Clause 47 - Proceedings relating to measures

National Security Bill – in a Public Bill Committee am 11:45 am ar 8 Medi 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

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

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow

With this it will be convenient to consider that schedule 7 be the Seventh schedule to the Bill.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Clause 47, and schedule 7, to which the clause gives effect, make further provision for court proceedings in relation to decisions taken under the Bill. I will spend slightly longer on those measures, given the important issue raised by some of the key aspects of those provisions.

Subsection (1) makes clear that an appeal against a court decision in STPIM proceedings may only be brought on a point of law. That limitation is appropriate. The court of first instance has the expertise in fact finding for national security determinations. It has developed expertise and a body of knowledge in an experienced judiciary who hear national security cases. That means it is right that the court of first instance, which has significant expertise, has the final determination on points of fact.

In such cases, it is therefore right to limit the right of appeal to a point of law, as higher courts will not have available the national security information or expertise to make a fair determination on the facts. The approach is reflected from the provisions in the Terrorism Prevention and Investigation Measures Act 2011, and the Special Immigration Appeals Commission.

Schedule 7 makes further provision relating to court proceedings under the Bill, including, in particular, powers to make rules of court about various matters. Critically for the operation of the scheme, the rules will make provision that court proceedings in relation to STPIMs will operate with both open and closed elements given the sensitivity of the evidence that will be a key component of why an individual cannot be prosecuted and why the use of a STPIM is necessary. It would fundamentally undermine the scheme if closed proceedings, where sensitive intelligence and national security arguments can be made, were not available. The individual, and his or her chosen legal representatives, can be present at the open hearings, and see all the material used in those hearings, but they cannot be present at the closed part of the proceedings or see the closed material.

Schedule 7 provides for the appointment of a special advocate in relation to any closed proceedings, who will attend all parts of the proceedings—both open and closed—and, like the judge, they will see all the material, including the material that is not disclosed to the individual.

The role of the special advocate is to act in the individual’s interests in relation to the closed material and closed hearings. Each individual who is subject to a TPIM must be given the gist of the key allegations against them and it is the judge reviewing the case, rather than the Government, who will decide on the level of disclosure required to allow a fair trial.

The proposed level of disclosure is submitted by the security service. Special advocates, who are barristers, representing the defendant in closed material proceedings may then make the case for further disclosure, with the final decision on the level of disclosure being made by a judge.

It is true that this process does not necessarily involve the individual knowing the detail or the sources of the evidence forming the basis of the allegations against them. There are clear reasons why it would not be in the public interest to disclose all that information, for example where the information comes from an informant who may be put at risk, or if the information was obtained using an investigative capability that might be compromised. However, it is equally clear that the requirements of a fair trial would not be satisfied where a case is based purely or mostly on closed material and the open material consists purely of general assertions.

Paragraph 5 of schedule 7 expressly provides that nothing in this rule-making provision or in the rules of court made under it is to be interpreted as requiring the court to act in any way that is inconsistent with article 6 of the European convention on human rights. In other words, the proceedings and any rules of court must be applied in accordance with the right to a fair hearing, which would be concerned in particular with provisions about withholding information from the individual.

Schedule 7 makes further provision relating to the rules that may be made. This includes a power for the court to make an anonymity order preventing the disclosure of information that could identify, or that could tend to identify, the individuals subject to the measures.

Currently, the courts tend to make such an order in respect of most TPIM cases and there are several benefits. The anonymity order limits the impact, including from media intrusion, on the individual’s private and family life. It also limits the impact on the community in which the individual lives, both in terms of community cohesion and ensuring the ability to monitor and enforce the measures effectively without drawing attention or causing concern within the community.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 12:00, 8 Medi 2022

I am grateful to the Minister for that introduction to clause 47 and schedule 7. I am particularly interested in what he had to say on special advocates and I will perhaps come on to that.

Schedule 7 introduces provisions relating to prevention and investigation measures and proceedings, as we have already heard. As outlined in the explanatory memorandum, paragraph 2 will take into account closed elements of proceedings where sensitive material is not disclosed as it would be contrary to the interests of the UK’s national security to do so, with paragraph 3 setting out the rules for the court on disclosure. In previous exchanges, we have examined the balance that needs to be struck on both these issues, so we expect the commitments to both transparency and national security to be weighed delicately in each instance.

