Evidence submitted by Liberty
ABOUT LIBERTY
Liberty (The National Council for Civil Liberties)
is one of the UK's leading civil liberties and human rights organisations.
Liberty works to promote human rights and protect civil liberties
through a combination of test case litigation, lobbying, campaigning
and research.
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consultations on all issues which have implications for human
rights and civil liberties. We also submit evidence to Select
Committees, Inquiries and other policy fora, and undertake independent
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Liberty's policy papers are available at www.liberty-human-rights.org.uk
INTRODUCTION
1. Liberty welcomes the opportunity to respond
to the Constitutional Affairs Committee consultation on the Special
Immigration Appeals Commission (SIAC). The call for evidence followed
the decision of the House of Lords in A and others v Secretary
of State for the Home Department on 16 December 2004. Since
publication of this consultation the Home Secretary Charles Clarke
has announced his intention to end the use of SIAC to determine
appeals against certification under Part 4 of the Anti Terrorism
and Security Act 2001 (ATCSA). Instead he is proposing a new
system of "control orders". On the basis of an intelligence
assessment the Secretary of State will consider whether he suspects
that an individual is, or has been, concerned with terrorism.
He will then be able to impose a variety of controls on the individual.
Controls will range from restrictions on movement or communications
to home detention. Some form of quasi-judicial or judicial appeal
or review will be available to the subject. During this process
material relating to the imposition, variation, review or modification
of control orders will be heard in a mix of open and closed session.
2. It is clear from this that the control
order appeal or review process will use special advocates. Because
of this our response will focus on the use of special advocates
when dealing with alleged terrorists through the proposed control
orders rather than on the operation of SIAC itself. Although the
purpose of this response is not to comment on the desirability
of efficacy of control orders, it is appropriate to compare Part
4 ATCSA and the new system. If they are essentially the same process,
the criticisms levelled at the use of special advocates for part
4 determinations in SIAC[111]
will still be relevant.
3. The 2004 Home Office discussion paper
"Reconciling Liberty and Security in an Open Society"
considered and quickly discounted plans to extend Part 4 detention
to British citizens. The paper accepted that "while it would
be possible to seek out other powers to detain British citizens
who may be involved in international terrorism it would be a very
grave step. The Government believes that such draconian powers
would be very difficult to justify".[112]
Indefinite detention without due process is unjustifiable wherever
the detention takes place. We do not believe that control orders
will offer any greater semblance of due process than Part 4 ATCSA
detention. If the Constitutional Affairs Committee accepts that
there is merit to this argument we urge it to ask the Government
to explain why it now accepts the use of such draconian powers
are justified.
SIAC, CONTROL ORDERS
AND THE
HUMAN RIGHTS
ACT
4. The new system will be introduced through
primary legislation in the coming months. Detailed information
on how control orders will operate is not available at the time
of writing. Charles Clarke will give evidence to the Parliamentary
Home Affairs Committee (HAC) and the Joint Committee on Human
Rights (JCHR) on 7 and 8 February respectively. Unfortunately
it will be too late to incorporate any of the comments he makes
into this submission. The House of Lords Appellate Committee determined
that detention was unlawful as it breached Article 14[113]
of the Human Rights Act 1998 (by being discriminatory in
applying only to foreign nationals) and Article 5[114]
HRA (by being a disproportionate response to the threat faced).
It also quashed the UK's derogation from the Human Rights Act.
In his statement to the House of Commons on 26 January the Home
Secretary described the restrictions arising from control orders
as being "proportionate to the threat each individual posed".
As control orders will apply to both British and foreign nationals
they will no longer be overtly discriminatory. However, we do
not agree with the assessment that residential (as opposed to
custodial) detention and flexibility of orders will make them
proportionate. The right to liberty does not distinguish between
detention in prison or at home. While some degree of proportionality
may be implicit in consideration of Articles 5 and 6 HRA, [115]detention
of suspected terrorists can only ultimately be justified in anticipation
of criminal proceedings. Neither control orders nor Part 4 ATCSA
are processes preparatory to criminal trial. Because of this we
do not believe there is any reason why the use of special advocates
would be more acceptable with control orders.
5. There is however one important distinction
between Part 4 ATCSA and the new proposed system of control orders.
Whereas the right to a fair trial is not directly applicable to
the original jurisdiction of SIAC, [116]it
is applicable to control orders which are domestic civil proceedings.
Therefore many of the features of the special advocate process
used in SIAC which are also likely to be used in relation to control
orders could raise issues under Article 6. The Government has
stressed that these are civil proceedings which would not attract
the Article 6 protections particular to criminal process. However
ECHR jurisprudence has established that the European Court of
Human Rights (ECtHR) will not be tied by the vocabulary of national
legislation. [117]Professor
Andrew Ashworth maintains that the lead case of Benham v UK
requires the ECtHR to consider whether the proceedings are
brought by a public authority, have punitive elements and have
potentially serious consequences. [118]Potentially
indefinite house arrest (and even lesser restrictions such as
tagging) will clearly satisfy this test. Given the strength of
the argument that control orders will be considered to be criminal
process for the purposes of Article 6 the following elements of
the Article do not sit comfortably with the use of special advocates:
— 6 (3) (a) to be informed promptly.
. .in detail, of the nature of the accusation against him;
— 6 (3) (c) to defend himself in person
or through legal assistance of his own choosing;
— 6 (3) (d) to examine or have examined
witnesses against him.
