Examination of Witnesses (Questions 200-219)
RT HON
LORD GOLDSMITH
QC
8 MARCH 2005
Q200 Chairman: What consequence under
the 1974 Act?
Lord Goldsmith: That was the Prevention
of Terrorism Act (Temporary Provisions) Act 1974, and we did the
same thing.
Q201 Chairman: I am trying to establish,
because I cannot remember, what was the consequence of the proceedings
that you have just described under the 1974 Act?
Lord Goldsmith: I believe I am
right in saying internment. And Exclusions Orders.
Chairman: Exclusion Orders? I was not
clear on that.
Q202 Mr Soley: The internment one came
from Northern Ireland and I think the same applied there. But
the Exclusion Order is what I think you are talking about; is
that correct?
Lord Goldsmith: That is absolutely
right
Q203 Chairman: They were part of the
1974 Act?
Lord Goldsmith: Yes.
Q204 Chairman: These procedures, which
have been used in SIAC, for what were originally immigration decisions,
and were indeed an improvement on the Home Secretary arbitrarily
making these decisions, are now to be imported into the High Court,
which has not operated this way before—the High Court has
had closed sessions. The sort of rules which are now envisaged
will be new and are presumably being worked on now. Are the Special
Advocates being brought into that discussion in the consultations
that you have described?
Lord Goldsmith: The meeting that
I had yesterday with the Special Advocates was specifically about
what package of improvements could be made, and I believe ought
to be made, so that they could play a part, the part which Parliament
decides should happen in the procedures which are being proposed
as a result of this Bill at the moment. So the answer is absolutely
yes.
Q205 Chairman: Are the improvements likely
to include a greater ability to bring in exculpatory material
than the system at present?
Lord Goldsmith: May I indicate
what I think the improvements will be and then deal specifically
with that? I think there are really six areas. First of all, widening
the pool from which Special Advocates are chosen; we need to widen
the pool and I intend therefore that we should take steps to do
that. Secondly, giving the applicants—I will continue to
call them that—the choice within those who are on the list
of counsel. Thirdly, giving them increased support from an instructing
solicitor. I accept the point that the Special Advocates have
made powerfully about that and so I have asked for procedures
to be put in place so that they do get substantive support on
the closed cases from solicitor or solicitors who are security
vetted so that they can handle that material. Fourthly, training,
and a package is now being devised for training for Special Advocates,
both to deal with open material and closed material. Fifthly,
a database. They make the point, and it seems to me a good point,
that at the moment they do not have a comprehensive view of important
judgments, decisions, arguments, which have taken place, although
they say that they have been passing them amongst each other on
a network basis. So I think a database of that material is right.
Sixthly, I think we need also to look at providing them with access
to expertise which will help them in understanding of and therefore
testing the material. There are some practical issues in relation
to that.
Q206 Chairman: All of those are supportive
improvements which we will come on to, and which you are quite
right in saying were put forward by Special Advocates themselves,
but none of them changes the procedure or the process or increases
the right of the Special Advocate in court—I say in court,
in SIAC—to insist, for example as I said earlier, that exculpatory
material is produced.
Lord Goldsmith: I am not sure
I really follow this point. I have seen it referred to and it
seems to me that there plainly is an obligation on the Secretary
of State to produce such exculpatory material as he has, and I
do not see why it is being said at the moment that he is not producing
that
Q207 Keith Vaz: Attorney General, why
has it taken you so long to meet the Special Advocates? You said
you met them yesterday. You appointed them some time ago and you
have been Attorney General now for two and a half years.
Lord Goldsmith: Nearly four years
Q208 Keith Vaz: It seems like two and
a half!
Lord Goldsmith: Sometimes it seems
like a lot longer! I have to say that I was not aware until I
saw the memorandum of evidence that they put into this Committee
of the detail of the concerns that they had about the procedure.
As soon as I saw that it seemed to me important to address that.
So that is in part the answer to the question. But, having seen
that, and having seen what they have said to this Committee I
thought it right to investigate what improvements could be made.
I asked for that to be done and I saw them yesterday. I just make
one point because at the time of the resignation of one or two
of them there were suggestions in the newspapers that I had been
speaking to the Special Advocates, which was not the case at all—I
did not speak to any of them.
