Select Committee on Constitutional Affairs Seventh Report

5  Transporting SIAC and the Special Advocate System into the High Court

67. Parliament has accepted the use of Special Advocates and the Prevention of Terrorism Act 2005 inherits much of the SIAC system including their use. We have therefore taken this as our starting point, but the issue remains controversial. Ms Gareth Peirce, a solicitor acting for a number of the detainees who have appeared before SIAC, told the Committee that the system was:

    imposing upon the Special Advocates a duty of constant soul-searching and indeed morality which should not be being placed upon them any more than it should on the judges in SIAC […] if you are at the receiving end of this kind of accusation, it is wrong in law, it is wrong in fact, and it is ridiculous that that person should never be able to tackle it himself, and that is not just literally a recipe for madness, but it is the destruction of very tried and tested methodology in the criminal process.[55]

68. In addition to the issue of principle, a number of serious reservations about the practice were raised with us in evidence, including a submission from nine of the current 13 Special Advocates. Concerns raised included the question of the appointment of Special Advocates, the qualification and areas of practice of Special Advocates (who have expertise concentrated in the fields of public and immigration law, rather than criminal law), the absence of training and co-ordination and the fact that the pool of Special Advocates may become exhausted—each SIAC appeal can require a fresh security-cleared Special Advocate who has not been exposed to the closed material. Lord Carlile, who was the independent reviewer of the Anti-terrorism, Crime and Security Act 2001, noted that,

    The special advocate system was introduced in the hope that security-cleared, skilled lawyers with complete disclosure of closed as well as open material would sufficiently protect the interests of the detainees to ensure total fairness of the proceedings. The reasons for the resignations recently of two of the special advocates, Ian McDonald and Rick Scannell, plainly dent any confidence that the special advocates have fulfilled their purpose. The views I have heard and received have not been unanimous with theirs, but it probably represents the conclusion of the majority of the appointed special advocates.[56]

The Appointment of Special Advocates

69. The appointment of Special Advocates by the Law Officers of the Government (the Attorney General and Solicitor General) has also raised comment. Not only does the subject of the hearing have no choice as to who will represent him, but the Attorney General also acts for the Government which is bringing the case against the appellant. The Attorney General told us in evidence that he had not specifically appeared in the individual (as opposed to generic) appeals.

70. The appellants can object to the named individual Special Advocate if they can cite good reason why they should not act on their behalf. In oral evidence one former and two current Special Advocates told us that in practice it did not matter to them who appointed them, but what did matter was the inability of appellants to choose their own advocate from a pool or list.[58] As nine Special Advocates put it in their joint written submission to us:

    the Special Advocates are selected at the discretion of a Law Officer who is a member of the executive which has authorised his detention. In these circumstances, it would not be surprising if the appellant had little or no confidence in his Special Advocates. There is no reason of principle why the appellant could not be allowed to choose his Special Advocate(s) from a panel of security-cleared advocates.[59]

71. To date only 16 lawyers have been appointed Special Advocates in SIAC cases and 13 are currently active. With the proposed extension of their use into anti-terrorism control orders, concerns have been expressed about the size, composition, and selection of the pool of available Special Advocates. The Department for Constitutional Affairs set out the selection process for Special Advocates as follows:

    The Attorney General maintains three civil panels of junior counsel to the Crown who are approved to undertake Government work, according to their experience and seniority. Competition to become junior counsel to the Crown is strong and appointment to the panel is by way of an open, fair and transparent process.

    From these panels, Treasury Solicitor's Department recommends to the Attorney General a potential list of lawyers with appropriate experience.

    Following approval by the Attorney General, lawyers are subject to full developed security vetting (DV), before they are selected to join the 'pool' of DV counsel.

