Sixth Standing Committee on Delegated Legislation
Thursday 22 July 1999
[Mr. George Stevenson in the Chair]
Draft Northern Ireland Act Tribunal (Procedure) Rules 1999
4.30 pm
The Parliamentary Secretary, Lord Chancellor's Department (Mr. Keith Vaz): I beg to move,
That the Committee has considered the draft Northern Ireland Act Tribunal (Procedure) Rules 1999.
May I first welcome you, Mr. Stevenson, to the Chair. The purpose of the draft rules is to set out the procedural arrangements and the process for appeals to the tribunal under the Northern Ireland Act 1998. The new tribunal will provide the forum for appealing against a certificate that has been issued on the grounds of national security, public safety or public order in connection with proceedings before the courts or a fair employment tribunal in Northern Ireland.
The tribunal is being established in the light of the European Court of Human Rights judgment in the Tinnelly case. The ruling on that case delivered in July 1998 found that the United Kingdom was in breach of the convention, as an individual had no opportunity to challenge a certificate issued in proceedings initiated by him. The McElduff case is also relevant in that regard. A certificate brought such proceedings to an immediate halt. The Government's aim in establishing the tribunal is to ensure that an individual will now have an opportunity to challenge a certificate issued in connection with court and fair employment proceedings.
The tribunal provisions were first debated by the House of Commons on 18 November last year, when it considered the Lords amendments to the Northern Ireland Act 1998. The tribunal provisions were added to the legislation during its passage through the House of Lords following the Tinnelly and McElduff judgments. It is fair to say that concerns were raised about whether the provisions went far enough to protect the rights of the individual. It was pointed out that they fell short of the usual open and transparent adversarial system that one would expect in judicial proceedings. However, such a system is not possible when national security considerations dictate that sensitive intelligence material has to be protected. It is no exaggeration to say that the lives of individuals may depend on that.
We continue to believe that a very delicate balance is needed, and that that has been achieved through the new tribunal. We should also recognise that the ECHR judgment that gave rise to the tribunal did not anticipate a system under which sensitive intelligence would be disclosed. The judgment fully recognised the difficulties faced when national security is an issue, although it pointed out that it should be possible to find some way of giving an individual a degree of procedural justice. We have achieved that by establishing the tribunal.
That said, national security certificates are a rare event, which is absolutely right given that they are issued by the Executive and very careful consideration is required before they are issued. In Northern Ireland, 44 certificates have been issued since the certification powers were introduced under fair employment legislation in 1976. None has been issued since 1994. The tribunal constitutes two essential safeguards. First, the power to issue certificates will protect national security considerations on the rare occasions on which Ministers find it necessary to issue them. Secondly, it is a new and important safeguard for the individual.
The tribunal will have two functions. It will consider whether an act that had been certified was indeed undertaken for reasons of national security, public safety or public order. It will consider also whether the doing of that act was justified by the purpose stated in the certificate. It will obviously need to be able to reach a view on those matters. Before telling the Committee how the rules will ensure that it can do so, I shall say a few words about the avenues through which an appeal might reach the tribunal.
Section 90 of the Northern Ireland Act 1998 provides for the tribunal to consider appeals against certificates issued in proceedings in which a person claims that an act has discriminated against him in contravention of sections 24 or 76 of The 1998 Act. It is our intention to add to the tribunal's remit consideration of appeals against certificates issued under the Fair Employment and Treatment (Northern Ireland) Order 1998, the Sex Discrimination (Northern Ireland) Order 1976 and the Race Relations (Northern Ireland) Order 1997. I should add that transitional arrangements will be necessary, given the apparent likelihood that the tribunal will be established before sections 24 and 76 of the Northern Ireland Act 1998 come into effect.
The tribunal's provisions have precedents in the Special Immigration Appeals Commission. The rules therefore make provisions similar to the rules that apply to the commission. However, the tribunal rules provide access to the proceedings for the Secretary of State. Her certificate may be the subject of appeal, but she need not necessarily be the defendant in the proceedings; for instance, it could be a private sector employer.
In setting themselves the aim of balancing the rights of the individual against considerations of national security, the Government gave careful thought as to how the individual's rights would best be advanced. We achieved that through giving the Attorney-General the power to appoint a special advocate to represent the interests of the individual if, for reasons of national security, public safety or public order, it is essential to withhold sensitive material from the appellant or to exclude him from the proceedings.
