Evidence submitted by Lord Carlile of
Berriew QC
1. I am grateful for the invitation to submit
evidence to the Select Committee. I do so as the independent person
appointed under section 28 of the Anti-Terrorism Crime and
Security Act 2001 to review the operation of sections 21-23,
the detention provisions.
2. It is no part of my role as reviewer
to report on the necessity, wisdom or merits of the detention
provisions. The Privy Council Committee chaired by Lord Newton
of Braintree, which produced its report during 2004, did have
as part of its remit a review of the merits.
3. As the Committee knows, the House of
Lords has held that the derogation from the ECHR to permit the
detentions is unlawful. I understand that the Home Secretary will
be making a detailed announcement shortly as to the future of
the detention provisions and what is to replace them, and when.
Although I have views on these matters, they are outside my reviewing
responsibilities.
4. In carrying out my reviewing role, I
have been able to see a significant amount of closed material
founding the detentions. I have seen the conditions in which the
detainees are held at Belmarsh and Woodhill prisons. I have spoken
at length to some of the detainees: others have refused to see
me.
5. In particular, I have read much of the
open and closed transcripts of SIAC proceedings, and all the open
and closed judgments. I have discussed the procedure with the
past and current chair of SIAC. I have discussed the operation
of SIAC and their role with some of the special advocates, including
Ian McDonald; and have received a written submission from a special
advocate who has not resigned the role but was critical of the
effectiveness of the position.
6. I am too the independent reviewer of
the working of the Terrorism Act 2000. In that capacity
I carry out a programme of relevant visits, and make comparative
studies of counter-terrorism legislation in the UK and elsewhere.
I try to keep myself fully informed as to risk levels and the
basis for them.
7. Taking into account the closed material
I have seen in both my reviewing roles, I have no doubt that there
is an existing and unpredictable risk within the UK, and to UK
assets abroad, from Al Qaeda linked terrorists. Some such terrorists
are likely to be UK citizens, others foreign nationals.
8. My assessment is that there is a real
level of risk of attack on places of mass aggregation—airports,
football stadia, music venues and the like. Evidence from AQ attacks
abroad (eg New York 9/11, Bali, Madrid) supports the opinion that
generally they are more interested in body counts than targeting
individuals. The consequence is that the burden of responsibility
of the UK government to protect the ordinary citizen in almost
any crowd situation is heightened by the identified risk as I
have described it. Further, AQ is very different from many other
terrorist groups, in that it appears to be a loose connection
of associated associates albeit with shared purposes, rather than
a paramilitary structure. This difference makes it more difficult
to pin down exactly what AQ is at any given time, and who is or
may be involved in it or under its penumbra.
9. As I have said in my reports to date,
in my view under the terms of the legislation the Secretary of
State has been justified in the detentions he has ordered.
10. I have no doubt that SIAC has performed
its functions in a thorough and entirely judicial way, and to
a high standard within its jurisdiction. The questioning and analysis
of evidence by the Commission itself has been robust, and they
have striven for fairness. Their generic and individual judgments
display a very detailed knowledge, founded on evidence, of the
whole picture of AQ activities and related events.
11. The comments in this paper do not relate
to SIAC's work other than in relation to the detainees, as that
is the area on which I have concentrated as reviewer.
12. In terms of the membership, it is appropriate
that SIAC and all its hearings should continue to be chaired by
serving judges of the High Court or Court of Appeal.
13. I have some misgivings about the range
of other members of SIAC. I am sure that they have always acted
with total integrity. However, for the credibility and transparency
of the system I would be happier if, whilst one of the members
should have experience of security or at least diplomatic work
at a high level, the other should be truly a lay person without
such experience. I cannot see any real difficulty in finding a
small group of such people, who could be security cleared. However,
I emphasise that there is no basis for suggesting that the present
membership is anything other than thorough and fair within its
limited jurisdiction (which of course involves a lower standard
of proof than in conventional civil and criminal courts).
14. SIAC has acted with acceptable speed
in all cases, since its proceedings commenced in earnest. Initially
there was some delay, as I understand it because it was hoped
that the derogation issue could be resolved much more quickly
than proved to be the case. The hearings before SIAC have been
the subject of clear and energetic judicial case management.
