Select Committee on Constitutional Affairs Seventh Report

Conclusions and recommendations

Operation of SIAC

1.  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. (Paragraph 31)

Special Advocate system as operated under SIAC

2.  Although the use of Special Advocates is being extended in the UK, we believe that it is one which should only be operated under the most exceptional circumstances which call for material to be kept closed. (Paragraph 55)

3.  The disclosure process under the SIAC system represents a considerable weakening of the judicial protection available under the common law Public Interest Immunity rules. (Paragraph 59)

Transporting SIAC and the Special Advocate system to the High Court

4.  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. (Paragraph 74)

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

6.  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. (Paragraph 86)

7.  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)). (Paragraph 96)

8.  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. (Paragraph 97)

9.  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'. (Paragraph 105)

10.  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. (Paragraph 107)

11.  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. 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. (Paragraph 108)

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


13.  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. (Paragraph 111)

14.  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. (Paragraph 112)

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