6. In both civil and criminal proceedings
Article 6 requires that there be equality of arms—a fair
balance between the parties. The fact that the appellant will
not be present throughout control order appeal proceedings and
will not have access to much of the material makes it clear that
there will not a fair balance between the parties. A further prerequisite
of criminal proceedings under Article 6 is the presumption of
innocence, the concept that goes to the heart of fair trial and
extends back to the Magna Carta. Concerns as to how control orders
will undermine the presumption of innocence have already been
expressed widely. We are sure the Committee is well aware of them
and would only emphasise that the use of special advocates will
compound these concerns.
7. If control orders are introduced it is
difficult to see how they will be compatible with Articles 5 and
6. The Government clearly anticipates that this will not be. As
Charles Clarke said in his statement to the Commons, "The
Government, of course, intends to ensure that any future powers
we take in legislation are wholly compatible with the provisions
of the ECHR, if necessary employing a new derogation to that effect."
This is somewhat strange in implying that a human rights opt out
legitimises intentional convention breaches. It also suggests
that the Government has not appreciated the significance of the
House of Lords judgment. Paying lip service to proportionality
does not negate the Lords' crushing indictment of detention without
trial. The Government should also appreciate that the Lords were
willing to quash the previous derogation.
THE USE
OF SPECIAL
ADVOCATES
8. There is a fundamental problem with the
use of special advocates which makes them inappropriate for proceedings
where the state is seeking recourse against an individual based
on allegations of actions or behaviour by him. As there is no
possibility of taking instructions the special advocate cannot
properly test the evidence against him. As any criminal law practitioner
is aware, testing the case against their client and putting their
client's case to prosecution witnesses is the heart of an effective
defence. If, for example, the prosecution is alleging that the
defendant was somewhere at a particular place and time, how is
it possible to challenge the assertion without instructions? It
would be difficult enough to effectively defend a criminal trial
on this basis. In civil or SIAC proceedings, where the burden
of proof for the state is substantially lower, it is virtually
impossible. This central concern was summarised by the JCHR in
its report on anti terrorism powers which said;
we consider it a significant problem that the
special advocate for the detainee is appointed by the Attorney
General, who not only represents a party to the proceedings before
SIAC, but is the only legal representative present during the
closed hearings, in the absence of the detainee or their legal
representative. [119]
9. Concerns over the uses made of special
advocates have often come from advocates themselves. Scathing
comments made by special advocates who have resigned, such as
Ian MacDonald QC who referred to Part 4 ATCSA as an "odious
blot on our legal landscape." These criticisms are likely
to increase should legislation allowing control orders be passed.
In February 2004 six special advocates[120]
wrote an open letter to the Home Secretary expressing concerns
at plans then circulating to use them in criminal trials saying,
We are convinced that both basic principles of
fair trial in the criminal context and our experience of the system
to date make such a course untenable. It would contradict three
of the cardinal principles of criminal justice: a public trial
by an impartial judge and jury of one's peers, proof of guilt
beyond reasonable doubt, and a right to know, comment on and respond
to the case made against the accused. The special advocate system
is utterly incapable of replacing these essential fundamentals
of a fair trial.
This disquiet arose from concern that they would
be used in criminal trials. However the criminal process contains
greater protection for the defendant than civil law. We imagine
these views would be expressed in even stronger terms in relation
to control orders.
10. Special advocates do have a place in
the English legal system. Their use (and the creation of SIAC)
arose from the decision of the ECtHR in 1996 in the case of Chahal
v UK. [121]Mr
Chahal was an Indian Sikh separatist who the Government wished
to deport. He claimed that if removed he would be likely to face
torture. The creation of SIAC was a response to his case. For
someone in Mr Chahal's position there were two questions to determine.
Firstly, whether or not he was conducive to public good in the
UK and therefore not entitled to stay. Secondly, whether he would
be safe if deported to India. By definition, secret intelligence
would be more pertinent to the first question and it is here that
special advocates would play a role. Rightly or wrongly due process
and presumption of innocence are not relevant to determining whether
a foreign national is entitled to stay in the country. This was
therefore, legally, an administrative decision.
11. There is a profound distinction between
the use of special advocates for administrative determinations
and for quasi criminal tribunals. Making Part 4 ATCSA part of
the immigration process or describing control orders as civil
law powers does not reflect their true nature. The use of special
advocates cannot be justified when there is to be the consideration
of evidence that can result in an individual being restricted
of liberty or freedom of movement other than preparatory to trial.
The House of Lords said that the use of special advocates during
Part 4 ATCSA determinations was insufficient cure for fundamental
departures from the rule of law. There is nothing in the Government's
new proposals to suggest that a future House of Lords ruling will
not be equally damning.
Gareth Crossman
Policy Director
Liberty
February 2005
111 For example see the comments of Lord Nicholls
A v others at paragraph 82 "Nor is the vice of indefinite
detention cured by the provision made for independent review by
the Special Immigration Appeals Commission" Back
112
Home Office discussion paper paragraph 36 Back
113
The Prohibition on Discrimination Back
114
The Right to Liberty and Security Back
115
The Right to a Fair Trial Back
116
Although principles of procedural fairness and natural justice
mean they may be indirectly relevant Back
117
Benham v UK (1996) 22 EHRR 293 Back
118
Professor Andrew Ashworth, Article 6 and the fairness of trials
(1999) Crim LR 261 Back
119
JCHR, Review of Counter-terrorism Powers, 18th report
of session 2003-04, 4 August 2004 (HL 158, HC 713) Back
120
Nicholas Blake QC, Andrew Nicol QC, Manjit Singh Gill QC, Ian
Macdonald QC, Rick Scannell and Tom de la Mare, letter to The
Times, 7 February 2004 Back
121
23 EHRR 413 Back
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