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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