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 
