I shall not withdraw the amendment. I shall press it to a Division, and the same will apply to stand part. The clause is profoundly unsatisfactory and I am against it.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division number 5 Nimrod Review — Statement — Clause 57

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 3.

Division number 6 Nimrod Review — Statement — Clause 57

Aye: 11 MPs

No: 3 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 57 ordered to stand part of the Bill.