Examination of Witnesses (Questions 220-239)
RT HON
LORD GOLDSMITH
QC
8 MARCH 2005
Q220 Keith Vaz: As of today?
Lord Goldsmith: Yes. Start to
implement it, it in the sense—
Q221 Keith Vaz: As of yesterday.
Lord Goldsmith: Absolutely.
Q222 Keith Vaz: So you have a new package.
Going back to the point that you made, one of the six points was
widening the pool of those who have been appointed. How do you
make these appointments? How do you choose Nicholas Blake or any
of the other people?
Lord Goldsmith: The way it happened
was that the system grew, as I think the Committee will know,
out of what the European Court of Human Rights said in the Chahal
case, when they disapproved of the then system for dealing with
removals on non-conducive grounds—the three wise men system—and
so the Special Immigration Appeals Commission was set up and these
procedures were put in place. At that stage, so I understand,
the Treasury Solicitor identified a number of people who were
thought appropriate from experience, ability and integrity to
do this work. It was put to one of my predecessors as a list,
he approved that list and then those people had to be developed
vetted. The procedure then is that on an occasion when a Special
Advocate needs to be appointed the Treasury Solicitor makes a
recommendation to the Law Officers and that recommendation is
considered by the Law Officers. As I think you know, it seemed
to me better that in relation to the 2001 Act—because I
had a personal involvement in representing the Government in the
proceedings, although only in the derogation proceedings and not
in the individual ones, I did not want to play any part in the
selection of those advocates—it was the Solicitor General
who approved the recommendations.
Q223 Keith Vaz: So of the 13 how many
are from the ethnic minority community and how many are women?
Lord Goldsmith: I have to look
at the list.
Q224 Keith Vaz: And since you became
Attorney General you have not implemented any changes so far in
the appointment process?
Lord Goldsmith: In the appointment
process of Special Advocates for this purpose, no. There is another
group of Special Advocates where I have implemented changes. I
do not know if anybody wants me to talk about that?
Q225 Keith Vaz: You were giving us some
figures.
Lord Goldsmith: I can see one
woman, 12 men. I am not sure, I do not know each of these, but
I do not think there are any in here who are members of the ethnic
minority in that group.
Q226 Keith Vaz: So when you talk about
widening the pool, presumably only certain people can be appointed
anyway because it is not going to be by open competition; you
are not going to advertise in the Sunday Times, are you?
Lord Goldsmith: I will advertise
for people who want to do the work and are willing to do the work.
Q227 Keith Vaz: This will start now?
This is the new proposal, you will now advertise?
Lord Goldsmith: Yes, absolutely.
There is a resource limit on the number of people who can be selected
because they will have to go through the process of developed
vetting, which has resource implications, but I can look otherwise
for people who are willing to do the work.
Q228 Keith Vaz: I will end on this, that
one of the most serious charges Ian MacDonald made is the point
about the wider Asian community, particularly the Muslim community,
viewing this in some way as a pejorative system. Do you get any
sense of that?
Lord Goldsmith: I think that is
a much wider question, which I have not understood to have anything
at all to do with the system of Special Advocates. I understood
the point which has been made by others to be concerned with the
effect of the particular measures themselves in the 2001 Act and
indeed other measures or other actions and what impact that has
had on the views of, in particular, the Muslim community.
Q229 Keith Vaz: Have you replied to Mr
MacDonald's letter of resignation?
Lord Goldsmith: I replied on the
same day that I received his letter.
Q230 Chairman: You made a point a moment
ago about the use of Special Advocates in other contexts and elsewhere,
and there was something you wanted to tell us.