    Lawyers in the 'pool' may be appointed to act for either, the Secretary of State, or as Special Advocates, in any given case, subject to there being no conflict of interest between cases.[60]

We learned that in fact not all of the lawyers appointed Special Advocates have actually been members of the civil panels of junior counsel to the Crown, as stated in the Department for Constitutional Affairs submission, with a number of leading members of the Bar considered "to have good 'claimant' experience and expertise", also appointed.[61]

72. The Attorney General described how the process originally evolved:

    the system grew […] out of what the European Court of Human Rights said in the Chahal case, when they disapproved of the then system for dealing with removals on non-conducive grounds—the three wise men system—and so the Special Immigration Appeals Commission was set up and these procedures were put in place. At that stage, so I understand, the Treasury Solicitor identified a number of people who were thought appropriate from experience, ability and integrity to do this work. It was put to one of my predecessors as a list, he approved that list and then those people had to be developed vetted. The procedure then is that on an occasion when a Special Advocate needs to be appointed the Treasury Solicitor makes a recommendation to the Law Officers and that recommendation is considered by the Law Officers […] it was the Solicitor General who approved the recommendations.[62]

73. The nine current Special Advocates who jointly submitted evidence to us stated that the pool could and should be widened:

    From our experience of acting as Special Advocates, we suggest that the principal requirement for a Special Advocate in proceedings before SIAC is the ability to absorb and analyse information that may be in voluminous documents, and to cross-examine effectively on the basis of this. Such abilities are not confined to public law practitioners. While public law issues do sometimes arise in relation to closed material, the nature of the work may also require skills which those such as criminal lawyers or those with experience of handling witnesses in civil cases, would be equally if not better qualified to perform.[63]

Even under the current SIAC system the pool of advocates appears to have become close to being exhausted quite quickly according a number of our witnesses.[64] Mr Ian MacDonald QC explained in oral evidence that he had been appointed to represent an additional appellant in a linked case following sight of closed material in other cases and as a result of this was precluded from having any contact with that appellant—a undesirable consequence of what appears to Mr MacDonald to have been to an insufficient number of Special Advocates.[65]

74. The Lord Chancellor accepted this particular criticism,

    I think there is a significant issue about who, as it were, chooses them in relation to an individual case. I can see a problem about the subject, him or herself, not being able to choose the Special Advocate from the list that they want. I appreciate there are great difficulties about knowing who to choose, but I think there is a significant point about the person whose case it is being able to make the choice from a list as to who the Special Advocate is, and although there might be conflicts of interest points that arise right across the law, ultimately the choice from the list, subject to conflict of interest, should be made by the person who is the subject of the proceedings.[66]

He gave an undertaking that improvements in the system would be in place within "a couple of months".[67] We recommend that an appropriately sized pool of Special Advocates, from which appellants can pick their representation, should be established as soon as is practical and expect the government to keep to its proposed timetable.

Problems with the use of Special Advocates

75. Other problem areas with the Special Advocate system that were highlighted to us included the fact that Special Advocates currently lack support, since they do not benefit from a security-cleared solicitor, and are not able to call on expert evidence. Mr Neil Garnham QC and Mr Martin Chamberlain (both Special Advocates) explained that they were substantially hindered when trying to conduct factual (as opposed to legal) research.

76. As Mr Garnham put it,

77. Mr Garnham also spelled out the extreme restrictions placed on the advocates, who were not even allowed to conduct internet searches on persons named in the controlled material, in order to find out about their background. Because there is no support network for the advocate, it is also impossible to delegate such tasks to security-cleared individuals who could have experience of that type of work. Lord Carlile supported the idea of providing greater assistance to the Special Advocates by appointing a security-cleared case assistant from the security service to assist each of them.[69] He also favoured training for Special Advocates under the supervision of the Judicial Studies Board.

78. In response, the Department for Constitutional Affairs provided us with a note on the day that the Lord Chancellor appeared before us, indicating that it was moving to improve the system. It set out what the Department later described as "principles" that will be subject to further work and covered the choice and pool of Special Advocates, as well as some support for Special Advocates. The Lord Chancellor accepted many of the criticisms that were raised with us concerning the procedures surrounding aspects of the Special Advocate system:

    I think the points that the Special Advocates have made have huge force. I think there are a number of areas where you can make improvements. First of all, we need to increase the size of the pool of Special Advocates so that there are Special Advocates, for example, who have wide experience of cross examination, whether civil or criminal. Secondly, we need to give the Special Advocates proper support […] A critical aspect of that is that, unlike any other case, they do not have an instructing solicitor who is engaged with them on the process. We need to set up, I think probably within the Treasury Solicitor's Department, a number of treasury solicitors who are development vetted, who are able to see the closed material, who are able to provide the advocates with assistance in relation to it.[70]

