Examination of Witnesses (Questions 40-59)
NEIL GARNHAM
QC, MARTIN CHAMBERLAIN,
GARETH PEIRCE
AND IAN
MACDONALD
QC
22 FEBRUARY 2005
Q40 Dr Whitehead: Could those who have
already done the job tell the people who are about to do the job
sufficient information in order to allow them to do the job?
Neil Garnham: Yes, I think they
probably could. One of the most important needs is for new Special
Advocates to have access to the collected body of decisions relating
to the operation of SIAC and its decision on matters of principle.
Now, at the moment that is done very informally by the passing
around of a closed bundle of closed judgments with the approval
of SIAC and so on and that could be made much more efficient and
systematic. If that were available and recognised to be acceptable,
then Special Advocates who have already done the job could provide
really quite useful guidance to those who are taking it on.
Q41 Dr Whitehead: I think you mentioned
the two men and their dogs, but I would be interested in observations
generally on this. Is there any need for some sort of body to
co-ordinate and maximise the efficiency of the Special Advocates
in general and in what way might that, or could that, be conceived
as sort of matching the expertise and facilities available to
the Secretary of State's team? Would you see that as in any way
sort of bringing reality to the force of arms argument in this
as far as advocacy is concerned?
Neil Garnham: We deal with this
in the paper and, in short, I agree with the suggestion implicit
in your question. I think the position would be improved if Special
Advocates had access to both the solicitors who were able to see
closed material, but also to assistance on a more technical level.
If I can give you one example, one of the most useful functions
Special Advocates perform is persuading the Secretary of State
and, failing that, SIAC that more material in the closed statement
should be made open. One way in which they do that is by pointing
out that the material is already in the public domain that the
Secretary of State purports to keep closed. One way in which that
is done most easily is by use of the Internet, but Special Advocates
cannot, without breaching their duties of confidence, put into
a Google search-engine the name of an individual taken from the
closed material because to do that would risk breaching security.
Therefore, we are in a position, if we want to pursue a question
of whether X and Y, whether their names are in the public domain,
of having to ask the Security Services to do that Google-type
search for us because we cannot do it on an open computer. Now,
it seems to me that that could readily be addressed by providing
Special Advocates with some form of technical assistance whereby
that assistance could be called on in those sorts of cases.
Q42 Dr Whitehead: But how would that
special assistance avail itself of a wider amount of information
than you would be able to, for example?
Neil Garnham: It depends how it
was set up, but they, in the example I gave, could at least do
the sort of closed searches that currently we would not be permitted
to do on our laptops in chambers.
Martin Chamberlain: It may be
also that the people who provided that technical assistance would
have better knowledge of ways of getting hold of publicly available
sources than we do because we are not by any means experts in
where to look for publicly available information. It may be that
other people would know that much better than we do.
Q43 Chairman: And let's get this clear,
that you, Mrs Peirce, would be excluded from that process entirely
because by this stage the instructing solicitor has lost any role?
Gareth Peirce: Yes. What our fundamental
job is as defence solicitors is to investigate and to know the
person we are representing and his back teeth, to know everything
about what makes him tick and to look for evidence that can establish
his case. In this situation, we do not even know what he is accused
of. We do not know the basis, we cannot respond and we cannot
investigate. I appreciate that this Committee is focusing on the
role of the Special Advocate and how it could improved, but it
is extremely difficult to contribute to that debate when we are
saying that all of this conversation and discussion is a further
extension of the Kafkaesque nightmare for our clients. I think
it is imposing upon the Special Advocates a duty of constant soul-searching
and indeed morality which should not be being placed upon them
any more than it should on the judges in SIAC. We have had this
debate with the judges in SIAC to say, "It is not you who
are the subject of our attack; it is the system that you are operating",
and the judges themselves have said, "As long as this system
is here, we are obliged to operate it. It does not mean that we
are approving it". Therefore, I do urge the Committee at
all times to keep coming back to what we are saying, that it is
not a personal attack, it is not anything to do with the people
who are operating in it, but it is to say that if you are at the
receiving end of this kind of accusation, it is wrong in law,
it is wrong in fact, and it is ridiculous that that person should
never be able to tackle it himself, and that is not just literally
a recipe for madness, but it is the destruction of very tried
and tested methodology in the criminal process which we all criticise.
