Letter from Rt Hon Alan Beith MP, Chairman,
Constitutional Affairs Committee to Rt Hon Lord Goldsmith QC,
Attorney General
In your evidence this morning you stressed the
importance of the function performed by Special Advocates in relation
to disclosure of material and the rulings that can be made by
the Special Immigration Appeals Commission as to whether disclosure
to the applicant would contravene the public interest as defined
in the rules.
You indicated to us that you did not understand
the point being made by some commentators about exculpatory material.
You stressed the duty on the Secretary of State to disclose all
material to the Commission whether helpful to his case or not.
Two broad issues arise: first, the nature of
the duty on the Secretary of State to disclose exculpatory material
to the Commission; and, second, the Commission's ability to direct
that such material should be disclosed.
The Committee understands that during some of
the first round of individual appeals under the Anti-Terrorism,
Crime and Security Act 2001, the Secretary of State accepted
the practice of reviewing material with a view to identifying
exculpatory material. It is unclear to the Committee whether there
is any `duty' to do so; and, if so, where any such duty is stated.
We have been unable to identify any provision in the primary legislation,
or the SIAC procedure Rules, that indicate such a duty.
While there is statutory obligation to act fairly,
there is apparently no over-riding "interests of justice
test" available to SIAC in regulating these proceedings.
Even if such a duty was to be implied, it is difficult to see
how it could be policed effectively. It would surely depend on
the views of the intelligence services officer as to what appears
to be exculpatory, rather than the Special Advocate who is representing
the applicant and who would be mindful of fairness and the interests
of justice.
Furthermore, even if exculpatory material was
disclosed to SIAC, which then ruled that the material could be
disclosed to the applicant and his advisers without damage to
the national interest, there is no power to enforce such a ruling
if the Secretary of State objects to it under Rule 38(7) of the
SIAC 2003 Rules. (We understand that the rules proposed
under the Prevention of Terrorism Bill are similar).
The current rules mean that if the Secretary
of State loses a public interest ruling at SIAC, he may continue
to proceed with the certification and detention, relying on other
inculpatory material. We understand that he is not compelled
to withdraw the certificate in preference to non-disclosure, which
prevents SIAC having any sanction under the Rules. It appears
to us that the Secretary of State can simply state that he is
not relying on the exculpatory material. This is in spite of the
fact that the applicant would want to be aware (and should be
aware) of the existence of any crucial exculpatory material.
1. Can you clarify the nature of the duty
on the Secretary of State, discussed above?
2. Are the Rules relating to disclosure going
to be placed on a statutory footing, or clarified into transparent
guidelines that can be relied upon before whatever court is tasked
with considering these matters in the future?
3. What mechanisms will be introduced to
ensure that Special Advocates, representing such applicant, have
sight of all potentially exculpatory material?
We would appreciate it if you could provide
us with a note that deals with these questions and the broader
issues raised by return, given the urgency of these matters.
Rt Hon Alan Beith MP
Chairman
Constitutional Affairs Committee
8 March 2005
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