BY LORD CARLILE OF BERRIEW Q.C.
2 PART II OF THE ACT: PROSCRIBED ORGANISATIONS AND THE PROSCRIBED ORGANISATIONS APPEAL COMMISSION.
41 The current list of organisations proscribed under the Act is at Annex E. I have continued to take a close interest in the operation of the regime of proscription of organisations and the appeals process. As reported before, I have received representations that proscription should form no part of the law, indeed that there should be no special criminal justice provisions targeted against politically motivated groups and crimes, with their consequence of reduced rights for participants in such activities.
42 It should be borne in mind that proscription is a common measure around the world, seen as valuable by all comparable jurisdictions.
43 I believe that there is general public acceptance that the proscription of organisations prepared to use or condone terrorism is proportionate and necessary.
44 It can be difficult for the authorities to keep track of proscribed organisations and their members. On the whole members do not carry membership cards. The task of the security services in keeping up with changes in terrorist organisational structures (in so far as any formal structures exist) is extremely difficult.
45 It appears to me that the Joint Terrorism Analysis Centre (JTAC), a multi-agency approach to information and evidence, continues to offer a good resource in the context of developing understanding of terrorist organisations. Taken as part of the Contest Strategy pursued by the control authorities, JTAC’s work provides significantly towards effective public protection.
46 The grounds of proscription were amended by Terrorism Act 2006 section 21. ‘Glorification’ of terrorism was added as a basis for proscription. It still remains to be seen how much difference this makes in practice: I tend to think that it will make little difference.
47 Section 22 has the sensible effect of preventing a group of people evading proscription by simply changing the name of their group. There have been consequential changes to secondary legislation, mainly to incorporate the procedural results of section 22.
48 Since the beginning of 2002 there have been changes. 4 organisations were added on the 1st November 2002, and a note concerning one of those 4 was added on the same date. A further 15 were added by Order on 14 October 2005, all on the basis of involvement with violent Islamist jihad. 4 more organisations were added on the 26th July 2006. No organisations have been removed during the period 2002-2006. 14 of the scheduled organisations have their origins in Northern Ireland and/or Ireland.
49 A working group exists within the government service at which all the interested officials meet and scrutinise proscriptions.
50 The group meets every 3 months and considers the proscription of organisations on a rolling basis. The Foreign and Commonwealth Office is involved in the process. They are conscious of the human rights implications of rendering unlawful membership of political organisations whose targets are well outside the UK. The prospect of further proscriptions continues, though subject to the Parliamentary affirmative resolution procedure.
51 It is important that the scrutiny of proscribed organisations should be such as to enable organisations to be removed from the list should they genuinely eschew violence as part of their policy. One organisation has complained strongly to me that such a change in their approach has not been considered fully.
52 I have received representations from various quarters to the effect that the proscription system is unfair in the way in which decisions are both made and reviewed. However, there have been very few applications for deproscription. The system of law provided is there to be used. I urge those who feel that their organisation or affiliations have been treated unfairly in the system to use it, by applying for deproscription.
53 On the basis of the material that I have seen and the representations received, I repeat the conclusions of my previous reports. It is clear to me that there are organisations that present a significant threat to the security of the state and its citizens. There are some extremely dangerous groups, with a loose but reasonably definable membership, whose aims include activities defined in section 1 of the TA2000 as terrorism and which if carried out would injure UK citizens and interests at home and/or abroad. The level of danger is well demonstrated by events around the world.
54 Subject to satisfaction with the system of law provided to safeguard organisations against arbitrary proscription and mistakes, I have concluded that the retention of proscription is a necessary and proportionate response to terrorism.
55 The inevitably confidential processes used to determine whether an organisation should be proscribed are generally efficient and fair. In this context at least, intelligence information appears to be cautious and reliable.
56 The system of law governing proscription is subject to the jurisdiction of the Proscribed Organisations Appeal Commission [POAC], established under section 5 of the TA2000. Procedural provisions are made under Schedule 3.Where proscription has taken place, the proscribed organisation or any person affected by the organisation’s proscription may apply to the Secretary of State to remove the organisation from the list contained in Schedule 2. The Secretary of State must decide within 90 days. Where an application under section 4 is refused, the applicant may appeal to POAC. By section 5(3):
“The Commission shall allow an appeal against a refusal to deproscribe an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.”
