I am grateful to the noble Lord for his observations and for his acceptance, for the most part, of what lies behind these rules. He makes a valuable point in asking whether there could be a perverse incentive for somebody to claim that there were human rights violations and therefore get themselves within SIAC. That is, with respect, a little unlikely. In fact, the purport of the regulations is to embrace those cases where national security is an issue but the person is not relying on human rights grounds. Classically, that would happen on the grounds of Article 3 or Article 8 of the European convention. It has to fall within SIAC because of the national security arguments; it is not a simple incantation of a human-rights based challenge.
I caused some inquiries to be made as to precisely what cases might come within the regulation when somebody was not claiming human rights grounds and would therefore be covered by this measure. I was given to understand that the likely applicant would be someone who was before the court in relation to espionage, who would not want to rely ex hypothesi on Articles 3 or 8 but might want to challenge the underlying assertion that they were, in effect, a spy. In that way, they would still come within the national security ambit of SIAC, involving all the closed material procedures with which we are familiar—the special advocates and well travelled range of things—and not rely on human rights matters.
The noble Lord asked about costs. I do not believe that the human rights element of itself would cause additional costs. In relation to the rules amendment costs, there are minimal costs on the work of drafting and laying the amendment rules and no costs to the SIAC administrator or Her Majesty’s Courts and
Tribunals Service in introducing this new statutory review. They already deal with other statutory reviews, so forms, guidance and IT are not affected. The bail amendments will reduce costs for SIAC, because they will save hearing time from being used on unmeritorious applications.
The question of material changes is a fairly well travelled doctrine in terms of bail applications generally, and judges will be familiar with that. It involves something material, as the adjective suggests, not just a minor change that warrants an application—something that may have an effect on personal circumstances, such as their address, giving the court grounds for thinking that the risk was somewhat less than originally appreciated. It might be a matter for SIAC to give further guidance, but of course material change of circumstance is the sort of thing that courts are used to addressing in a number of circumstances. Indeed, the noble Lord may be familiar with it in his guise as a magistrate, with frequent bail applications—although I may be wrong in thinking that he is a magistrate. It might be something that affects the range of considerations which the tribunal thought important when the previous bail application was decided. I would be reluctant to specify precisely what might constitute material circumstances, but it does not mean de minimis matters, things that do not really alter the basis of the application. It would be a matter for the court on the particular facts of the case to decide whether there had been a material change.
I hope that, with those assurances, the Committee is content that the rules should proceed, and I beg to move.