Special Immigration Appeals Commission (Procedure) Rules 2003

House of Lords Monday 31st March 2003

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin) rose to move, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].

The noble Lord said: My Lords, I am grateful for this opportunity to explain the Special Immigration Appeals Commission (Procedure) Rules 2003, which were laid before the House on 18th March 2003. The rules were withdrawn on 24th March and a revised draft incorporating some minor amendments were relaid. That was as a result of scrutiny of the draft by a legal adviser to the Joint Committee on Statutory Instruments, which brought to light a small number of errors. The relaid draft corrects those errors and incorporates some drafting improvements recommended by the JCSI legal adviser. The rules have already been debated and approved in another place on the 26th March 2003. I beg to move that they be approved.

Although there is no statutory requirement to consult on these rules, which are outside the supervision of the Council on Tribunals, a limited consultation has been undertaken. A wide cross-section of interested parties have been consulted, including human rights groups, lawyers and the judiciary.

It may be helpful if I set out briefly the background. The Special Immigration Appeals Commission (SIAC) was created by the Special Immigration Appeals Commission Act 1997 to hear immigration and asylum appeals. An appeal lies to the commission if it cannot be heard by an immigration adjudicator because the Secretary of State has certified that the decision being appealed was taken on national security or other public interest grounds.

The commission's jurisdiction was extended following the September 11th atrocity and the commencement of the Anti-terrorism, Crime and Security Act 2001, which extended the counter-terrorism measures that were already in place in the United Kingdom. Section 21 of that Act enables the Home Secretary to certify a person as a suspected international terrorist, if he reasonably believes that the person's presence in the United Kingdom is a threat to national security and suspects that the person is a terrorist. That allows the individual to be detained, even when there is no imminent prospect of him being removed or departing from the United Kingdom. Section 25 provides a right of appeal to the commission against certification. If a certificate is upheld, Section 26 requires the commission to conduct a review six months after the appeal has been determined, or if no appeal was made, six months after the certificate was issued. Reviews must then be conducted every three months thereafter.

The commission's jurisdiction was further extended by the Nationality, Immigration and Asylum Act 2002 to include appeals against a decision of the Secretary of State to make an order depriving a person of British citizenship status.

Therefore, the new rules are being introduced to serve four key functions. First, they set out the specific procedures to be followed for appeals against certification and reviews of certification under the Anti-terrorism, Crime and Security Act 2001. Secondly, they apply the procedures for appeals before the Special Immigration Appeals Commission to appeals against decisions on deprivation of citizenship. Thirdly, they bring the rules more closely in line with procedures for appeals before the Immigration Appeals Appellate Authority. Finally, they streamline and clarify the procedures to be followed.

Perhaps I may now say a few words in more detail about the rules. They replace the existing Special Immigration Appeals Commission (Procedure) Rules 1998, which are revoked by Rule 55. That will make them easier to understand than if the 1998 rules had been amended.

The new rules set out the commission's general duty to secure that information is not disclosed contrary to the public interest. They provide for service of the notice of appeal on the commission rather than on the Secretary of State–which has been welcomed by many consultees–in Rule 7. The time limits for appealing against an immigration or asylum decision are now, under Rule 8, five working days for people detained; 10 working days for people not detained–that is the main change–and 28 days for people abroad.

Those time limits are to correspond with new time limits for appeals to an immigration adjudicator in rules made under the Nationality, Immigration and Asylum Act 2002. In special circumstances, the commission may extend the time limits if satisfied that it would be unjust not to do so–Rule 8(5).

The new rules contain specific provisions for appeals, in Part 3, and reviews, in Part 4, to be considered under the Anti-terrorism, Crime and Security Act 2001. Part 7 contains general provisions, which apply to proceedings before the commission and include rules governing the procedures to be followed by special advocates. As I am sure that the House knows, a special advocate is appointed by a law officer under Section 6(1) of the 1997 Act to represent the interest of an appellant in any proceedings before the commission from which the appellant and his legal representative are excluded. The commission may exclude the appellant and his legal representative from a hearing if it considers it necessary to secure that information is not disclosed contrary to the public interest–Rule 43.

The new rules clarify the role of the special advocate and prohibit the Secretary of State from relying on material which has not been disclosed to the appellant, unless a special advocate has been appointed–Rule 37. The rules further detail when an appellant and a special advocate can communicate–Rule 36. The appellant can continue to contact the special advocate through his representative, after the Secretary of State has disclosed material to the special advocate, but the special advocate can contact the appellant only in accordance with directions of the commission.

I have outlined the key provisions of the procedure rules and do not intend to burden your Lordships by going into detail about each draft rule.

I commend the draft procedure rules to the House. I confirm that in my opinion they are compatible with the European Convention on Human Rights.

