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With this it will be convenient to discuss the following amendments: No. 227, in clause 59, page 42, line 12, leave out ‘may’ and insert ‘shall’.
No. 218, in clause 59, page 42, line 18, after ‘excluded’, insert
‘including the consideration of the application referred to in section 58(3)(a)’.
I will speak primarily to amendment No. 215. The clause enables rules to be made about disclosure. I have already pointed out how far-reaching the withholding of relevant information can be. That being so, it is extremely important that someone who has some regard for the interests of the affected person should be present, especially as subsection (3)(a) states that the rules of court must secure
“that the Treasury have the opportunity to make an application to the court...not to disclose material otherwise than to...the court, and...any person appointed as a special advocate”.
Subsection (3)(b) states:
“such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative)”.
Those rules might preclude the affected person or their legal representative from being present at an application. That could have a dramatic effect on the nature of the material that will be presented to the affected person down the track. Who will represent the interests of the affected person at that point? The Minister will no doubt say that the special advocate will, and that is precisely what my amendment says.
I agree with my right hon. and learned Friend that the wording of clause 57(4) could, strictly speaking, despite the comments of the hon. Member for Somerton and Frome, allow everyone to be excluded from the proceedings. However, it seems to me that the special advocate is not a party to the proceedings. I find the wording of clause 58 odd, and I think that my right hon. and learned Friend’s amendment would make an important clarification, but I would not read clause 58(3)(b) as precluding the presence of the special advocate at the application.
I agree with my hon. and learned Friend. It does not, but it does not require that either. I tabled amendment No. 215 because I think it essential that the special advocate’s presence is ensured. I agree entirely with my hon. and learned Friend’s interpretation. That being so, the question is whether we should make it mandatory that the special advocate should be present. I believe that we should, for the reasons that I have outlined. The Bill may permit that, but I want it to be mandatory. That, perhaps, is the only difference between my hon. and learned Friend and me. The Minister might well assert that the special advocate will be present under the rules of the court, in which case I say: let us put it on the face of the Bill.
The hon. Gentleman is quite right, but if he is good enough to look at clause 58(7), he will find that
“references to a party to the proceedings do not include the Treasury”.
The Treasury representative is there. The person who is not there, and who cannot be there, is the affected person or his personal representative. Nothing says that the special advocate must be there, and that is what I wish to achieve.
The right hon. and learned Member for Sleaford and North Hykeham has a point here—the special advocate should be present when an application is considered. I accept that the fact that there is no provision for it, but that he or she is not excluded leaves open whether or not he or she is there, but the Treasury is inevitably party to the application because it is the Treasury that is making the application. Under any normal arrangement, the special advocate ought to be there and there should be specific provision for that in the Bill. I hope that the Minister will accept that principle and, if he cannot accept the amendment, at least make it clear that that is the intention in the rules of court that he intends to bring forward and which we will see before Report.
I am sorry to disappoint because we are where we are, as we were with the last set of clauses. I have not asserted that this will be in the rules of court; I have given the Committee an assurance that it will be. If we are serious in our deliberations to achieve some consistency across our primary legislation, this is lifted almost entirely out of the primary legislation provisions relating to the SIAC, POAC or control orders. There will be the references that the hon. Gentleman requires in the rules of court, and I do give that assurance. That, with the belt and braces approach in subsection 6—nothing in the section or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with article 6 of the human rights convention—achieves the fairness point on which we all agree. However I do want it to reflect and be consistent with other legislation. That is the only reason for the configuration.
I appreciate the Minister’s point, and it is a fair one, about co-ordinating with other legislation, but I have to say that including amendment No. 215, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham, does make perfect sense. There is an oddity about the way the original legislation was drafted. I accept the Minister’s assurances and it is a minor matter, but if my right hon. and learned Friend presses amendment No. 215 to the vote, I will support him because I do not think that I get carried away with the absolute necessity for these two forms of legislation to be identical. The regulations being identical may actually matter rather more and I would assume that they would still be identical. It is an oddity and I think it probably reflects, not a drafting error, but a tendency of the original drafter to short-cut slightly. It seems abundantly plain that the special advocate has to be present.
I take the point that it is a relatively minor drafting issue, but that the substance of it is serious. I do not dispute its serious nature. For example, for control orders, the provisions for the presence of a special advocate at the application hearing appear not in the Terrorism Act 2006, but in the rules made under it—now part 76 of the civil procedures rules.
I am not a seeker of consistency purely to compound a previous drafting error. I take the point about the greater degree of eloquence and clarity—to say the least—in the amendment, but that does not mean that I will accept it. I am happy, however, to reconsider the matter on Report. Certainly the important and substantive point, on which we all agree—that the special advocate should be in the room—was well made. As I said, I shall reconsider the matter in relation to the Prevention of Terrorism Act 2005 and other legislative frameworks. If the amendment would work, and it is in order, I shall return with something similar, to put in the Bill, rather than in rules, something on which we all agree. I am more than happy to give the assurance—not an assertion—that I am prepared to do that.
It would be churlish of me not to acknowledge and welcome what the Minister has said, and on that basis I shall not press the amendment to a vote. However, may I say that his remarks rather indicate the importance of putting in the Bill the requirement reflected in amendment No. 215? When enacting legislation, we look back to past legislation, as he has done. He pointed out the previous legislation making provision for the special advocate, and remarked that it did not make provision for the presence of a special advocate in counterpart circumstances. I suspect that this will not be the final terrorism Bill to be considered by this House, and in future Bills I want the Committee to be able to say, “Well, in the Counter-Terrorism Act 2008, special provision was made for the presence of the special advocate in counterpart situations, so we shall do the same.” We build by precedent, so I want to say something to that effect in the Bill. However, he has been gracious enough to say that he will think about it, so I beg to ask leave to withdraw the amendment.