We all criticise in any criminal prosecution that there are constraints
upon us, what we perceive as injustices, but, nevertheless, we
can proceed towards an end which has fairness attached to it and
safeguards. Here it is simply free fall three years on. All we
have when we are dealing now with the situation for bail for the
people we represent is a two-line assertion saying, "The
Secretary of State assesses that you are still wedded to your
extremist views", and that is all the person is told, yet
nobody has come near him in three years, he has had no visit at
all except from his wife and the only phone call he has made is
to his wife or his solicitor. How is this assessment made and
on a bail application, even where there is still closed material,
where there is still a role for the Special Advocate who has not
seen this person, if he ever saw him in the first place three
years ago? If he has not seen him for three years, how can he
participate effectively in that assessment? There must be myriad
and mountains of enigmas in the process and that is not what we
have in this country. We do not depend upon enigmas; we depend
upon transparency and the ability to react intelligently.
Chairman: Let me assure you that we have
made no presumptions as a committee about whether this is a desirable
process. What we are actually trying to do is to throw some light
on it, how it works, what are its internal inconsistencies or
problems and that, I think, should help the wider political community
to form its judgment about whether the process is an acceptable
one or not.
Q44 Ross Cranston: I am a barrister and
recorder. Can I just say that, in my view, Mr Garnham and Mr Chamberlain
are acting in the best traditions of the Bar in acting as Special
Advocates just as Mr MacDonald acted in the best traditions of
the Bar in resigning, and I think it is distasteful that that
issue was raised earlier. I want to raise the issue of the appointment
of Special Advocates. Mr MacDonald raised this issue of whether
the appointment should be made by someone other than the Attorney.
The law officers do act of course both for the Government, but
also in a neutral way and I suspect that when the appointment
of Special Advocate is made, that is being done in that neutral
way. Who else would do it because I think it would be very difficult
for the court to do it, would it not, because again you get the
same sort of conflict of interest?
Ian MacDonald: I have never had
a problem about who appointed me and whether it should be someone
other than the Attorney. That has never really been, for me, an
issue. The fact that once you are appointed you have no one that
you can go to is a different question and, in particular, over
some of the issues that you face once you are on your own, particularly
the kind of issues that my two ex-colleagues have discussed over
this nonsense about not being able to do Google searches and so
forth.
Q45 Ross Cranston: Just on the appointment,
if I could just limit it to that, there has been some criticism,
has there not?
Ian MacDonald: There has.
Q46 Ross Cranston: I just wondered, is
it a serious problem?
Ian MacDonald: I have never found
it a serious problem
Q47 Ross Cranston: Mr Garnham is shaking
his head, for the record, and saying it is not and Mr MacDonald
is saying the same thing.
Neil Garnham: In fact we were
instructed by the Solicitor General to avoid this sort of technical
conflict, but it does not seem to me an issue in practice at all.
Martin Chamberlain: There is an
issue though as to whether it is necessary that a Special Advocate
should be foisted on appellants. Clearly it is necessary that
there should be some limitation in choice because obviously Special
Advocates have to be security-cleared, but we, in our evidence,
question whether it is necessary that there should be no choice
at all. Could there be a pool, for example, of security-cleared
advocates?
Q48 Ross Cranston: So you have a pool,
the names would be presented and the person would choose?
Martin Chamberlain: That would
be at least an improvement on the current system so far as the
appellant is concerned, one would have thought.
Q49 Ross Cranston: What about the practicalities
of that? They are not likely to know or would they be acting on
advice, say, of Gareth Peirce in terms of their choice? Is that
how it would happen?
Martin Chamberlain: Well, I suppose
that they would have the same information available to them as
any client has who wants to select a barrister for a case. Naturally,
they would have a smaller pool of barristers available to them
because they would have to choose from security-cleared counsel,
but there is no reason in principle why they should not have that
choice.
Q50 Ross Cranston: I think you also,
in your collective evidence, raised this issue of expertise and
because it came out of immigration, SIAC, I think the criticism
has been made that there are not enough, for example, criminal
practitioners there. Has that now been overcome or do we need
other expertise as well, such as administrative law? What sort
of expertise do we need there and is it being provided amongst
the pool?
Neil Garnham: The pool at the
moment, I think, is largely confined to those with administrative
law experience and that made good sense in the early stages of
SIAC because many of the issues were of an administrative law
character. Our collective view, as set out in this paper, and
certainly mine is that the pool could usefully be widened to include
those with experience of criminal cases and those with experience
of civil cases dealing with witness actions.
Q51 Ross Cranston: Can I just ask for
an explanation of this issue of how the pool becomes exhausted,
which was something raised in the Newton Report, because you cannot
choose the person again, as it were? What is the problem and what
is the solution?
