Select Committee on Constitutional Affairs Seventh Report


The Special Immigration Appeals Commission (SIAC) was created under the Special Immigration Appeals Commission Act 1997, and its operation was amended by the Anti-terrorism, Crime and Security Act 2001. This legislation introduced the use of Special Advocates—security-cleared lawyers—for cases involving security-classified materials. Under the Prevention of Terrorism Act 2005 the use of Special Advocate procedures will be transferred to the High Court for cases involving control orders. This report considers in detail the use of Special Advocates and the lessons learned from the experience of SIAC's operation for eight years. Other aspects of the 2005 Act were beyond the scope of this inquiry.

We have concluded that there are a number of defects with the Special Advocate system as it operated through the Special Immigration Appeals Commission, particularly in relation to support provided to Special Advocates and the disclosure of exculpatory material. During the course of our inquiry, the Department for Constitutional Affairs and the Attorney General gave us assurances that both these aspects would be addressed in response to the concerns which we highlighted. The Attorney General has now given an undertaking that some support for Special Advocates will be provided (although we believe he could go further), and the Lord Chancellor brought forward an amendment to the Schedule of the Prevention of Terrorism Act 2005 in relation to the disclosure of exculpatory material.

We have also concluded that there are a number of improvements which could be made to improve the fairness of the Special Advocate system as implemented in the 2005 Act. Among these would be the establishment of an Office of the Special Advocates, to ensure that the Special Advocates get appropriate expert support and facilities. We further believe that additional steps should be taken to ensure that Special Advocates are better able to communicate with the appellant, with special arrangements for doing so after they have seen cleared material, and that appellants are offered, where practical, a choice of Special Advocate from a security-cleared pool.

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