Select Committee on Constitutional Affairs Seventh Report

3  The operation of SIAC

25. The Special Immigration Appeals Commission is a statutorily created Court of Record, presided over by a High Court Judge. Specialist expertise in immigration, intelligence and security issues is also provided by up to two other members. The Government explained its composition as follows:

    Proceedings before SIAC are heard by a panel of three members. The composition of the SIAC panel is specified in the 1997 Act, as amended by the NIA Act 2002 [Nationality, Immigration and Asylum Act 2002]:

    one member must hold or have held high judicial office

    one must be, or have been, the Chief Adjudicator or a legally qualified member of the IAT [Immigration Appeal Tribunal];

    (The second requirement will, from 4th April, be amended to require that one member must be or have been a legally qualified member of the AIT [Asylum and Immigration Tribunal].)

    The Lord Chancellor has the power to appoint one of the members of SIAC to be its Chairman. The current Chairman of SIAC is Mr Justice Ouseley. Membership of SIAC currently comprises 22 judicial members, 13 legal members and 13 lay members.[14]

26. SIAC's specialist function is to consider 'closed' (or classified) material when considering immigration appeals. Before the introduction of the Prevention of Terrorism Act 2005 it could consider three possible outcomes: exclusion; detention; and removal of citizenship. Its roles have included deciding whether:

a)  non-nationals should be excluded or deported from the United Kingdom (SIAC's original function, the 'Exclusion Function');

b)  non-nationals, who would be liable to deportation but for the likelihood of torture, inhuman, or degrading treatment in the country to which they would be returned, should be detained without trial, on the basis that the Home Secretary has reasonable grounds to suspect they are international terrorists (SIAC's function, as subsequently conferred by Part IV of Anti-terrorism, Crime and Security Act 2001, the 'Detention Function'); or

c)  nationals should be deprived of their British citizenship (if the grounds for such conclusion raise security issues) (the 'Citizenship Function').

27. The House of Lords declared the detention function of SIAC to be in breach of the European Convention on Human Rights in the case of A and others v Secretary of State for the Home Department on 16 December 2004. The Prevention of Terrorism Act 2005 has resulted as the Government's solution to this problem. SIAC will continue to exercise its exclusion and citizenship functions, which are unaffected by the House of Lords decision. Its role in respect of the detention function has been replaced by a new system of control orders under the Prevention of Terrorism Act 2005, which will be available against non-nationals and nationals alike (and so raise no special immigration issues). Hearings will be presided over by a High Court judge, who may have no specialist immigration expertise.[15]

Outcomes of SIAC Proceedings

28. Over the past eight years, SIAC has not dealt with a large number of deportation appeals. According to the Department for Constitutional Affairs, SIAC has only dealt with 11 deportation appeal cases. No person has been deported as a result of decisions which have been appealed to SIAC, despite the fact that the Home Office claims to have been "successful" in three appeals against deportation. The Department for Constitutional Affairs explained that two of the appellants were not removed as SIAC found that such removal would breach their rights under Article 3 of the European Convention on Human Rights, whilst one of the appellants was not removed because "he was no longer regarded as a threat to national security at the conclusion of the appeal". [16] One person is currently detained under the provisions of the Immigration Act 1971, pending removal.

29. Only one appeal has been received in respect of a proposed deprivation of citizenship. That case has been stayed at the appellant's request and the appellant is currently being held in custody pending trial on criminal charges.

30. Finally, the Government has identified 17 persons who were detained pursuant to powers contained in Part 4 of the Anti-terrorism, Crime and Security Act 2001. Of those it indicates that as of February 2005, two had "voluntarily departed" from the United Kingdom, two had certificates against them revoked, one was released on bail by SIAC in March 2004 and one had been granted bail in principle, subject to discussion of the conditions.[17] During the passage of the Prevention of Terrorism Bill 2005 through the Houses of Parliament, 10 of the remaining detainees were released from detention on bail, and then made subject to control orders under the new Act.