Ian MacDonald: In one of the cases
that I did, I think I represented the interests of five of the
people who had been detained and in the last of them, the only
reason why I was able to represent his interests was because Mrs
Peirce was quite happy that the Special Advocate did not go and
see the person beforehand, but the reason why you cannot reappear
is because once you have seen the closed material in what are
a general group of cases, there is generic evidence and then there
is specific evidence that deals with the particular appellant.
The generic evidence affects all the people who may be part of
the so-called "link network", or whatever you want to
call it, and once you have seen that, then you cannot start the
process which Neil Garnham has talked about where you start off
by going and seeing the appellant with the appellant's solicitors,
you may have discussions with the appellant's solicitors and counsel,
but once you get the closed material, the Chinese wall is up and
you cannot do that anymore, so once you have been instructed on
one of these general cases, you cannot have a second bite. In
fact I think I was instructed on four cases initially and then
got this fifth one afterwards, so they had run out of Special
Advocates and it again highlights some of the, and I had better
be careful of what I say, absurdities and difficulties of the
system.
Neil Garnham: Yes, what Ian says
is right.
Ross Cranston: Can I just ask about the
expertise. You mentioned this before and I was surprised, frankly.
I did not appreciate that the solicitor instructing you is not
security-cleared and, frankly, is not much help because of that,
not because of the lack of qualities of the person, but just because
they do not have the sort of expertise in terms of being able
to see the material.
Q52 Peter Bottomley: Is this the Treasury
Solicitor?
Neil Garnham: The man at the Treasury
Solicitors who instructs us all in fact has done his job admirably
and is very helpful in the way he conducts himself; it has been
invaluable. However, because he is not security-cleared, and I
think it is a matter of deliberate policy that he should not be
security-cleared, he does not get to see the closed material,
so we cannot discuss with him the closed evidence.
Q53 Ross Cranston: Is there a rationale
to that or is that just how it has happened?
Neil Garnham: I am not confident
that I can give an accurate answer to that. I suspect it is because
the view was taken that you could not have two solicitors inside
the Treasury Solicitors who are both security-cleared, seeing
the same material on different sides, but I do not know.
Q54 Ross Cranston: It is not unusual
to have Chinese walls in legal organisations, even though there
is some scepticism by the courts as to whether they actually work.
Ideally, you would say that that person should be security-cleared,
should see the closed information and should be able to do these
sort of Google searches that you mentioned. What else should they
be able to do?
Neil Garnham: I am not sure the
solicitor necessarily should be able to do the Google-type searches.
Our suggestion would be that the Special Advocates were provided
with some more technical assistance than a solicitor, so somebody
with Security Service experience perhaps.
Q55 Dr Whitehead: Would that person need
to be security-cleared?
Neil Garnham: Absolutely.
Martin Chamberlain: It seems to
have been an assumption that has been made throughout that the
solicitor who instructs us must be an employee of the Government
and we, in our evidence, question whether that assumption is a
sound one. There does not seem to us to be any reason in principle
why there could not be an independent security-cleared solicitor.
I know, for example, that in other contexts where national security
concerns arise in legal proceedings, for example, in employment
cases, there are independent solicitors in private firms who are
security-cleared and who are able to act for employees who want
to bring, for example, employment proceedings against employers
where there is a national security element.
Q56 Ross Cranston: Or perhaps creating
some sort of special unit which is quite isolated in government.
Martin Chamberlain: Which is another
suggestion that we have also put forward in our evidence, an independent
office of the Special Advocates, something of that nature.
Q57 Peter Bottomley: I have not got an
interest to declare, but I have had experience of breaking the
banning order . . . on The Reverend Beyers Naude in South Africa
some years ago. I was involved in the case of a young man accused
of blowing up London where clearly he was in jail, but he clearly
had not done it, and I was involved in the case of a senior police
officer where warrants were obtained for interception and surveillance
on grounds of a grave threat to national security which were not
true, or turned out not to be true, and I thought they were not
true to begin with, so I have a slight suspicion over some of
the things which happen, although I am willing to accept that
the Intelligence Services get most things right most of the time
and they are acting in a straightforward way. Can I ask whether
you have had the chance of seeing Sir Brian Barder's evidence
to us and whether you agree that it ought to be possible to deal
with criminal charges and you do not actually need SIAC or, therefore,
the Special Advocate system in the way it is being used at the
moment?
