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)
Conclusion
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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