Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

Lord Lester of Herne Hill Excerpts

Tuesday 19th November 2013 Grand Committee

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, the amendment provides for the extension of the current SIAC rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act as a result of the Justice and Security Act 2013. This enables the Home Secretary to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on sensitive information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.

The Special Immigration Appeals Commission, or SIAC, was set up under the Special Immigration Appeals Commission Act 1997. It hears immigration and asylum appeals involving national security issues and/or sensitive information which should not be made public—for instance, cases where intelligence is part of the evidence and the material cannot be released to the appellant, or his representatives, for fear of compromising sources or the national security of the UK. It has heard appeals under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists, and it currently hears appeals against deprivation of citizenship.

The Justice and Security Act 2013, which commenced in June this year, contained a number of provisions designed to control the disclosure, during litigation, of material which if released could be damaging to our national security. Section 15 of the Act amends the Special Immigration Appeals Commission Act 1997 to ensure that, where the Home Secretary excludes someone from the United Kingdom or refuses to naturalise them as a British citizen on the basis of sensitive material, the appropriate place for that decision to be challenged should be the Special Immigration Appeals Commission.

Previously, any individual in that situation could apply to the High Court to set aside the decision. This was a far from satisfactory arrangement for two reasons. First, prior to the Justice and Security Act 2013, the High Court had no facility for closed material proceedings, and even now it has only limited provision for them. Secondly, SIAC is the tribunal with the greatest expertise in considering sensitive national security cases, as well as having expertise in immigration matters.

Parliament therefore deemed that challenges to exclusions or citizenship decisions would be best heard by SIAC. In order for SIAC to entertain these new challenges, its procedure rules must first be amended, and that is what we must turn our attention to now.

The rules that sit before us have been produced on behalf of the Lord Chancellor, following a short period of consultation with several of the parties who best know SIAC. The list of consultees includes the Law Society, the Bar Council and indeed the sitting chair of SIAC.

In the main, the amendments that these rules make simply confirm that all the existing rules, covering the kinds of appeal that SIAC has heard since its inception in 1997, now apply to the review of exclusion and naturalisation decisions. These are purely administrative changes which establish the guidelines relating to time limits for seeking a review, submission of forms and so on.

However, the rules have a number of substantial effects. First, although SIAC uses closed material proceedings regularly, the SIAC Act 1997 allows this by providing that rules may make provision for closed material proceedings. Therefore, until these rules are passed, it is difficult for SIAC fully to consider applications for review of exclusion or citizenship decisions.

Secondly, these rules establish the obligations upon the Home Secretary when disclosing material following an application for a review of an exclusion or naturalisation decision. These disclosure obligations are slightly different from those attached to a conventional appeal, and new Rule 10B makes that distinction. The difference derives from the fact that applications for review are to be decided on the principles applicable in an application for judicial review, and therefore the duty of candour represents the correct approach to disclosure. By contrast, appeals to SIAC are merits-based. SIAC is not simply reviewing the Home Secretary’s decision; it is making its own. Therefore, in appeals, a fuller disclosure process is required.

Thirdly, your Lordships may wish to note Rule 29, which amends 2003’s Rule 40 to give the commission the power, where appropriate, to reinstate an appeal or application for review which had previously been struck out. This, I hope the Committee will agree, will benefit the interests of justice by ensuring that an appellant or claimant need not be punished for a failure to comply with SIAC’s rules when the failure is for a reason outside their control. Indeed, this amendment results from a judicial suggestion made by the president of SIAC in a recent judgment in a case known as R1—see paragraph 28 of the judgment in R1 dated 21 May 2013, which can be found on SIAC’s website.

There is a particular need to affirm these rules without delay, as until they take effect the new cases which SIAC will hear cannot be progressed to conclusion. That affects the 60 or so claimants whose pre-existing High Court challenges will be certified and terminated under the Justice and Security Act’s transitional powers but whose applications to SIAC cannot be fully considered without these new rules. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, this course is important and sensitive. I would like to give a little background to how SIAC came to be set up and involved in this way in this procedure. It happened because of a case called Chahal. Mr Chahal was a Sikh and suspected terrorist being sent back to India. Under the old three wise men procedure there was no proper judicial process to decide whether he should be sent back, so he brought a case in Strasbourg. The problem was how you reconcile justice and the needs of national security. In the Chahal case, the various NGOs that intervened mentioned that there was a Canadian process that allowed national security and justice to be reconciled by a procedure rather similar to what the House is now considering.