    I think the Special Advocates need training; I think the instructing solicitor needs training […] they need to have some feel for what happens in SIAC. They need to know what decisions SIAC has made in the past. They need to have access to a database of decisions that have been made by SIAC […] they have to be able to say, "We need help of an expert nature in this area or that area", so that they can consider whether or not evidence should be put before SIAC about a particular issue. They have got to be better supported, there has got to be a greater choice, they have got to have access to help that allows them to operate like an advocate in a conventional sense, subject, of course, to the necessary limitation that once they have seen the closed material they cannot speak to the suspect.[71]

79. When we took evidence from the Attorney General shortly after, he was specifically asked why these concerns had not been addressed before, since they had been in the public domain for some time. He replied that:

    I have to say that I was not aware until I saw the memorandum of evidence that they [the Special Advocates] put into this Committee of the detail of the concerns that they had about the procedure. As soon as I saw that it seemed to me important to address that. So that is in part the answer to the question. But, having seen that, and having seen what they have said to this Committee I thought it right to investigate what improvements could be made. I asked for that to be done and I saw them yesterday. I just make one point because at the time of the resignation of one or two of them there were suggestions in the newspapers that I had been speaking to the Special Advocates, which was not the case at all—I did not speak to any of them.

80. A number of the Special Advocates concerns were being publicly aired at conferences and in legal journals and more informally for some time in advance of this inquiry.[72] As a result we are perplexed that the detail of the concerns has only just been recognised by the Attorney General. As a consequence of the evidence that has emerged during our inquiry the Attorney General also decided to meet some Special Advocates (nine out of the current 13) for the first time—the day before he was due to give evidence to this Committee.[73] The Attorney General described the meeting as "an open discussion".[74]

81. We urge the Attorney General and the Lord Chancellor to act swiftly in improving the system in consultation with the Special Advocates themselves and other lawyers experienced in SIAC cases.

82. The promised improvements are welcome and will no doubt aid the Special Advocates in the execution of their work. Nonetheless, there are also issues of principle which remain controversial. These include the standard of proof to be used to impose orders, the disclosure of exculpatory evidence to appellants and the constraints on judges when considering the proportionality of orders imposed upon appellants.


83. Lord Carlile felt that the Special Advocates "should have a closer relationship with those whose interest they represent" and if under appropriate regulation could "see no significant harm in developing the system".[75] The Lord Chancellor was not so sure on this point:

    [Special Advocates] plainly owe a duty to the person who is the subject matter of the proceedings. They are not in the position of an ordinary advocate because of the limited contact they can have with the person on whose behalf they are making submissions. We need to think about how we make them accountable, but it is very, very difficult.[76]

Critically, under SIAC once the closed material had been shown to the Special Advocate they could no longer have contact with the person they were representing—a situation which will be transferred into hearings under the new control orders regime under the Prevention of Terrorism Act 2005:

    The position is, and it will be the same in the future, the Special Advocate can have contact with the subject matter of the proceedings before he, the Special Advocate, sees the closed material. After he or she, the Special Advocate, has seen the closed material he cannot have direct contact with the subject matter of the proceedings.[77]

84. The Permanent Secretary at the Department for Constitutional Affairs, Mr Alex Allan, told the Committee that in fact contact was permitted and suggested that had occurred on a number of occasions:

    I believe the arrangements at the moment are that the Special Advocate can communicate with the appellant or his legal representative with the permission of SIAC and subject to any representations made by the Home Office, and that has been done on a number of occasions.[78]

This was not the interpretation of the nine Special Advocates in their joint written evidence to the Committee, who pointed out the limited nature of any 'contact' in practice:

    There is in fact no contact between the Special Advocates and the appellant's chosen representatives in relation to the closed case […] Under the SIAC (Procedure) Rules 2003, Special Advocates are permitted to communicate with the appellant and his representatives only before they are shown the closed material…Once the Special Advocates have seen the closed material, they are precluded by r. 36(2) from discussing the case with any other person. Although SIAC itself has power under r. 36(4) to give directions authorising communication in a particular case, this power is in practice almost never used, not least because any request for a direction authorising communication must be notified to the Secretary of State. So, the Special Advocate can communicate with the appellant's lawyers only if the precise form of the communication has been approved by his opponent in the proceedings. Such a requirement precludes communication even on matters of pure legal strategy (i.e. matters unrelated to the particular factual sensitivities of a case).[79]

85. This matters, because in many cases only the appellant may be aware of information that may prove his innocence, but is unable to provide it because he is not able to have sight or knowledge of any allegations based solely on closed material. The Special Advocate may also wish to discuss some element of legal strategy with the appellant's representatives.

