Clause 18 - Proceedings relating to measures

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 1:45 pm on 30 June 2011.

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Question proposed, That the clause stand part of the Bill.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

This clause and schedule 4 are substantial. They relate to the measures, open and closed material, and the information that is disclosed to the individual. I accept that these provisions have been lifted from previous legislation, but I would appreciate it if the Minister outlined any changes or any aspects that were not appropriate to include in the previous legislation.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

It is a pleasure, Mr Scott, to serve under your chairmanship. I do not want to interrupt our rapid progress, but I would be grateful for a little clarity on a couple of points. If I had had years of legal training, I would not need to raise such points. Subsection (1) states:

“No appeal shall lie from any determination of the court in TPIM proceedings, except on a question of law.”

Will the Minister clarify what that rules out? As I understand it, normal appeals in criminal law can be on a question of law or if there is new evidence. Presumably, if there was new evidence, one would want to still have an appropriate mechanism to check that that actually fits in. I also want to be sure that the clause would not mean that there was not access to the Human Rights Act 1998 and the European convention on human rights. I particularly want the Minister to confirm that article 6 rights would not be prejudiced. I am sure that that is the case, because the Secretary of State would in any case be obliged to act in compliance with those measures.

I will mention schedule 4, if I may. We had some interesting comments from the special advocates.

Photo of Lee Scott Lee Scott Conservative, Ilford North

Order. The hon. Gentleman cannot speak to schedule 4 until we debate it. He must stay on clause 18.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

In that case, I will wait for the Minister to answer my questions on the clause.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

It is right that clause 18(1) follows the provision under the 2005 Act. My right hon. Friend—I am referring to the right hon. Member for Salford and Eccles, friend though she is—will correct me if I am wrong about that. It is a harsh thing to deprive an individual whose liberty has been restrained of the right of appeal, allowed by a judge of first instance, to the Court of Appeal, and indeed thereafter, except on a question of law. Will the Minister undertake to look at the matter? Perhaps I may respectfully suggest that a more sensible limitation would be that no appeal should lie on any question other than a question of law, without the permission of the first-instance judge. There should be an automatic right of appeal on a question of law, and a right of appeal with permission from the first-instance judge on a question of fact, or on a mixed question of fact and law.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I will try to address those comments while keeping in order. Some points relate to this clause, but others read across to schedule 4. I will do my utmost to ensure that I do not fall foul of proceedings, as I know that you will call me to order, Mr Scott, should I stray in that regard.

My hon. and learned Friend the Member for Sleaford and North Hykeham and my hon. Friend the Member for Cambridge highlighted the fact that clause 18(1) states:

“No appeal shall lie…except on a question of law.”

That is a concept with which my hon. and learned Friend and my hon. Friend will be familiar, and it reflects safeguards that exist in other circumstances. On the specific point raised, if the individual finds fresh evidence in relation to the proceedings that would, for example, undermine the case deriving from the fact that the Secretary of State has reasonable belief in the individual’s involvement in terrorism-related activity, he or she may request the Secretary of State to revoke the notice under clause 13(3). If the Secretary of State refuses, the individual has a right of appeal against that decision—in other words, we get into the debate on clause 16(4). Such a right is applied in that way under clause 18, but under those circumstances, a mechanism already exists. I hope that is helpful to my hon. and learned Friend and to my hon. Friend.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I quite accept that if new evidence comes to light, the individual has the right to go back to the Secretary of State and, as was correctly pointed out earlier, they have the right to go to the court. Appeals are concerned with circumstances where a judge has got it wrong; this is different, as we are contemplating a situation in which the Secretary of State gets it wrong and then the judge of first instance gets it wrong. The Bill deprives people of fundamental rights and liberties. In those circumstances, I suggest that with the permission of the judge—who may well say that the facts of the  case are difficult—the individual subject to the TPIM should have the right to go to the Court of Appeal and, if necessary, to the Supreme Court.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

Let me talk through the issue in relation to the law. Subsection (1) makes it clear that an appeal may only be brought on a point of law from any determination by the High Court—or its equivalent in Scotland—in relation to TPIM proceedings. That does not affect the judicial safeguards set out elsewhere in the Bill such as the initial court permission stage, the full review and the various rights of appeal. We have already discussed the test that will apply to those proceedings.

In the context of the full review and the various rights of appeal, the High Court will substantively consider the merits of the Secretary of State’s decisions in each case. A subsequent appeal from the determination of the court of first instance in those proceedings—the High Court—is limited to an appeal on a point of law. That includes an appeal brought by the Secretary of State, as well as by the individual subject to the measures. We judge that limitation to be appropriate because in such cases, the court of first instance is the appropriate fact-finding body. It has developed particular expertise and a body of knowledge in this area of national security, and it has an experienced body of judges who hear those cases. That makes it the right court to review all the material on which the Secretary of State relies to make her decisions, and to make findings on that basis.

In such cases, it is right to limit the right of appeal to a point of law, because the higher courts do not necessarily have the expertise or resources to reconsider the entire factual basis of the case, and it would not be appropriate to have two further opportunities for a full re-hearing of the case—at the Court of Appeal and at the Supreme Court. The limitation on appeals to a point of law is by no means unique to the Bill; there is a similar provision in the 2005 Act, which picks up the point made by the right hon. Member for Salford and Eccles. It occurs in numerous other contexts, including, classically, in relation to appeals from statutory tribunals, such as the Special Immigration Appeals Commission, which is a recognition of the body of expertise that has developed in tribunals of first instance.

Subsection (2) means that the individual subject to the measures, or any person other than the Home Secretary, may not appeal against a court determination at the initial permission stage or on a reference following the use of the urgency procedure. That reflects the role of the first stage of judicial involvement as an initial safeguard, at which the court considers whether the Secretary of State’s decisions were obviously flawed, and which may be heard without the knowledge of the individual who is subject to the measures. The individual has the opportunity to be present and to be represented at the automatic full review of the measures, once they have been imposed, and will also have the full right of appeal contained in clause 16.

I will cut my comments short, as the other points that have been highlighted relate to schedule 4 rather than to clause 18. On that basis, I hope the Committee will agree to the clause.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.