Moved, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].–(Lord Filkin.)

Viscount Bridgeman: My Lords, your Lordships will be considerably reassured by the report of the noble Lord, Lord Carlile of Berriew, on the working of SIAC, which was comprehensively debated on 11th March during our debate on the continuation of Section 21 of the Anti-terrorism, Crime and Security Act 2001, led by the noble Lord, Lord Filkin. Have the comparatively minor adjustments suggested by the noble Lord, Lord Carlile, been incorporated into the rules? In other respects, we support the rules.

Lord Dholakia: My Lords, I thank the Minister for his explanation of the rules. One matter that causes me concern relates to Part 7, which covers, "General Provisions". Rule 34 deals with the appointment of special advocates. Rule 35 specifies the function of a special advocate, which is,

"to represent the interests of the appellant by . . . making submissions to the Commission at any hearings from which the appellants and his representatives are excluded".

There are further powers to cross-examine witnesses and make written submissions to the commission.

Rule 36 is also the subject of serious concern. It states:

"The special advocate may communicate with the appellant or his representative at any time before the"–

Home Secretary–

"serves material on him which he objects to being disclosed to the appellant".

However, once the material is served on the special advocate, he,

"must not communicate with any person about any matter connected with the proceedings".

I know that we have argued that case at some length during the passage of the Nationality, Immigration and Asylum Act 2002, but we should seriously ask in the interests of justice whether such a condition is necessary.

The question is: will the system will really work with such an approach? One already hears mutterings from those involved in immigration work that the new rules gag the special advocate about closed material that he cannot reveal or speak about. That rule should be urgently reviewed. I suggest to the Minister that my noble friend Lord Carlile of Berriew, who has done some considerable work on the matter, be asked to examine the rule as part of his role in the matter.

Lord Filkin: My Lords, I am happy to respond to both points. In answer to the question posed by the noble Viscount, Lord Bridgeman, about what action has been taken following the comments of the noble Lord, Lord Carlile, the new rules take them on board. They include provision for paper reviews; cases may be heard together; and the rules governing communication between the special advocate and the appellant following disclosure of closed material have been clarified.

The question of the noble Lord, Lord Dholakia, perhaps goes less to the rules themselves–which are, of course, the subject of our debate–than to whether SIAC's procedures and the nature of appeals from the three types of cases to SIAC are necessary. With the respect always due to the noble Lord, that returns to the nature of the Act itself–or the sequence of three separate Acts that have chosen to put those powers and duties on SIAC and to establish the process of the special advocate.

Rather than wearying the House with great detail, the rules attempt to balance liberties. They attempt to balance the need to protect the liberties of British citizens in general–in circumstances in which one believes that there may be some threat to their freedom and liberty as a consequence of the extreme circumstances and state of emergency in which we live–with the rights and liberties of a person whom the state has, in its opinion, a valid reason to believe to be, under one of the legs, a serious and present threat to the security of British citizens.

The rules try to square the circle of those two conflicting liberties by trying, for example, to give someone who is being detained under the Anti-terrorism, Crime and Security Act 2001 a right of appeal. It does so in difficult circumstances because it seems to me that it does so when some of the evidence that has led to the state expressing its concern cannot be shown in public or to the appellant because doing so might in many cases undermine the sources whence the information came.

I am sure that in the present circumstances I do not need to go into detail about why that threat is real rather than theoretical. In such circumstances, intelligence sources are a crucial part of the state's armoury in trying to protect its citizens from extreme or vicious attack.

As the House knows, the process is an attempt to ensure that there is a suitably qualified person to ensure that the interests of the appellant are properly represented, who can read the confidential evidence and who can argue the case before SIAC in that person's interest. As I think is known, under Rule 36, the special advocate cannot communicate about the proceedings after seeing closed evidence. For the reasons that I have given, it is important that there is no risk of disclosure. There is no evidence that that procedure does not work. However, there is provision for SIAC itself to approve communication if it considers it necessary under Rule 36(4).

Having said all that, the noble Lord, Lord Carlile, is in position on those issues. He has already considered some of them generally; I think that the House has appreciated his report. There will be further opportunities. We recognise that the measures are strong; we believe that they are necessary. The order seeks to put clear rules before SIAC in the interests of clarity, justice and the appellant. In that spirit, I very much hope that the House will accept that they represent progress, even though I might not necessarily convince everyone that the original legislation was desirable–although I firmly believe that it is myself. I beg to move.

Moved, That the draft rules laid before the House on 24th March be approved [15th Report from the Joint Committee].–(Lord Filkin.)

On Question, Motion agreed to.

Source for this page: House of Lords Monday 31st March 2003

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