86. We recommend that the Government reconsider its position on the question of contact between appellant and Special Advocate following the disclosure of closed material. It should not be impossible to construct appropriate safeguards to ensure national security in such circumstances and this would go a long way to improve the fairness of the Special Advocate system.


87. The Special Advocates also raised with us issues concerned with disclosure, the standard of proof used in SIAC cases and the approach to unproven allegations. Mr Martin Chamberlain summarised it thus,

    The third matter is deference. At the moment SIAC defers to a very great degree […] to the views of the Executive as put forward by the Security Service witnesses that it has before it. The trouble is, of course, that in relation to the closed material the Security Service witnesses are treated as experts and there is no expert on the other side. One has an expert assessment which is treated just as a judge would treat a doctor, surveyor, engineer or an expert witness, yet there is not an expert witness on the other side to give a countervailing view. That is simply a feature of the way SIAC works.[81]

These concerns were echoed by the Law Society.[82] The Lord Chancellor stated categorically that the rules prescribe that the State must not withhold any exculpatory evidence.[83]

88. We understand that during some of the first round of individual appeals under the Anti-terrorism, Crime and Security Act 2001, the Home Secretary accepted the practice of reviewing material with a view to identifying exculpatory material. It is unclear whether there was any statutory 'duty' to do so; and, if so, where any such duty was stated. We were unable to identify any provision in the previous legislation, or the SIAC Procedure Rules, indicating such a duty.

89. Under the previous system, there was apparently no over-riding 'interests of justice test' available to SIAC in regulating these proceedings. Even if such a duty had been implied, it is difficult to see how it could have been policed effectively. It would surely depend on the views of the intelligence services officer as to what appears to be exculpatory, rather than the Special Advocate who is representing the applicant and who would be mindful of fairness and the interests of justice.

90. Furthermore, even if exculpatory material was disclosed to SIAC, which then ruled that the material could be disclosed to the applicant and his advisers without damage to the national interest, there was no power to enforce such a ruling if the Home Secretary objected to it under Rule 38(7) of the SIAC 2003 Rules.

91. The previous rules appeared to mean that where the Home Secretary lost a public interest ruling at SIAC, he could continue to proceed with the certification and detention, relying on other inculpatory material. We understand that he was under no compulsion to withdraw the certificate when he was not willing to accept disclosure, which prevented SIAC from having any sanction under the Rules.

92. The Attorney General appeared to be unaware of these questions in oral evidence and did not address them in a written follow-up, although he did say:

    […] the Secretary of State is under a public law duty to act fairly in the proceedings. The disclosure of exculpatory material is not dealt with explicitly in the 1997 Act or the 2003 Rules. However, procedures are in place to ensure that the evidence is assembled in a balanced and non-partisan manner. These include a mechanism for dealing with material on which the Secretary of State does not propose to rely. This provides for all unused material concerning the appellant to be checked by the Secretary of State's counsel to see whether it includes exculpatory material. Any such material is disclosed to the Special Advocate in the first instance. There follows further consideration by the Special Advocate and SIAC as to whether any of the exculpatory material should be made open and disclosed to the appellant. Even where unused material remains completely closed, SIAC will be aware of the position and can ultimately decide on the fairness of the proceedings. As in all proceedings—not just those before SIAC—the process of disclosure inevitably relies on the integrity and professionalism of those operating it.[84]

This did not deal with the problem that the Home Secretary's counsel would not necessarily approach the evidence in the same way as a defence lawyer would, seeking to identify any linkages that could prove exculpatory. Furthermore, those doing the detailed assessments of closed material would often be intelligence officers who are not trained to assess evidence with exculpation in mind but rather as part of an intelligence assessment process—very different to the construction of a legal defence. In its Generic Judgment of October 2003, SIAC highlighted some of the problems associated with the existing system of relying on Security Service 'assessments':