15. The periods of detention so far compare
without disfavour as against those in Spain, France and the USA.
The procedures used in each of those countries are different from
our own and from each other. However, in my view the effect on
suspects/detainees of the different procedures has been much exaggerated
by some. I believe that the fact that France and Spain have not
derogated from the ECHR is a vestigial difference in many cases.
The Patriot Act and some other USA statutory provisions, and some
permitted executive acts, go far beyond anything that would be
tolerated as acceptable (legally or politically) in the UK. Any
comparisons between ATCSA 2001 and Guantanamo Bay are, I believe,
totally unhelpful and include gross exaggeration.
16. It is inevitable that problems arise
in any tribunal where the subject of the case, here the detainee,
does not see or hear the whole of the evidence and proceedings.
The fact that the detainee is left in that position understandably
is bound to cause anxiety to all of us more used to the general
disclosure procedures of the courts of this country. It is regrettable
and should be avoided so far as possible. Understandable too is
the frustration of the detainees' private lawyers, who can only
see what their clients see.
17. Having seen extensive material, I am
in no doubt that national security could be at risk if certain
types of evidence were revealed to the detainees. At risk too
would be some individuals' lives. The kind of evidence I have
in mind includes that provided by (in this context precious) human
resources including those who might be described as a term of
art as "informants", disclosure of locations used for
observation, details of technical facilities available for listening
to and/or reading communications, descriptions and identities
of police officers and others, and methods of risk assessment
used by the control authorities.
18. 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.
19. If the special advocate system has value,
the comments that follow are equally applicable to their involvement
in any new legislation and procedures as may be announced shortly
by the Secretary of State.
20. That the special advocates have been
partly effective has been demonstrated to me by some of their
cross-examinations, and by the release of one detainee following
the decision of SIAC. The release of another detainee by the Secretary
of State may have been affected in part by scrutiny of the evidence
by the special advocate, as part of the ongoing Home Office consideration
of each case.
21. I have reported in the past that the
special advocates should have greater assistance in the preparation
of cases. In my view for each case there should be a security
cleared case assistant from the security service, capable of assisting
to organise a sometimes large volume of papers, and of advising
the special advocate as to service procedures and potential relevance
to the case. This would assist greatly their understanding of
their instructions.
22. In addition, I have reported that there
should be training for the special advocates to enable them better
to understand the kind of material they are likely to receive,
and of how best to deploy it in the SIAC context. I know that
there have been some concerns as to how such training could be
given without the suspicion that it would dilute the (demonstrable)
independence of the special advocates. In this context the Judicial
Studies Board, whose contribution to judicial independence has
not been questioned seriously, might agree to supervise such training.
23. I suggest too that the special advocates,
perhaps under the judicial regulation of SIAC itself, should have
a closer relationship with those whose interests they represent.
There has been no or almost no such contact in the past in the
detention cases. This means that the special advocate has been
unable to question the detainee or his lawyers on potentially
important matters such as where the detainee was on a particular
day, who were his associates, why he was seen to perform certain
actions. Given adequate protection of the security of the state
on an instance by instance basis, I can see no significant harm
in developing the system.
24. The two resignations referred to above
highlight that there are problems, but in my opinion these are
not beyond repair in a procedure that was bound to evolve in the
light of experience.
25. Of one thing I am sure. Those who see
closed material and from conclusions based upon it cannot expect
the unreserved trust of those who do not. This applies particularly
to those detained. This trust gap requires extra vigilance by
all with responsibilities in this area, but should not frighten
anyone away from exercising those responsibilities in a defensible
and proportional way. The consequences following a major terrorist
event for any government that had failed to take robust steps
to protect the public can only be imagined.
26. As an incidental matter, I am puzzled
as to why the House of Lords Judicial Committee dealing with the
derogation case saw no closed material, whereas the Court of Appeal
(whose decision they overturned) did. However, that probably falls
outside this Committee's remit.
27. If I can assist the Committee beyond
the scope of this paper, I shall be happy to do so.
Lord Carlile of Berriew QC
24 January 2005
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