Procedural safeguards and due process
rights 4: Role of the special advocate, and equality of arms between
the detainee and the State in relation to 'closed' material
51. There is one area in which the procedure before
SIAC is of questionable fairness. This relates to the treatment
of intelligence-derived information on national security matters.
The Act adopted a compromise between fully protecting the right
of a detainee to know the evidence against him or her, reflected
in the principle of equality of arms under ECHR Article 6.1, and
protecting the public interest in ensuring that information about
intelligence operations does not fall into terrorist hands. The
compromise took the form of appointing a special advocate, with
appropriate security clearance, who would be allowed to see the
'closed' information put before SIAC and make submissions in order
to safeguard the interests of the detainee. However, the special
advocate is not normally permitted to take instructions from the
detainee or his or her solicitors after seeing the 'closed' information,
and the detainee will not be present when the 'closed' information
is discussed in SIAC. The special advocate may apply to SIAC for
permission to discuss the information with the detainee, but no
criteria are provided for deciding such applications.
The Law Society, in its evidence to the committee of Privy Councillors
appointed under section 122 of the ATCS Act, has drawn particular
attention to the difficulties facing a detainee in dealing with
the assertions of the Secretary of State in a meaningful manner
when the Secretary of State is basing the assertions on 'closed'
52. Lord Carlile, too, has noted that the restrictions
on communication between the detainee (and his or her representatives)
and the special advocate put the detainee at a disadvantage, particularly
in relation to material derived from interception of communications.
In Lord Carlile's view, the inequality can be justified, if at
all, only by an overwhelming need to protect national security
during a public emergency threatening the life of the nation.
If the level of threat is reduced, a greater degree of procedural
equality should be restored as a priority.
At present, however, Lord Carlile has concluded that the special
advocate system 'works reasonably well to achieve its purpose
of assisting SIAC to reach decisions correct in fact and law.'
53. In the light of this, we accept that, for the
time being, the special advocate system may be the best way of
dealing with an inevitably unsatisfactory situation in relation
to 'closed' material. However, we endorse the view of Lord Carlile
that the inequality of arms between the State and the detainee
can be justified, if at all, only by an overwhelming need to protect
national security in circumstances falling within a valid derogation
under ECHR Article 15.
54. We therefore take the view that any piece
of evidential material should be classified as 'closed' only if
there are substantial grounds for thinking that making it available
to the detainee, or his or her legal advisers, would compromise
the effort to protect the public against the national emergency
that gave rise to the derogation under ECHR Article 15. We draw
this to the attention of each House.
55. If the Government satisfies each House that
this is how material is classified as 'open' or 'closed' for the
purposes of a SIAC hearing, we consider that each House could
properly conclude that, at the moment, the immediate threat of
terrorism justifies the inequality between detainee and the State
in relation to the treatment of 'closed' material, because the
special advocate system provides the best available (albeit not
wholly satisfactory) way at present of balancing irreconcilable
interests and rights at present.
Role of the special advocate on appeal
56. In our reports on the Bill, we concluded that
there might be situations in which a detainee could be at a particular
disadvantage on any appeal from SIAC, because there is no provision
for the special advocate to appear in the Court of Appeal or the
House of Lords. While noting suggestions in the Court of Appeal
for non-statutory ways of allowing an independent advocate to
appear, we took the view that there should be a statutory role
for the special advocate on appeal.
In the only case under the ATCS Act so far to be heard by the
Court of Appeal, the Court did not find it necessary to hear the
special advocate, because it decided the case on the basis of
open evidence alone. However, we remain of the view that it is
unsatisfactory for the Court of Appeal to refuse to hear submissions
from the special advocate who will have seen the closed material
at first instance, and might be able to make important points
on the basis of the closed evidence of which the detainee's representative
will be unaware. It should not be assumed that the 'closed' material
will always be entirely against the detainee.
57. We reiterate our view that, if the provisions
are to continue in force, fairness requires the appearance of
the special advocate in the Court of Appeal or House of Lords.
He or she should have the right to make any submissions (in the
absence of the detainee and the detainee's representatives if
necessary) that he or she thinks are appropriate in relation to
the 'closed' material.
Treatment and conditions of detention
58. In our view, it would be inappropriate to continue
to detain people if it is not possible to find places providing
proper conditions in which to accommodate them. These conditions
should take account of the facts that
- the detainees have not been charged with (much
less convicted of) any criminal offence;
- they are facing detention for a potentially unlimited
- they are being detained at least in part on account
of their political beliefs.
59. We are disturbed by Lord Carlile's account of
the conditions under which the detainees are currently held in
HMP Belmarsh, and, to a lesser extent, by the account of conditions
in HMP Woodhill.
We endorse his view that persons who have not been charged
with any offence should have that status reflected in the circumstances
of their detention, without compromising security. We draw this
to the attention of each House as a matter to be considered before
deciding whether to continue sections 21 to 23 of the ATCS Act
38 ATCS Act 2001, s. 27; Special Immigration Appeals
Commission (Procedure) Rules 1998, r. 7 Back
Anti-Terrorism, Crime and Security Act 2001 Review: A Memorandum
of Evidence from the Law Society to the Committee of Privy Councillors
(London: Law Society, 2002), pp. 9-10 Back
Lord Carlile's ATCS Act review, pp. 24-25, para. 4.28 Back
ibid., p. 26, para. 4.30 Back
ibid., p. 25, para. 4.30 Back
Second Report of Session 2001-02, Anti-Terrorism, Crime and
Security Bill, HL Paper 37/HC372, paras. 48-49; Fifth Report
of Session 2001-02, Anti-Terrorism, Crime and Security Bill,
HL Paper 51/HC 420, paras. 21-23 Back
Anti-terrorism, Crime and Security Act 2001, Part IV Section
28 Review by Lord Carlile of Berriew Q.C., pp. 30-35, para.