    […] because the Security Service deal in suspicion, belief, and risk evaluation, rather than proof as a court would normally expect, lines of inquiry had not always been pursued in a way which might confirm or compound those suspicions. At times, both [witnesses] were a little quick to attribute a conclusion or inference to "assessment", which might have implied that there was more information or analysis than we had seen, but in fact was no more than a simple judgment or inference.[85]

93. The suggestion by Lord Carlile, noted above in para 77, that Special Advocates be provided with seconded and specially trained intelligence officers, is one which could offer additional safeguards as it would equip the Special Advocates with support that is currently only available to Home Secretary. The Special Advocates themselves have indicated that they need to have access to a range of independent experts, including those with specific regional or country expertise, scientific and technical experts and translators.[86]

94. In oral evidence on 1 March 2005 (during Parliamentary consideration of the Prevention of Terrorism Bill), we raised concerns about disclosure, specifically the Home Secretary's duty to disclose closed potentially exculpatory material to the Special Advocate [see para 87]. The Lord Chancellor wrote to us on 16 March, explaining that, as a result of the Committee's intervention, a substantial amendment to the disclosure rules was included in the Schedule of the Prevention of Terrorism Act 2005. He explained that:

    We listened to the concerns of the Committee and others on this issue and we responded by moving an amendment to the Schedule of the Bill. Paragraph 4(3) of the Schedule to the Act requires that rules of court must, among other things:

    (a)  require the Secretary of State to provide the court with all the material available to him and which is relevant to the matters under consideration;

    (b)  require the Secretary of State to disclose to the other party all that material, except what the court permits him to withhold on the ground that its disclosure would be contrary to the public interest; and

    (c)  provide that if the Secretary of State chooses nonetheless to withhold material that he has been directed to disclose, then—

    (i)  he may not rely on that material himself, and

    (ii)  if that material might assist the other party in opposing an argument put by the Secretary of State then that argument may be withdrawn from the court's consideration.

    Paragraph 4(3) will ensure that rules of court make provision for the disclosure of all relevant material.[87]

95. He went on to explain that he had already made the first rules in relation to England and Wales, the relevant rules on disclosure being set out in the Civil Procedure Rules, Part 76, (rules 76.27 to 76.29).

96. We regard these changes to the rules of disclosure made in response to the Committee's concerns as a significant improvement from the previous situation, assuming that the courts give wide meaning to the term "matters under consideration" (Schedule to the Prevention of Terrorism Act 2005 Para 4(3)(a)).

97. The Government could also usefully consider whether intelligence service personnel could be provided in support of Special Advocates in the handling of closed material, and whether Special Advocates could be enabled to appoint and call evidence from appropriately cleared experts.


98. Another issue that was raised was the question of withdrawal and whether Special Advocates should continue to represent people even if they have decided not to participate in the process. JUSTICE stated that it was against any system in which someone other than the defendant could decide what was and what was not in their best interests.

An active Special Advocate, Mr Neil Garnham QC, disagreed,

    My view is [Special Advocates] exercise an independent judgment as to what, in their view, is in the best interests of the appellant and they will be much influenced by the decision of the appellant whether or not to take part in the open hearing, but, in my view, they are not, and should not be, bound by that. There have been cases […] where Special Advocates have decided, on the particular circumstances of the case, that they ought to withdraw, and I have done that, but there will also be cases where an appellant decides not to take part in the open proceedings and where the Special Advocate takes the view that they should stay in the closed hearings and can advance the appellant's case in those proceedings.[89]

This, of course, once again reveals the extent to which the Special Advocate is not a 'normal' representative of the accused. The limitations of the system are inherent in its construct.


99. It is also notable that significant delays arose in the SIAC process, which sometimes ran to over two years. Given the experience of such delays, the value of the seven day review of non-derogating control orders made under section 3(1)(b) of the Prevention of Terrorism Act 2005 may be limited. The Lord Chancellor admitted to us that it would prove difficult for Special Advocates to be of much assistance in those circumstances, stating that:

    [The Special Advocates] could be engaged before the seven days but there is absolutely no prospect that, within the seven days, a court, a Special Advocate or, indeed, an instructing solicitor could have got together.[91]

100. The Lord Chancellor essentially accepted that the seven day hearing could only amount to a preliminary hearing of the case[92] and it would therefore not be a substantial procedural safeguard for most appellants. Thus, while the court's consideration of an order made under section 3(1)(b) might commence no more than seven days after the day in which the control order was made, a period of time would then be required to instruct the Special Advocate, for the Special Advocate to obtain disclosure of the closed material, conduct research and test the evidence. On the experience of the SIAC procedure, this could take some time.