31. Given the small number of cases involving deportation and deprivation of citizenship, it would be technically possible for all cases to be removed from SIAC, and dealt with through the system transposed to the High Court to allow the use of 'controlled material'. Such a move might help to reassure those who consider that the use of 'special courts' should be avoided and those who feel the system tainted by the detention of individuals at Belmarsh and elsewhere.

Criticism of SIAC's Operation

32. There has been considerable criticism of the Commission's procedures during its eight years of operation. The UK Office of the United Nations High Commissioner for Refugees questioned whether "SIAC guarantees fair and effective procedure for determining status and protection needs".[18] It had particular concerns about,

    the limited amount of time available for appeals by detainees, the restriction on the entitlement to an oral hearing, the time limits for the Secretary of State to contest an application for bail, and the summoning of witnesses.[19]

33. The Law Society pointed to the fact that SIAC was created to review deportations, but also came to be used to review the certification of detainees under Part 4 of the Anti-terrorism, Crime and Security Act 2001 which required a careful of review of how well it was carrying out these functions.[20] JUSTICE supported this view:

    the central defect of the operation of SIAC since November 2001 has been the use of civil proceedings to determine issues relating to indefinite detention. This defect flows, however, not from SIAC's own procedures but from the government's decision to adapt SIAC from a specialist immigration tribunal to a de facto counter-terrorism court under Part 4 of ATCSA.

    While the guarantees offered by SIAC's procedures were appropriate to its original civil function (reviewing deportation decisions on national security grounds), the use of the same tribunal to judicially review the Home Secretary's decision to indefinitely detain suspected terrorists has been inadequate to the task of protecting those detainees' rights to liberty.[21]

JUSTICE accepted that there were circumstances in which Special Advocates might have to be appointed, but argued that they should not be used in cases where an individual's liberty was at stake.[22] Ms Gareth Peirce criticised the whole basis of the SIAC system:

    I am baffled as to why it was ever considered necessary […] I would say it has been an experiment that has been a disaster—not just from the point of view of those detained and their families, but for our whole system of criminal justice.[23]

34. Amnesty International questioned the extent to which SIAC could even be called an independent tribunal:

    the fact that SIAC has neither the power to make a finally determinative ruling on the lawfulness of detention, nor to substitute its own assessment of the facts for that of the primary decision maker means that it fails to meet the requirements of Article 6(1).[24]

35. In oral evidence, Mr Livio Zilli of Amnesty added,

    The [SIAC] measures were bolted on to immigration legislation and so they were called civil. They are clearly not civil because they can lead to deprivation of liberty. Clearly, all the safeguards of the criminal process should be engaged and have not been engaged. The whole SIAC/Special Advocate system is clearly a jettisoning of all the safeguards that should be afforded in the normal criminal justice system…Special Advocates and SIAC clearly do not work and cannot uphold human rights and the rule of law.[25]

36. Lord Carlile of Berriew QC, who was the independent reviewer of Sections 21-23 of the Anti-terrorism, Crime and Security Act 2001, told the Committee in written evidence that,

    I have no doubt that SIAC has performed its functions in a thorough and entirely judicial way, and to a high standard within its jurisdiction. The questioning and analysis of evidence by the Commission itself has been robust, and they have striven for fairness. Their generic and individual judgments display a very detailed knowledge, founded on evidence, of the whole picture of AQ [Al Qaeda] activities and related events.[26]

He approved of the fact that SIAC hearings were chaired by senior judges but questioned whether the other two members of the panel should not include someone who was "truly a lay person", rather than people experienced in intelligence or diplomatic service.[27]

37. The Lord Chancellor accepted there were concerns about the fairness of the operation of SIAC, but felt the right balance had been struck:

    I think the basic premise, or the great issue in relation to SIAC is obviously the fact that the subject of the proceedings does not him or herself see all of the allegations against him or her, which causes difficulty when measured against any normal, fair process, but, as Lord Carlile has said, there are cases, both in the deportation area and in the terrorist area, where you need to strike a balance between on the one hand having a fair process, or as fair as possible, and on the other making sure that the suspect does not see material that might damage national security. That is the fundamental problem in relation to the procedure. I think it is the best that can be done.[28]

38. Lord Carlile stated that SIAC had acted with "acceptable speed in all cases", although there was some initial delay.[29] On the disclosure of information, Lord Carlile stated that he was in "no doubt that national security could be at risk if certain types of evidence were revealed to the detainees".[30] This is at the heart of such procedures—the balance to be struck in adapting normal legal procedures for the use of secret material.