Ian MacDonald: So far as using
the Special Advocate system in any criminal trial is concerned,
I would be very opposed to that. That would seem to me to be doing
even worse than the anti-terrorism legislation of locking people
up indefinitely once you start having a criminal trial and you
take away what I would regard as the fundamental elements to a
fair trial and, in particular, that the person who is being tried
does not have access to all the evidence which is being called
against him or her. From my experience of the kind of dislocation
that you get between trying to protect someone's interests when
you do not really know what their interests really are, to do
that in a criminal trial would, in my opinion, be a travesty and
I would be very much opposed to it and I certainly would not want
to take part in it as a Special Advocate.
Neil Garnham: I think there are
difficulties, although I am not sure that I am any expert to give
an opinion on this, but I think there are difficulties in suggesting
that inevitably all these cases could have been dealt with as
criminal trials because the nature of the evidence upon which
the Secretary of State is bound to rely is often going to mean
that that is simply not sensible.
Q58 Peter Bottomley: How should unproven
factual allegations be handled by SIAC?
Neil Garnham: We have attempted
to address that in our paper and there are, it seems to us, questions
that need to be raised about the burden of proof and about SIAC's
approach to the degree of deference that is due to Security Services'
evidence on the subject. I do not think I would feel confident
to give a complete answer to your question as to how it should
best be done. All I think I could do is to point to our paper
and to the difficulties we think there are with the current arrangements.
Q59 Peter Bottomley: And how far do you
go along with the SIAC view that what it ought to be looking at
got widened by the Court of Appeal and the House of Lords and,
in particular, that the Government should be able to define national
security in a way which is difficult to explain sensibly and openly?
Neil Garnham: I am not sure any
of us are going to volunteer to say why it is that the House of
Lords have got it wrong on that or any other topic. I certainly
would be slow to do so.
Ian MacDonald: In the Raymond
case I was the amicus in the Court of Appeal and put forward
a suggestion to the Court of Appeal as to how national security
might be defined and that was rejected; as indeed were what seemed
to me to be the eminently sensible views of SIAC in its first
determination. Basically we have a decision of the House of Lords
and it is a binding decision on us.
Gareth Peirce: However, Raymond
was dealing with a clearly immigration/deportation context. From
the moment of being set up, the 2001 Act is saying these are criminal
accusations (with which I disagree) but we cannot bring them to
a criminal court for trial. There is, therefore, a real difference
in the level at which there should be clarity and safety limits
between one and the other. We would come back to the absolutely
fundamental necessity in criminal law for society's benefit generally
for any person to know where he stands so that he can conform
to the laws of society, so that he can adapt or adopt behaviour
that is in accordance with that—knowing if he does not there
are penalties. The enormous overarching problem here is that on
December 18 2001 there was brought in legislation which used these
extremely broad terms as "a threat to the nation", "threatening
the fabric of the nation"; but what was said against the
defendants was so vague and, indeed, retrospective that even now
they are saying, and many, many others are saying, "How do
we know if we are breaking the law: how do we know if we are going
to be subjected to this kind of situation?", particularly
on the cusp of discussion of new law involving British nationals
as well. People will go to their lawyers, as did many of these
accused detainees under this Act, as say, "We raised money
for Chechnya; we thought it an absolute moral necessity; we thought
it was legal to be helping Chechen defence, only to find in SIAC
it said "When you did that, before the law came in, before
you knew you might be looked at, when you did that we assessed
that you were helping Chechen resistance of a particular type
that in the past had had links to people who may have had links
to al-Qaeda"". It is that remote. I agree with Sir Brian
Barder that the definition is so amorphous and so vague that no
citizen or no non-citizen can know: is he likely to be locked
up; is he likely to be the subject of the Control Order? The answer
is, nobody could tell you because it is entirely in the assessment
of the Intelligence Services. Just as you do not know what it
is they are saying against you, neither do you know what they
could say against you; you cannot make that assessment. I think
it is necessary for Parliament to be questioning that, as well
as those who are acting for the accused persons.
Martin Chamberlain: I just want
to return to the question you asked a moment ago, Mr Bottomley.
The evidence that nine of the current Special Advocates put in
did address at the end three issues as to the way in which SIAC
looks at and deals with evidence. The purpose of that evidence
(the evidence we submitted) was not to make any particular submission
or suggestion as to what the appropriate role was; it was simply
to draw attention to three important features of the way that
SIAC works. I think the importance of those features is emphasised
by the discussion there has been very recently about judicial
control in relation to the new proposed Control Orders, because
one suggestion which has been made is that the Control Orders
will be fine as long as they are subject to judicial review. That
is a rather broad term that has been used. Part of the purpose
of this evidence is to simply focus discussion on what exactly
judicial review means in this particular context. We have looked
at three particular aspects: standard of proof—
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