101. One alternative to the Special Advocates System that has been proposed is an investigative magistrate system.[93] The Lord Chancellor stated:

    I am strongly against it, because what you are asking a judge to do is to become within our system, which is not inquisitorial, a prosecutor. You are saying in effect, assemble the case by pushing out that which you think might be dangerous, bringing in that which you think might be appropriate. You make the judge a player in the prosecution. That is antithetical to the way that judges normally operate in this country.[94]

It can be argued, of course, that the entire Special Advocate procedure is not the way courts usually operate in this country. The Lord Chancellor also rejected the system operated in Irish Republic as one that "would not offer a viable alternative to the scheme of control orders [because it] applies the same rules of evidence that apply in the ordinary criminal courts [and therefore] would not solve the issues that the Prevention of Terrorism Act 2005 is designed to meet".[95]

102. We raised concerns with the Lord Chancellor that the use of judicial review as an appeal mechanism did not offer sufficient procedural safeguards, since it is rare in such proceedings for oral evidence to be presented. This is despite the fact that the appeals would tend to focus on evidential matters which would require cross examination of witnesses. The Lord Chancellor provided some guarantees that this would not be a problem, stating that:

    […] the courts have got great discretion to determine how the case is actually conducted. I cannot envisage it arising, if the judge in a particular Control Order case thought somebody needed to be cross-examined, that that would not happen.[96]

This assurance was of some benefit, given the undemanding test required by the judicial review procedure, whereby the Home Secretary merely had to demonstrate that he has reasonable grounds for his relevant belief or suspicion. SIAC has commented that "it is not a demanding standard for the Secretary of State to meet".[97]

103. The nine Special Advocates who sent us a joint submission also highlighted the limitation of the judicial review procedure, indicating that:

    When the matter [appeal] is first considered by the court (within 7 days of the original decision to impose the order) the test is quite different: the court will not be asked to consider whether an individual "is or has been involved in terrorism-related activity", instead it will have to ask itself whether the matters relied on by the Home Secretary are "capable of constituting reasonable grounds" for the making or a derogating [now non-derogating] control order. That test appears to be even less demanding than that which applied under Part 4 of ATCSA since it requires the court to decide whether there are reasonable grounds (as opposed to whether the matters relied upon are capable of constituting reasonable grounds…)[98]

104. Legally, it is possible that the courts could follow the approach laid down in the case of R v Secretary of State for the Home Department, ex parte Daly[99] and consider whether in cases engaging rights under the European Convention on Human Rights, the interference was really proportionate to the legitimate aim being pursued. A statutory amendment to the appeal standard would offer a better mechanism to ensure greater fairness. It is also unclear whether these provisions in the Prevention of Terrorism Act 2005 will withstand any challenges brought pursuant to the European Convention on Human Rights.

105. We are concerned that under the Prevention of Terrorism Act 2005, the appeal mechanism used under the Anti-terrorism, Crime and Security Act 2001, has been transposed into potential challenges to control orders. Under the new provisions, Parliament has accepted that the Home Secretary need only demonstrate a 'reasonable suspicion' that someone is engaged in prescribed activity. The judicial review then only considers whether the Home Secretary's decision was reasonable and does not adequately test whether there was sufficient evidence to justify that suspicion. This test is one step further removed from whether there was objectively a 'reasonable suspicion'. The Home Secretary merely has to show to a judge that he had 'reasonable grounds to suspect' not that such a belief was reasonable to any objective standard. We believe that this system could be made fairer through a variation of the current test, whereby the Home Secretary would have to prove that the material objectively justified his 'reasonable suspicion'.