39. The Law Society argued that the Home Secretary's assessments should require a standard of proof applicable in civil proceedings and that SIAC should "take a robust approach to disclosure of material".[31]

40. Nine of the current 13 Special Advocates stated that the system was not one that they were approving of simply by participating in it:

    We do not consider that the existence of one case in which the detainee's appeal was allowed demonstrates, as a general proposition, that the use of Special Advocates makes it "possible… to ensure that those detained can achieve justice". Nor should it be thought that, by continuing in our positions as Special Advocates, we are impliedly warranting the fairness or value of the SIAC appeal process. We continue to discharge our functions as Special Advocates because we believe that there are occasions on which we can advance the interests of the appellants by doing so. Whether we can "ensure that those detained achieve justice" is another matter. The contribution which Special Advocates can make is, in our view, limited by a number of factors—some inherent to the role and others features of the current procedural regime.[32]

41. One former Special Advocate, Mr Ian MacDonald QC, stated that when SIAC was first introduced (in an immigration context) it was seen as a big improvement on what had gone before, because "it introduced an element of fairness which had previously been lacking".[33] Once its powers were extended into Part 4 powers under the Anti-terrorism, Crime and Security Act 2001 he felt his participation gave a "fig-leaf of respectability and legitimacy to a process which [he] found odious" and following the House of Lords judgment of December 2004 he resigned.[34] A current Special Advocate, Mr Neil Garnham QC, also saw the SIAC system as an improvement on what had preceded it but continued to serve as a Special Advocate despite the extension of the system:

    I remain content to serve as a Special Advocate in relation to [Part 4] for the simple reason that I take the view, as some but not all others do, that I am more likely to do good by being in there and being involved than by not being involved, although I respect the view of others who take a contrary view.[35]

42. The Government argued that SIAC procedures were fully compliant with the European Convention on Human Rights:

    these procedures provide an appellant with a fair and effective means of challenging decisions while ensuring that sensitive information is protected from disclosure, and that the composition of SIAC provides it with the expertise necessary both to assess intelligence material, and to consider and decide appeals within its jurisdiction. Immigration and nationality matters do not fall under the head of civil rights and obligations, and the provisions of Article 6 of the ECHR therefore do not apply. However, if they did, the Government considers that SIAC's present procedures fully meet the requirements of that Article as they relate to civil procedures.[36]

43. Many of the most pressing issues in SIAC procedures surround the use of Special Advocates, to which we now turn.

14   Ev 48, paras 13 and 14 Back

15   Under the Prevention of Terrorism Act 2005 there are provisions for the High Court to appoint specialists to assist them. See Q 125 Back

16   Ev 52 Back

17   See Back

18   Ev 41 Back

19   Ev 41-42 Back

20   Ev 42  Back

21   Ev 62, paras 5 and 7 Back

22   Ev 64, para 20 Back

23   Q 68 Back

24   Ev 45, para 6 Back

25   Q 89 Back

26   Ev 38, para 10. See also M v Secretary of State for Home Department [2004] EWCA Civ 324, para 34, per Lord Woolf of Barnes CJ Back

27   Ev 38 para 13 Back

28   Q 96 Back

29   Ev 38, para 14 Back

30   Ev 39, para 17 Back

31   Ev 42 Back

32   Ev 54-55, para 7 Back

33   Q 1 Back

34   Q 1 Back

35   Q 4 Back

36   Ev 50, para 25 Back

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