57 Schedule 3 to TA2000 gives the basic requirements for the constitution, administration and procedure of POAC. One of the three members sitting on a POAC hearing must be a current or past holder of high judicial appellate office. The other members are not judges, and are appointed by the Lord Chancellor. Perceptually it is preferable for judicial members to be serving rather than retired judges.
58 Currently before POAC is an application by what is known generally as the PMOI for deproscription. This is an internationally active Iranian opposition group based in Paris. Recent litigation before the EU Court of First Instance has led to international calls for the removal of the PMOI from proscription. I make no comment about the merits. However, having followed closely the progress of the application to POAC, I am concerned by the slowness of the proceedings. There are not many cases heard by POAC, and it is to be hoped that they can be dealt with expeditiously. Hopefully, energetic case management can ensure that no application for deproscription need take more than 6 months from application to decision, save where delays are caused by the applicant.
59 POAC sits in public in Central London, but is able to hear closed evidence in camera and with the applicant and their representatives excluded. Where an organisation’s appeal to POAC has been refused, a party to that appeal may bring a further appeal to the Court of Appeal (or its Scotland and Northern Ireland counterparts) on a question of law with the permission of POAC or the Court of Appeal. There may also be an appeal on a question of law in connection with proceedings brought before POAC under the Human Rights Act 1998, by virtue of sections 6(1) and 9 of TA2000. The procedural rules for appeals from POAC to the Court of Appeal require that the Court of Appeal must secure that information is not disclosed contrary to the interests of national security. This enables the Court of Appeal, like POAC, to exclude any party (other than the Secretary of State) and his representative from the proceedings on the appeal.
60 Pursuant to TA2000 Schedule 3 paragraph 7, special advocates are appointed by the Law Officers of the Crown “to represent the interests of an organisation or other applicant in [the] proceedings ...”. They are selected for the purposes of this legislation from advocates with special experience of administrative and public law.
61 The role of the special advocates is to represent the interests of an organisation or other applicant, but they are not instructed by or responsible to that organisation or person. Like the members of POAC, the special advocates see all the closed material. They are not permitted to disclose any part of that material to those whom they represent.
62 Thus they may face the difficult task of being asked by or on behalf of those whose interests they are instructed to serve to present facts or versions of events in relation to which there is the strongest contradictory evidence, but evidence which they are not permitted to reveal in any form. Those whose interests they represent can and in practice do have their own lawyers too, but those lawyers are excluded from closed evidence and closed sessions of POAC. Special advocates have a difficult task, and as much help as possible should be given to them in organising the material with which they have to deal. A dedicated team and office have been established to assist the special advocates, and they are now given considerable informed help. For example, in each case the Security Service has lawyers and other staff (with operational experience) who can and do act as a resource for the special advocates. In general, however, there is a shortage of fully security vetted lawyers in the government service. There is a particular shortage in the Crown Prosecution Service. This needs to be remedied.
63 The quality of those instructed as special advocates is very high indeed. I have received no criticism of them, and considerable praise.
64 Amnesty International, Liberty and other respected lobby and campaign groups take a very straightforward view of POAC and its sister organisation the Special Immigration Appeals Commission [SIAC], which deals with immigration cases in which there is a national security concern. This view is that international and European human rights law do not permit of a jurisdiction in which an individual or organisation is not told the nature of all the evidence to be deployed against them. That approach begs certain obvious questions about national security and the need for the continuing use of material gained from hard-won intelligence in relation to alleged terrorists. I do not take it as my task to determine whether there is justification for the POAC procedure, but rather to advise as to whether the procedure provided works and can be regarded as fair. The judgment of Richards J in the Kurdistan Workers’ Party Case sets out with estimable clarity the continuing foundation of legality provided by the POAC system of law. The decision of SIAC in the case of Abu Qatada, and the decision of the High Court in E v Secretary of State for the Home Department in my view show a thorough examination of the issues in such cases.
65 Sections 11-13 of the TA2000 provide for offences in relation to membership (section 11), support (section 12) and uniform (section 13) in connection with proscribed organisations. In the previous five years I have expressed concerns about the breadth of these offences.
66 The statistics appended as Annex C to this report show a restrained use of the discretion to prosecute. This group of offences was charged only 15 times 2006, a small number given the scale of the problem faced.
67 I shall continue to observe closely the application of this part of the Act. The progress of the PMOI deproscription application will make an instructive case-study.