Office of Special Advocates

106. The likelihood of the increased use of Special Advocates and many of the points of process and practicality raised above suggest to us that the system of Special Advocates should be formalised and regulated. JUSTICE and other witnesses have suggested that an independent 'Office of Special Advocates', be formed that would responsibility for the appointment of Special Advocates.[100] JUSTICE also noted that as currently formulated, the use of Special Advocates who are not accountable to the people whose interests they are supposed to serve means that there is no check on negligence on the part of the Special Advocates. This is something according to JUSTICE that an Office of Special Advocates could monitor.[101]

107. It would also provide opportunities for training of future Special Advocates, as well as a focus for litigation support that was not based in the Treasury Solicitor's Department. We have already referred to the need to gather and produce expert evidence, but the needs of Special Advocates go wider than this into general litigation support. As Mr Neil Garnham QC, who, as we noted above, referred to the Special Advocates as being akin to "one man and his dog",[102] indicated,

    When you receive your first set of instructions in this, you do feel as if you are walking into something of a vacuum. Your solicitor can know nothing about the detail of the case and there is no express provision for you even to consult other Special Advocates, although we have devised an informal method of doing so, conscious always of the fact that we can reveal nothing about the facts of our particular case or anybody else's, including other Special Advocates, so I do think there would be a benefit in training. I would have thought the most obvious providers of such training would be those who have already done the job.[103]

    One of the most important needs is for new Special Advocates to have access to the collected body of decisions relating to the operation of SIAC and its decision on matters of principle. Now, at the moment that is done very informally by the passing around of a closed bundle of closed judgments with the approval of SIAC and so on and that could be made much more efficient and systematic. If that were available and recognised to be acceptable, then Special Advocates who have already done the job could provide really quite useful guidance to those who are taking it on.[104]

108. The Government has proposed to establish a team of three government lawyers to form a 'Special Advocate Support Office' (SASO) to be located within the Treasury Solicitor's Department.[105] We do not feel this goes far enough and believe that the Government should establish a more substantial facility to support adequately what appears likely to be increasing numbers of Special Advocates. We agree with those Special Advocates who said that they needed a security-cleared team which is able to conduct research (legal and otherwise) and also that they would benefit from the provision of persons with appropriate expertise to assess the controlled material. The proposed SASO will not, as we understand it, be concerned with the appointment of Special Advocates. The Attorney General told us that he is shortly to advertise openly for a new cohort of Special Advocates.

109. The Lord Chancellor, in consultation with the Attorney General, should establish an 'Office of Special Advocates'.

55   Q 43 Back

56   Ev 39, para 18 Back

57   Q 222 Back

58   Qq 44-49 Back

59   Ev 57, para 21 Back

60   Ev 49, para 19 Back

61   Ev 81, para 7 Back

62   Q 222 Back

63   Ev 57, para 22 Back

64   Q 51 Back

65   Q 51 Back

66   Q 101 Back

67   Q 111 Back

68   Q 4 Back

69   Ev 39, para 21 Back

70   Q 98 Back

71   Q 99 Back

72   See Tom de la Mare and Ben Emmerson QC 'Closed evidence and fair proceedings: the use of Special Advocates in civil and criminal law', 15 October 2004, paper presented at conference, 6th Annual Conference on Human Rights Law, London. See also Eric Metcalfe, 'Special Advocates and Secret Evidence', The Barrister, 31 August 2004 and '"Representative but not responsible": the use of Special Advocates in English law', JUSTICE, vol 1, No 2 (2004) pp 11-34 Back

73   Q 197 Back

74   Q 217 Back

75   Ev 39, para 23 Back

76   Q 115 Back

77   Q 123 [Lord Falconer] Back

78   Q 105 Back

79   Ev 55 para 9 Back

80   Q 60 Back

81   ibid Back

82   Ev 42 Back

83   Q 151 Back

84   Ev 79 Back

85   SIAC Generic Judgment 29 October 2003, para 280 Back

86   Ev 57, para 18 Back

87   Ev 83 Back

88   Ev 68, para 38 Back

89   Q 31 Back

90   Q 127 Back

91   Q 130 Back

92   Q 129 Back

93   This was one of the recommendations of the Newton Committee Back

94   Q 112 Back

95   Ev 82 Back

96   Q 159 Back

97   SIAC Generic Judgment, 29 October 2003, para 71 Back

98   Ev 59 Back

99   [2001] UKHL 26 Back

100   Ev 65, para 24 Back

101   Ev 67, para 34 Back

102   Q 4 Back

103   Q 39 Back

104   Q 40 Back

105   Ev 78 Back

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