Examination of Witnesses (Questions 20-39)
NEIL GARNHAM
QC, MARTIN CHAMBERLAIN,
GARETH PEIRCE
AND IAN
MACDONALD
QC
22 FEBRUARY 2005
Q20 Keith Vaz: Have you raised those
concerns with anybody?
Neil Garnham: I and a junior I
was instructed with in one case raised our concerns about some
of the operations direct to SIAC and to the Secretary of State.
I cannot recall whether this was one of the matters that we raised,
but it is a circumstance that is obvious to all those who take
part in it and it is implicit and explicit in the system.
Q21 Keith Vaz: You do not think there
is any way in which some kind of neutral supervision not involving
the Secretary of State could be built into the procedures?
Neil Garnham: Yes, I do. I think
that might be possible.
Q22 Keith Vaz: Have you raised examples
of the ways in which this could be done with whoever has instructed
you?
Neil Garnham: That it could be
done under the current structure?
Q23 Keith Vaz: Yes, have you said this
to somebody?
Neil Garnham: No, I do not think
I have.
Keith Vaz: Do you think you should if
you think it would improve the system?
Chairman: He did actually say he should,
so I think we can draw on this suggestion in our own view.
Q24 Keith Vaz: But you have not raised
it with anyone else apart from this Committee?
Neil Garnham: The need to have
a third party?
Q25 Keith Vaz: Yes.
Neil Garnham: No, I do not think
I have.
Q26 Keith Vaz: Mr MacDonald, you resigned,
I think, to the Mail on Sunday, did you not?
Ian MacDonald: No. All right,
I wrote to the Attorney General and my letter was delayed so that
he did not in fact receive it before the article in the Mail
on Sunday appeared. For that, I blame the Post Office.
Q27 Keith Vaz: Why did you stay so long,
bearing in mind you had all these concerns about the way in which
the system operated? You are a very experienced, probably the
leading, immigration law practitioner in the country, so why on
earth did you stay so long?
Ian MacDonald: I think I made
it clear that one of the reasons why I stayed in was that, like
all the other Special Advocates, I thought I might make a difference.
There came a point when I was balancing that against, as I have
explained, giving legitimacy to a system of indefinite detention
without trial to which I objected. It was a balancing exercise,
but I think I felt that it was important to see what the House
of Lords were going to do in the derogation hearing and in fact
it was after they gave their ruling and then I heard the reaction
of the Secretary of State that he was going effectively to continue
to keep people in prison when the House of Lords had said that,
according to Strasbourg law, it was unlawful and had quashed the
derogation which the Government knew perfectly well they required
in order lawfully to detain.
Q28 Keith Vaz: You said on your resignation,
"The current legal system is certainly having a very adverse
effect on the Muslim community in Britain and the whole Asian
community. I think it is giving Britain a bad name internationally".
Why did you draw that conclusion based on your experience?
Ian MacDonald: There are two separate
questions there. The first one, I think, is that once you give
wide publicity to the fact that the people whom you are going
to lock up are conducting a worldwide jihad, the impression that
is given is that they are representative of the whole of Islam
which is patently untrue, but it then allows people in the streets
to start attacking any Asian-looking person. In fact if you look
at figures that the Director of Public Prosecutions has put out
or that the CPS, I think, have put out, there has been a very
large increase in the last year in racially aggravated crimes
against Asians in which the attackers shouted at their victim
either "Saddam Hussein" or "Bin Laden".
Q29 Keith Vaz: Are all the defendants
that you have dealt with, Mr Garnham and yourself, people of Asian
origin and of the Muslim faith?
Ian MacDonald: I have dealt with
them, but not under the anti-terrorism legislation. In the anti-terrorism
legislation I have not dealt with anyone who does not come from
north Africa.
Q30 Keith Vaz: But of the Muslim faith
because you mentioned the word "Muslim"?
Ian MacDonald: The Muslim faith,
yes.
Q31 Keith Vaz: Are Special Advocates
bound to withdraw should their client decide to withdraw from
the open appeal or should they merely pursue a request to withdraw?
Neil Garnham: Neither. My view
is they exercise an independent judgment as to what, in their
view, is in the best interests of the appellant and they will
be much influenced by the decision of the appellant whether or
not to take part in the open hearing, but, in my view, they are
not, and should not be, bound by that. There have been cases,
as the Committee will be aware, where Special Advocates have decided,
on the particular circumstances of the case, that they ought to
withdraw, and I have done that, but there will also be cases where
an appellant decides not to take part in the open proceedings
and where the Special Advocate takes the view that they should
stay in the closed hearings and can advance the appellant's case
in those proceedings.
