Examination of Witnesses (Questions 197-199)
RT HON
LORD GOLDSMITH
QC
8 MARCH 2005
Chairman: Attorney General, good morning
and welcome to this Committee. We are very glad to have you with
us. Before I start I would ask any colleagues to declare relevant
interests they might have.
Keith Vaz: I am a non-practising barrister
and my wife holds a part-time judicial appointment.
Ross Cranston: I am a barrister and Recorder.
Q197 Chairman: We started our work looking
at SIAC in its original purpose as part of the immigration law
but of course extended it obviously into SIAC's role in dealing
with the 2001 Act detainees, the Belmarsh detainees, and in the
course of it the situation arose that Special Advocate procedure
became a likely part of a whole new regime in the High Court and
the Court of Session in the High Court of Northern Ireland, under
the legislation which is currently having its bumpy ride through
the House of Lords. So if we could start by trying to go to the
heart of Special Advocate procedure. Given that a large number
of Special Advocates have expressed in their evidence to us their
concern about the difficulties of the procedure, the difficulties
of achieving fairness in it, do you think it can be improved or
in some way made into a process in which those taking part feel
that they have given the defendant or the applicant an opportunity
to rebut potentially false claims made against them?
Lord Goldsmith: Yes, I do. I think
there are two aspects of that. One is the question of principle
about having Special Advocates, and I think that this is the best
procedure that one can in principle find of being able robustly
to test closed material once one has taken the view that it ought
to be possible in certain circumstances to rely upon closed material.
If there is to be reliance on closed material, because that indicates
a threat to national security or safety, then it is extremely
important, it seems to me, that that material is tested as robustly
as one can do in the circumstances where it may not be possible
for that particular material to be disclosed to the person who
is affected by it. So I think in principle it is the best system
that we can devise and I can say something further about how we
came to the system, if that is helpful to the Committee. As to
whether or not the procedures can be improved, I believe they
can. I read with considerable interest the memorandum of evidence
which the Special Advocates put to this Committee, and indeed
the evidence which they gave, and I do believe that they do make
a number of important points about how the system has been operating,
and as a result of seeing that, I asked for work to be done on
what we could put together so as to meet those concerns. That
work has been going on, and indeed I met a number of the Special
Advocates myself yesterday, with the Treasury Solicitor and others
present, to talk about what we have in mind, and there are a number
of areas of improvement that I now want to put in place so as
to meet some of those concerns.
Q198 Chairman: Is not the essence of
any improvement summed up by what you said in your description?
How can a Special Advocate test something, other than on the basis
of his own personal speculation and his experience, if he cannot
check the facts with the person who is, not technically but in
practice, his client, to whom he cannot speak?
Lord Goldsmith: I do not think
that is right because I think that makes an assumption as to what
the nature of the material is which is being relied upon, that
it is always only of the nature of material which depends upon
specific instructions from the individual concerned about that
material. The Court of Appeal, for example, made the point in
one of the cases—I think it was M—that it was
plain that the way the Special Advocate had operated on that occasion
had had enormous impact on the case, and indeed that was the case,
if I have the right case, in which the Court of Appeal reversed
the Home Secretary's decision on the basis of an analysis of the
material upon which he was relying, as exposed by the Special
Advocate.
Q199 Chairman: It is obviously possible,
given the ability, skill and experience of Special Advocates,
but there must surely be circumstances where it is factual evidence
being brought forward—if there is no factual evidence there
would be no case going on at all—which is theoretically
open to challenge, and unless it is internally inconsistent—that
person is alleged to be in two places at the same time—then
he does not have that opportunity, unless he uses a procedure
which I gather has been very rarely used, in which he can ask
the judge for permission to put a particular point to the applicant.
Lord Goldsmith: He can do that.
I think that the way that the system can operate is, first of
all, that the Special Advocate, before seeing the closed material,
is fully entitled—and indeed I would say encouraged—to
speak to, let us call him the applicant or the person affected
and that person's lawyers to get as much information as he can
about both the nature of the case, which has been disclosed openly—and
some part of the case will have been disclosed openly—and
what the answer to that is, and as much as possible, about the
details of the individual so that when he gets to see the closed
material he will already have a very clear picture of what the
individual says he has been doing with his life, which he can
test and use against the closed material that is being put forward.
I do not think it is just a question of internal inconsistencies,
if somebody says somebody was in two places at the same time.
Quite a lot, for example, depends upon the correctness of inferences
perhaps to be drawn from particular material. I have not been
personally involved in any of the individual cases of any of the
detainees under the 2001 Act, so I do not speak about the details,
but I understand that it has been possible to test the strength
of the material simply by expert and intelligent cross-examination
of the witnesses, so that one can see from that whether the basis
upon which suspicion is formed (or if the Act ends up with having
a higher standard of proof than that), what that is based on.
So I think there is a lot to be done. I do not deny for a moment
that there will always be a point at which if there is a specific
allegation—for example, to take an extreme case, if the
reason for the Home Secretary's concern was intelligence—that
on a particular day at a particular meeting particular persons
agreed that they would carry out some terrorist atrocity, that
is plainly highly important information. The great difficulty
from the Home Secretary's point of view is, does he rely upon
that or not? If he does not rely upon it then that may mean that
people's lives are put at risk. If he does rely upon it and discloses
that what he actually knows is that meeting on that day, that
may inevitably compromise the source from which that information
comes. It may be someone under cover who was present and it may
be not that difficult to deduce that that is what it is. So on
the one hand you put at risk the lives of people who may be affected
if the intelligence is not relied upon; on the other hand, you
may put at risk not just the life of the person who is giving
you that information but also that person's ability or the ability
of the procedures you are relying upon to protect you from future
atrocities. In those circumstances it seems to me entirely right
that it should be possible somehow to rely upon that material,
but what I think would be wrong—which is what we used to
do—is to say that that material is relied upon but it is
not tested before a court. What used to happen, for example under
the 1974 Act, was that the Home Secretary received a report from
a Special Adviser which was not disclosed to anybody, so the court
is faced with the proposition saying, "The Home Secretary
has reached this conclusion on the basis of intelligence. He has
had some independent validation but we are not going to allow
you to test what it is."
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