Select Committee on Constitutional Affairs Seventh Report

6  Conclusion

110. The Special Advocate process was introduced as a response to the European Convention on Human Rights Chahal judgment and other criticisms of the 'Three Wise Men' procedures. It introduced a measure of due process into a system of immigration decisions leading to deportation which had previously not been appropriately adjudicated upon. This process was severely tested when it was used for the detention of individuals under Part 4 of the Anti-terrorism, Crime and Security Act 2001. It has been subject to a large number of legitimate criticisms, both from the Special Advocates themselves and human rights bodies. Parliament has now decided to import the Special Advocate system into the High Court through the Prevention of Terrorism Act 2005. This system appears to be the only one on offer, although alternatives may eventually be considered. In this context we have considered how the system could be improved to make it as fair as possible.

111. We welcome the proposed improvements suggested to us by both the Lord Chancellor and the Attorney General, notably to introduce open competition for the appointment of a pool of Special Advocates—who are to be provided with some logistical and professional support and training. All these measures appear to have been prompted largely by this inquiry. We believe that further measures are needed.

112. We recommend, in particular, that the Government ensures that:

i.  It moves from a judicial review on non-derogating control orders to an objective appeal considering whether or not there is a 'reasonable suspicion' that an appellant is involved in terrorist related activities;

ii.  Steps are taken to make it easier for Special Advocates to communicate with appellants and their legal advisers after they have seen closed material, on a basis which does not compromise national security. This is for two reasons: first, to ensure that the Special Advocate is in a position to establish whether the charges or evidence can be challenged by evidence not available to the appellant; and second, so that the Special Advocate is able to form a coherent legal strategy with the appellant's legal team; and

iii.  Sufficient professional support is provided to the Special Advocates. We doubt that the proposals put forward by the Attorney General will be sufficient to meet the concerns expressed to us by the Special Advocates. The support provided should include security-cleared staff to assist in research and assessment of controlled material. These arrangements should be formalised into an 'Office of the Special Advocate' to allow appropriate staffing and resources to be dedicated to ensuring suspects obtain a fairer hearing.

113. These improvements, whilst bringing a greater degree of fairness into the Special Advocate system, do not address all the criticisms directed at aspects of the Prevention of Terrorism Act 2005, some of which were beyond the scope of this inquiry. Parliament will have the opportunity to return to these questions.

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