I then did two cases from the bad old days, one in which the then Secretary of State prevented women in the Royal Ulster Constabulary part-time reserve having their sex discrimination cases determined in Belfast on the basis that it involved national security and that in no circumstances could his certificate be set aside. The second one involved alleged Catholic discrimination in Northern Ireland, where another Secretary of State again sought to prevent the applicants having the merits of their cases reviewed.

The SIAC procedure of 1997 was Parliament’s decision at the time to apply something like the Canadian procedure to enable national security and justice to be properly weighed. I have one experience of SIAC from the distant past, when I represented a group of suspected terrorists, who later won their case—not through me—in Luxembourg. My experience then was very unhappy. I and they did not consider that the way it was dealt with by SIAC felt fair. But that was a long time ago and I am sure that lessons were learnt a long time ago. For my part, we are now concerned with not the controversial matters that plagued the House for so long when considering the Justice and Security Bill, but a perfectly sensible grafting on to the existing SIAC procedure of matters that clearly belong within SIAC under those procedures and nowhere else.

I recognise the compromises that are struck in these rules, one of which is where the Home Secretary—the Minister—decides to object to the disclosure of information to the claimant. My understanding is that there can then be a special advocate procedure to deal with that. That is a compromise that I reluctantly accept has to apply in this context. I hope, having said all that, that it provides a little more context to what we are talking about. For my part, I support the Motion before the Committee.

[Lord Beecham (Lab)]

Once again, there are three of us in this marriage, to quote a much more distinguished person.

I am grateful to the noble Lord, Lord Lester, for his long contribution to the evolution of the law in this area and the conduct of the debate. Of course, we spent a considerable time debating closed material procedures when we were engaged in a more recent piece of legislation. It is perhaps worth remembering that the procedures under SIAC are rather more stringent in terms of the criteria that a tribunal can apply, since the Justice and Security Act requirement is to protect matters of national security, but SIAC’s remit is wider. It has the potential of ruling out material that is contrary not only to the interests of national security but the international relations of the United Kingdom, the detection and prevention of crime or in any other circumstance where disclosure is likely to harm the public interest. That is a much wider range, but this is a rather separate case. We are not at the moment disputing that.

However, the Minister referred to consultation about the proposals. I make it clear that we are not opposing the proposals. He cited the special advocates, the Law Society, the Bar Council and the chairman of SIAC as having been consulted. He did not mention that the Home Office, the Treasury Solicitor, the security and intelligence agencies and the Foreign and Commonwealth Office were also consulted, which is perfectly proper. But can he say if anyone else was consulted? Were organisations concerned with representing people in this situation consulted? Were voluntary organisations such as Liberty or Justice for All consulted? Were any bodies or organisations working with those involved in immigration matters consulted, such as the association of immigration lawyers? It would be interesting to know whether the consultation was confined to those who might be expected to have few, if any, reservations about it as opposed to those who might want to raise other issues.

For my part, having had some communication from the association of immigration lawyers, there is one matter that I would be grateful for some elucidation about. There is a concern that the transitional provisions in the rules could allow a case currently progressing in the High Court as a judicial review to be hijacked and taken to the commission. I have no idea whether there is any substance in that fear. Will the Minister—perhaps not at this moment—clarify whether that is a possibility and, if it is a possibility, how likely it is and how many current cases might be caught? It would be a matter of concern if it is a possibility, although, of course, it may not be and I am perfectly content to await the Minister’s response on that.

Another possibility that has been raised is that perhaps some matters have been held back from being listed for hearing on a judicial review, if indeed it is possible that the problem might have arisen. Again, an assurance that that has not happened would be welcome. Having made all the points that I want to make, I support the order.