The special advocate arrangements have precedents in the Special Immigration Appeals Commission. The commission was established in the light of a European Court of Human Rights ruling in the Chahal case. It is important to note that the special advocate arrangements have a statutory footing in the legislation that establishes the commission and the tribunal, and the rules build on that statutory basis. We accept that the special advocate arrangements are novel; but, as far as possible within the confines dictated by national security, they provide an individual with some form of representation in tribunal proceedings. Special advocate arrangements are a key feature of the Government's twin aims of protecting national security and underpinning individual rights.
The Bar Council of Northern Ireland has expressed concern about the special advocate arrangements. It takes the view that, although it is a matter for individual barristers, accepting instructions on that basis may be a breach of its code of conduct. The Bar Council is considering the matter further, and we look forward to the outcome of its deliberations, but I happily acknowledge the Bar's helpful comments made during our informal consultations on the rules.
In all its proceedings, the tribunal will be under a duty to ensure that information is not disclosed contrary to the interests of national security, public safety or public order. The rules contain several other measures on the role of the special advocate and on how appeals are to be made. They enable the tribunal to consider objections to disclosure, and include a number of other procedural matters necessary to ensure that the tribunal can reach its own view on the matters before it.
In the final analysis, the tribunal will be able to uphold or strike down a national security certificate. I invite the Committee to approve the rules.
4.39 pm
Mr. Nick Hawkins (Surrey Heath): I join the Minister in welcoming you to the Chair, Mr. Stevenson. The previous time that I was in the body of the kirk, as it were, and you were in charge of proceedings was some years ago, when you gave a splendid speech at the Foxfield industrial railway. I was on a visit to your home area. I do not know whether you remember the occasion—
The Chairman: I shall never forget it.
Mr. Hawkins: When I saw that you were the Chairman of our proceedings, Mr. Stevenson, I was delighted to recall that occasion.
I, too, shall try to be brief. All Members of Parliament are aware that matters relating to the Province of Northern Ireland are serious and deserve serious consideration. The Minister rightly mentioned one or two aspects of the rules that have occasioned some concern—I shall briefly discuss them in a moment.
One of the first lessons that I learned when I entered the House was that it is a great mistake for any Member, whether Front-Bencher or Back-Bencher, to pretend to have knowledge that he or she does not have. Several Committee members have far greater experience of the Province of Northern Ireland than I do, although I have visited the Province in a parliamentary and in a private capacity. However, my hon. Friend the Member for Basingstoke (Mr. Hunter), the hon. Member for Montgomeryshire (Mr. Ošpik), who speaks for the Liberal Democrats, and some Labour Members, have great experience of Northern Ireland, and it behoves me to defer to their greater experience. I also hope that the hon. Member for Lagan Valley (Mr. Donaldson), who is an Ulster Unionist and a Committee member, will later join us. If his attendance is prevented by other urgent matters arising in relation to the Province of Northern Ireland, I should mention that I have had discussions with him, and I know that he has taken a great interest in this subject.
I am glad that the Minister referred to the importance of the ECHR judgments in the Tinnelly, McElduff and Chahal cases. The fact that the ECHR found against the United Kingdom Government obliges them to introduce regulations. It is good that, like the previous Conservative Government, the Labour Government take their obligations in relation to this important matter extremely seriously. If certificates are issued—I appreciate, as the Minister said, that no certificates have been issued since 1994—there should be full compliance with the ECHR. I hope that there will be no more findings against any UK Government in relation to the convention.
The official Opposition welcome the rules that the Government are introducing, although I have one or two questions for the Minister. He mentioned that the Bar Council of Northern Ireland is concerned about the position of special advocates, which he described as being novel. The Minister and I—and, I am sure, all other Committee members—are aware that lawyers and journalists can be treated as targets by terrorist organisations. Happily, that is unlikely to happen in England, Scotland and Wales, although some monstrous crimes have been committed against lawyers and journalists in the Province.
I have never had the opportunity to practice as a barrister in the Province—I am not a member of the Northern Ireland Bar—but I should declare an interest as a barrister at the Bar of England and Wales. I have, however, appeared many times as an advocate in tribunals on the mainland. Although those tribunals have, on occasion, involved security matters, they were not as sensitive as the matters that are referred to in the rules.
Any concerns that the Bar Council of Northern Ireland expresses should be taken extremely seriously, and I am glad that the Minister said that he welcomed its comments. If the Bar Council of Northern Ireland makes any subsequent communications to the Government, I hope that the Minister will take that into account in any future reconsiderations. Although the procedure rules will become law, there will still be the opportunity to amend them in the light of experience. Even though there have been no national security certificates since 1994 there may be some in future, and greater experience of the operation of the rules may show that amendments need to be made. I should be grateful if the Minister would confirm that any concerns that the Bar Council of Northern Ireland has as a result of the operation of the rules will taken into account.
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