We certainly welcome the guarantee around article 6 of the European convention on human rights, which is set out in paragraph 5. Paragraph 10 provides for the appointment of a special advocate in relation to any closed proceedings. A special advocate attends all parts of the proceedings—both open and closed—and plays a key role in scrutinising material while acting on behalf of the individual subject to the proceedings. The explanatory notes say that part of the function of the special advocate is to ensure that the closed material is subject to independent scrutiny and adversarial challenge, including making submissions in closed session on whether the closed material should be disclosed to the individual.

I think that the Minister confirmed that the special advocate would be a barrister, but I could not find any detail within the Bill or the explanatory notes about how a special advocate would be appointed and what their experience and background would be expected to be in such circumstances, when they would be providing such a specialist function. I would be grateful if there was a commitment to ensuring that those things are clear in the Bill and the explanatory notes that accompany it.

Photo of Stewart Hosie Stewart Hosie Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Constitution)

Schedule 7 empowers the court to make rules in relation to reviewing proceedings and onward appearance, and the rules of court must secure not only a proper review of decisions, but

“that disclosures of information are not made where they would be contrary to the public interest.”

We can have determinations without a hearing, without full reasons being given for a decision—the Minister described that—and, when sensitive information is to be laid, hearings without the accused. There is a duty of disclosure on the Secretary of State, but he or she can apply not to disclose certain information on the grounds that disclosure would be

“contrary to the public interest.”

That rule means that the Secretary of State might be able to ignore other requirements to disclose information. That is Kafkaesque.

The Minister, rightly, prayed in aid national security; he was absolutely right to do that. We can all understand that there could be circumstances where such rules would be necessary, but does the legislation describe those circumstances appropriately? The watchwords appear to be “public interest”, but is that not far too wide or far too vague? Given he prayed in aid national security, why do we not only allow the avoidance of disclosure on genuine national security crimes?

Photo of Kevan Jones Kevan Jones Llafur, North Durham

I think the Minister has explained that. I take the point made by the right hon. Member for Dundee East, but as I said earlier on, I think the rules are a sensible safeguard in terms of what we need. Frankly, with no access to legal aid they are for the birds, because no one will be able to use them. We will come on to that debate later.

I want to ask the Minister about the issue of juveniles, which is an increasing problem for our security services. For example, the “Extreme Right-Wing Terrorism” report that we just produced in the Intelligence and Security Committee found that, increasingly, those individuals are young people—some as young as 15. If we are going to apply the rules in some possible circumstances to those individuals, what are the protections for them? If the Minister does not know the answer, I am quite happy for him to write to explain the situation. We are perhaps fixated on thinking that this is about Islamic terrorists and grown-ups, but certainly according to the ISC report, very sadly, in many cases those who are now coming before the courts are minors.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Let me quickly answer the question on who is the appropriate advocate. That is somebody appointed by the Attorney General under schedule 7(10)(1). The person has to be an appropriate law officer, so a barrister or a solicitor. That is how it is determined.

On the question of genuine national security, I understand the point made by the right hon. Member for Dundee East. He will understand that this is a matter of concern for many of us who are devoted, as he knows I am, to the application of the rule of law and the access to justice that this country and many countries in Europe have secured over the past century. That is vital to the provision and protection of liberty in our country. I appreciate his point and the right to a fair trial is essential.

However, it is simply the reality of life in our world that sometimes we need to frame that justice within certain provisions to allow it to be real, and not to be silenced by the inability to bring together evidence that would otherwise protect British people. That means that we have to find ways of balancing it. That is why these court proceedings, which are less than ideal and not the ones that we would like to see, are sadly necessary because of the security restrictions that apply.

On the point made by the right hon. Member for North Durham, he knows that I spent some time in the past few decades hunting people who sought to do our country harm, and he is absolutely right. Sadly, it was not always the people who we see on the various TV shows. Very often, it was people who came at it from a very different angle. I therefore appreciate his point; I will look into it and come back to him.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Schedule 7 agreed to.