Q209 Keith Vaz: The system has been operating
for eight years. You obviously read the Mail on Sunday
so you saw Ian MacDonald's resignation; he sent you a letter.
Lord Goldsmith: Yes.
Q210 Keith Vaz: So you were aware of
the problems before they gave evidence to the Select Committee.
You must have been aware that people like Gareth Peirce was calling
the system deceitful or that Neil Garnham was complaining that
it represented one man and a dog. You knew about all these things;
you have officials, clever, clever people at your officers' department,
and nobody picked this up before they gave evidence?
Lord Goldsmith: Let me deal with
those three things. The expression that Neil Garnham used—and
I have a great respect for Neil Garnham—I heard about and
saw it for the first time when I saw it in the evidence he gave
to this Committee. I make no criticism of him about that but that
is the first time I knew he was using that expression. The first
time I saw an expression by Gareth Peirce describing the system
as deceitful was when I saw her evidence. But of course that is
on an entirely different point, as I understand it, and I well
understand and have known for a long time that her attitude and
the attitude of others is that the procedure under the 2001 Act
was fatally flawed in her view, and indeed that was argued significantly
in court. I do not share that view. So far as Ian MacDonald's
views were concerned, which I did read about—and of course
he did explain them to me also in a letter—those were not,
as I understood them, about procedures for Special Advocates but
again about his objection to the system under the 2001 Act.
Q211 Keith Vaz: The alarm bells would
have rung, would they not? Alarm bells would have rung in your
mind and the people who live in Buckingham Gate and operate there,
that something was wrong, something was going wrong here and people
were concerned not just about the procedure but other issues.
Clearly you met them yesterday so you know that something is going
wrong.
Lord Goldsmith: I met them yesterday
because I asked for work to be done, measures were considered—and
indeed you know something about them because the Lord Chancellor
when he came was able to indicate where we were going in relation
to those—and I said that I thought it very important not
just to put forward a package which we thought was right, but
that there should be an opportunity for the Special Advocates
themselves to comment on it. It was for that reason I asked for
them to attend a meeting where the Treasury Solicitor was present
so that they could hear what it was and I could hear what they
had to say about it.
Q212 Keith Vaz: What was the turnout?
How many are there and how many came?
Lord Goldsmith: Nine out of thirteen
came.
Q213 Keith Vaz: Presumably you will see
the other people?
Lord Goldsmith: I will see anyone
who wants to see me. They were all invited.
Q214 Keith Vaz: The Lord Chancellor gave
evidence last week and announced a number of changes. Are those
the changes that you are referring to?
Lord Goldsmith: Yes, he was referring
to the changes that I had asked to be put in place; that is what
he was referring to.
Q215 Keith Vaz: So you had those changes
prior to the meeting yesterday?
Lord Goldsmith: I do not quite
understand what you mean—had the changes?
Q216 Keith Vaz: You said that there were
a number of points that were coming together.
Lord Goldsmith: Yes, absolutely.
Those were the changes that, having seen what the Special Advocates
were concerned about, I asked for work to be done and indeed indicated
the areas in which I thought improvements ought to be made, having
read what they said. That was then considered at official level
and the package was put together and it was presented to the Special
Advocates yesterday in my presence by the Treasury Solicitor and
discussed with them.
Q217 Keith Vaz: It is just that the issue
of consultation comes up now, does it not? We have had the concerns,
you have read the evidence, you have reacted quickly to this by
putting together a package; you then saw them yesterday. But where
does the element of consultation come in? Are you consulting them
about these changes or are these the changes that are going to
be implemented?
Lord Goldsmith: I absolutely did
consult them yesterday because what I did yesterday, we had an
open discussion and I asked the Treasury Solicitor—and there
were others there as well—to explain each of the elements
of improvement which were being proposed, and I invited comments
from Special Advocates there and, as you would expect, they were
very clear in their views; and, indeed, to some extent what I
have said this morning as to what I think the package ought to
be has changed as a result of my hearing what they said.
Q218 Keith Vaz: And now there is a new
package as a result of the meeting yesterday?
Lord Goldsmith: It is the package
I have indicated, yes, indicated this morning.
Q219 Keith Vaz: So that can be implemented
immediately or is there a time table or further consultation between
those who were not there at the meeting?
Lord Goldsmith: I think we can
get on and implement that.
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