Q32 Keith Vaz: Mr MacDonald, do you agree
with that?
Ian MacDonald: Yes.
Q33 Keith Vaz: Should they withdraw?
Ian MacDonald: Part of the task
that you have to perform as a Special Advocate is that once you
get closed material, you are on your own and, therefore, you have
to make a judgment about how you are going to play the case in
the closed session, which is not particularly satisfactory because
it is done without any reference to the case which the appellant
may be putting.
Q34 Keith Vaz: Mr Garnham believes it
should be left to the judgment of the Special Advocate.
Ian MacDonald: Well, it has got
to be left to the judgment of the Special Advocate. There is no
other way to do it when you are in there.
Martin Chamberlain: I was involved
in two cases in both of which the appellant chose to play no part
in the open proceedings. In the first case my leader and I decided
to withdraw and in the second case we decided to take part, and
that is an illustration of what I believe to be the correct position
on this matter which is that Special Advocates have to take an
independent view as to what is in the interests of the appellant
in the particular case.
Q35 Mr Soley: Can I clarify something
with Mr MacDonald. You indicated that Britain gets a bad reputation
and Muslims are troubled by the present situation. I understand
that and I am not unsympathetic, although I also know that an
awful lot of Muslims understand what the nature of the problem
is, in fact the vast majority do. What I am puzzled by is the
implication of the question that there are better systems in other
parts of Europe, North America and so on, whereas my understanding
is that in most of those countries Muslims are also being locked
up often for many years and without any procedures at all, so
what is the better system that you seem to have in mind?
Ian MacDonald: If people have,
as they will undoubtedly have if they are involved in terrorist
activities, somewhere along the line committed one or more crimes,
they ought to be charged, if that is the case, and tried in the
normal way. Since the start of the anti-terrorism legislation
in 2001 after 9/11, British nationals who are suspected of terrorist
activities have been dealt with under the ordinary law.
Q36 Peter Bottomley: Can I just follow
on from Keith Vaz's questions. Lord Carlile, in his review, expressed
a view that Special Advocates should not be able to decide not
to go on. What is your comment on that?
Neil Garnham: I think he is wrong.
Martin Chamberlain: So do I and,
furthermore, I think it is very difficult to see how the proposal
which he made, namely changing the legislation so as to make it
impossible for a Special Advocate to take the path of withdrawing,
could be implemented in practice. Presumably the legislation would
have to say something like, "It shall be the duty of a Special
Advocate to represent the interests of the appellant by making
submissions even when he considers that those submissions will
not assist the appellant", and that is, to my mind, a very
difficult course to take with legislation.
Q37 Peter Bottomley: Is there any parallel
or precedent for that kind of proposed requirement?
Ian MacDonald: I do not think
there is. I agree with the other two on this, that I do not think
there is because I do not think there is any other animal like
a Special Advocate because you do not have a client. We are representing
in there the interests of a particular appellant without that
person being our client and, therefore, you are not acting on
instructions and, therefore, you have to make your own judgment
and you cannot be told that you must stay or you must make submissions
if you do not think it is right to do so.
Q38 Peter Bottomley: Just for clarity,
who appoints a Special Advocate?
Ian MacDonald: Well, I was appointed
by the Attorney General and I gather that there may be some doubts
about that. That is another point, that because the Attorney General
may be involved and has been on the other side, for example, in
the derogation hearing and we are appointed by him, we also have
at the Treasury Solicitors the Attorney General's part of the
Treasury Solicitors and in fact the person who instructs all of
us is not someone who is vetted and, therefore, he cannot see
the closed material, so there is no one in fact that you can discuss
these things with. You cannot go to the Attorney and discuss it
with him unless there is a question of etiquette, which has arisen
in certainly one case I was involved in concerning my junior,
but there is no one, other than talking to other Special Advocates,
that you can consult with.
Peter Bottomley: Charles Dodgson might
have made something of this!
Q39 Dr Whitehead: Bearing all of this
in mind, do you think that Special Advocates require any form
of training to familiarise themselves with this interesting state
of affairs? If that is so, how might that be done and indeed who
might supply it?
Neil Garnham: I think there would
be some benefit in it. When you receive your first set of instructions
in this, you do feel as if you are walking into something of a
vacuum. Your solicitor can know nothing about the detail of the
case and there is no express provision for you even to consult
other Special Advocates, although we have devised an informal
method of doing so, conscious always of the fact that we can reveal
nothing about the facts of our particular case or anybody else's,
including other Special Advocates, so I do think there would be
a benefit in training. I would have thought the most obvious providers
of such training would be those who have already done the job.
Quite how it works out it is not easy to envisage, but I do not
suppose it would be beyond the wit of man.
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