LEGAL REPRESENTATION FOR DETAINEES
21. In our Second Report, we suggested that clause
27 of the Bill should make it clear that the special advocate,
appointed by the Commission to represent the interests of the
detainee in those parts of the hearing concerning national security
information which could not be divulged to the detainee or his
legal advisers, is able to appear before the Court of Appeal and
the House of Lords on appeal from the Commission.
In relation to this, the Home Secretary has said
... when the advocate ... is appointed for the particular
purposes of evidence that would not be admissible in other circumstances,
nothing precludes the representative nominated by the person concerned
from taking other aspects of the case, including appeal. That
person may also decide to nominate themselves as the advocate
and take the appeal to the Court of Appeal or to the House of
Lords if leave is given.
22. It is not clear to us whether this statement
made in the Commons is consistent with the reply given during
oral evidence to us.
We remain of the view that there may be situations in which the
detainee's opportunity to obtain a fair hearing in any appeal
from the Commission to the Court of Appeal or House of Lords might
be prejudiced by the absence of the special advocate, nominated
by the Commission to represent the detainee's interests in parts
of the hearing where the detainee and his own legal advisers cannot
be given relevant information or be present. When Secretary
of State for the Home Department v. Rehman (an appeal
by the Home Secretary from a decision of the Commission) was before
the Court of Appeal, Lord Woolf M.R., made the following comments
As it was possible that part of the hearing would
have to be in closed session, Mr. Nicholas Blake [the special
advocate who had been nominated by the Commission for the purposes
of its hearing] appeared at the request of the court. The Act
of 1997 makes no provision for a special advocate on an appeal.
However, it seemed to us that, if it was necessary for the court
in order to dispose justly of the appeal to hear submissions in
the absence of Mr. Rehman and his counsel, under the inherent
jurisdiction of the court, counsel instructed by the Treasury
Solicitor, with the agreement of the Attorney-General, would be
able to perform a similar role to a special advocate without the
advantage of statutory backing for this being done.
We note that no similar provision was made when the
case reached the House of Lords.
23. In our view, a safeguard which depends on
the discretionary exercise of the inherent jurisdiction of a court
which is normally regarded as having exclusively statutory powers,
and on the exercise of the discretion of the Treasury Solicitor
and the Attorney General, is less than totally reliable. We recognize
that all concerned will be public authorities, and so bound to
act in accordance with the applicant's rights under Article 5(4)
and Article 6 of the ECHR. However, we consider that the Bill
should be amended to make it clear that there is power to call
on the special advocate at any appeal from the Commission's decision,
in order to secure a fair hearing for the detainee. We accordingly
draw the matter to the attention of each House.