Examination of Witness (Questions 80-88)
LORD CARLILE
OF BERRIEW
QC
TUESDAY 11 MARCH 2003
80. But there are some enemies in our midst?
(Lord Carlile of Berriew) There are enemies in our
midst.
David Winnick: Thank you very much.
Chairman
81. Just finally, Lord Carlile, you suggested
some less intrusive alternatives to custody should be tried, exclusion
orders, registration, restraint orders, or electronic tagging.
Can you expand on the reasons for those?
(Lord Carlile of Berriew) Yes. I was responding to
some remarks by the very distinguished Law Professor, Professor
Clive Walker, who has certainly written the standard working textbook
on the terrorism legislation; he has suggested that there may
be less intrusive forms of restriction, like house arrest, tagging,
and so on. It was not my intention to give the impression that
I was recommending they be used, I was recommending that they
be investigated to see if they can be used. Locking people up
without charge is a heavy-handed thing to do, by any standards,
and if, for some people, there are alternatives then certainly
we should look into them. I had particularly in mind people who
may have acted very irresponsibly around influencing young people
in mosques, because there is no doubt that there has been some
very inappropriate influence used in mosques, who, on further
investigation, might seem to be foolish rather than malignant,
and some alternatives might be available. And I use it only as
an example to deal with an issue of that kind, whilst in no way
affecting something which I would hold very important, their right
to free speech without breaking the law, and their right to freedom
of religion, freedom of worship, without breaking the law, which
are fundamentals, I am sure, to all of us round this table.
82. Have you had any feedback from the Home
Office as to how seriously those alternatives are being considered?
(Lord Carlile of Berriew) I think something was said
about it in the debate in the House of Commons, very briefly,
on the basis that, "Well, we'll consider anything."
I am sure the Home Office does not like locking people up without
charge, they find it a painful process, it is immensely time-consuming,
it uses a huge amount of resources, and they have to pay people
like me to review it; so it is not a welcome process, by any means.
83. Do the Home Office respond point by point
to recommendations that you make, in the way that they do to a
select committee?
(Lord Carlile of Berriew) Yes.
84. You mentioned that it was not the practice
of the Special Advocates, necessarily, to meet the appellant whose
interests they represent. Now, for those of us who are non-lawyers,
that seems a very strange way of going about things. Why is that?
(Lord Carlile of Berriew) It is pretty strange to
lawyers as well. It goes further than you are saying, Chairman,
the Special Advocates are prohibited by law from speaking to the
people whose interests they represent once they have seen any
closed material. The rationale for that is that one may be dealing
with terrorists who are so skilled and subtle that almost whatever
you say to them will enter their understanding in a very lateral
way, and they will be able to deduce, for example, that certain
places are being watched, or certain communications are being
listened to. On the other hand, of course, the fact that they
have been locked up and certificated might just suggest to them
that certain places are being watched and certain conversations
are being listened to. My own view is that, the Special Advocates,
who are chosen very carefully, not on a political basis, indeed,
they are a very interesting range of lawyers, many of them who
are established civil libertarian lawyers, with years of trying
to kick the Government, occasionally, in the Administrative Court,
I believe that they should be given a little bit more flexibility.
Certainly, I think that they should be able to go to SIAC, or
maybe to the Government, and say, "Look, I really would like
to go to see this chap, because I want to give him the following
advice. I believe that if I give him that advice we'll have a
far more realistic hearing, he'll contest fewer facts and will
go for the issues that really matter, what are his beliefs, what
are his purposes." And my view is that if a Special Advocate
were allowed to do that, possibly accompanied by some appropriate
person, then it would make the system more efficient. The Special
Advocate system is evolving, however, and I hope that that evolution
will be allowed to continue.
85. How do they communicate with their clients
then, in writing?
(Lord Carlile of Berriew) They do not communicate
with their clients very much at all. Indeed, I am not aware of
any significant level of communication with the "client".
Certainly, there are communications with the private lawyers for
the detainee, the detainees always have their own lawyers, their
own solicitors, their own barristers; of course, their own barristers
do not see the closed material. So there is plenty of room for
an iterative process between the Special Advocate and the conventional
lawyers, but I would like to see the Special Advocate able to
bypass the conventional lawyers in certain circumstances.
86. How do you become a Special Advocate?
(Lord Carlile of Berriew) You are asked by the Law
Officers, as I understand it. To be fair to the Government, they
have appointed people who are, as I think I was trying to say
earlier, established judicial review lawyers, with very, very
good records of being prepared to challenge Government, and there
is not a patsy among them.
87. No; they have got street credibility. You
recommended some training for the Special Advocate, but is there
a need for a separate code of conduct which addresses their unique
professional difficulties?
(Lord Carlile of Berriew) Of course, they talk to
one another, barristers do, all the time, it is a very collegiate
profession. A code of conduct, I do not know that a code of conduct
at this stage necessarily is going to be helpful. Barristers who
talk to one another all the time are a bit resistant to training,
but those of us who attend Judicial Studies Board training courses,
because we have to, as part-time judges, and I have been doing
that for a long time now, find that, although we go along grumbling
that we are going to be told the obvious, the obvious is not always
as obvious as you think it is, and the training can be extremely
beneficial. I would like to see a modest formalisation of the
Special Advocate system, so that they were more formally collegiate
and were able to have some training from outside, with an input
from, I mentioned one academic, there are others, Professor Conor
Gearty is another very distinguished academic, who has got some
very radical and interesting ideas to offer on these subjects.
For that kind of training to be carried out in a slightly more
formal environment, even though he is a member of the chambers
of some of the Special Advocates, I think would be an advantage.
88. Lord Carlile, you have been extremely helpful.
Thank you very much for coming, and we will follow up some of
the points that you have made today.
(Lord Carlile of Berriew) Thank you very much, Chairman.
I am very grateful to the Committee for its courtesy and consideration.
Chairman: Thank you for coming.
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