Lord Goldsmith: It is probably
helpful to fill in the complete picture because we tend to focus
at the moment on Special Advocates in the SIAC procedures, particularly
in the 2001 procedures. First of all, that is not the only place
where Special Advocates may be used. Where developed vetted Special
Advocates may be used includes other tribunals as well, such as
the POAC tribunal, which you know about. But there is another
category of cases which are essentially criminal cases where material
is being put to a judge by the prosecution, asking the judge that
that information be not disclosed to the defence on public interest
immunity grounds, and in those circumstances occasionally it is
necessary for me to appoint, at the request of the judge, a Special
Advocate in order to view that material and be present in those
hearings which otherwise are closed to the defendant, so as to
assist the judge in looking at that material. That was the subject
of a decision by the House of Lords in its judicial capacity in
a case called H and C, where they looked at that, looked
at the circumstances in which it took place and indeed the situation
for appointment of Special Advocates. In that situation I do not
have to find advocates who are developed vetted because it is
not normally a security issue, it is simply, for example, the
identity of informers
Q231 Chairman: That is a security issue,
is it not?
Lord Goldsmith: Not in the sense
that it needs someone who is developed vetted, not in that sense.
Q232 Chairman: That surprises me.
Lord Goldsmith: Not in the ordinary
criminal context of an informer—and I do not mean an intelligence
informer, I mean informers. Or it may be that a particular public
interest immunity may relate to the fact that the householder
has allowed his or her house to be used for observation, is it
necessary for their identification to be disclosed to the defendant?
That sort of thing. In those sorts of circumstances I have made
an arrangement with the Chairman of the Bar and leaders of the
circuit that, together with First Treasury Counsel, they would
identify people who they regarded as competent to do this work,
from whom a choice could then be made in a given case.
Q233 Chairman: That is a very specific
task; it is not like measuring the evidence by which the Home
Secretary has reached the conclusion.
Lord Goldsmith: It certainly is,
it is a different task, yes. I was answering Mr Vaz's question
about whether I had developed any procedures for appointing Special
Advocates and it was necessary to do so in that context because
that was a new area.
Q234 Ross Cranston: Attorney, you will
have seen criticism that there is a conflict of interest in your
appointment of Special Advocates.
Lord Goldsmith: Actually I have
not. Everyone who speaks about it says that there is not a conflict
of interest.
Q235 Ross Cranston: I do not think so
either on the basis that I suspect when you are making those appointments
you are doing it in a quasi-judicial capacity so there is not
a conflict.
Lord Goldsmith: Absolutely.
Q236 Ross Cranston: Can I ask you about
this because one point in that discussion that was put to us was
that the defendant—let us call the person the defendant—should
be able to choose from the panel, and I am wondering what your
thoughts on that are?
Lord Goldsmith: That is one of
the things I think that he should be able to do. There will be
some limitations again because it has to be limited to the panel
and there may be reasons why someone that they want to take from
the Panel cannot be available. For example, that person may now
be in a conflict of interest position because of having acted
in another case that received information which then makes it
difficult for that person to act in the new case. But subject
to that, yes, I think it should happen.
Q237 Ross Cranston: So the principle
that the person could have choice?
Lord Goldsmith: Yes.
Q238 Ross Cranston: Assuming that there
is a conflict, what about the notion of the court appointing Special
Advocates?
Lord Goldsmith: This actually
came up in the House of Lords case on the different sort of Special
Advocate where again in theory the same point can be made because
I am responsible for the prosecution service ultimately, and indeed
the judge at first instance had raised the question whether in
those circumstances it was appropriate for me to appoint the Special
Advocates. The House of Lords looked at that, and I am just searching
for the quotation that Lord Bingham provided to the Committee
said in terms—and this was not actually controversial in
the case, I am pleased to say—that they could not see any
better way of doing it in these appointments. They recognised,
as everyone else did, that the Attorney acted in a quasi-judicial
capacity and that there could be no doubt at all about the integrity
of the appointments that were being made.
Q239 Ross Cranston: It might be worse
if the court made them.
Lord Goldsmith: I should have
dealt with this, but I think there is a real problem if the court
does it and the whole point is that the court should be absolutely
even-handed between the parties, between the Secretary of State
and the applicant, and if the court has the responsibility of
appointing the advocate on one side then that is potentially a
problem.
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