Joint Committee On Human Rights

Joint Committee On Human Rights Nineteenth Report

6 Special Advocates

183. In a number of reports both we and our predecessor Committee have expressed concern about whether the use of Special Advocates in control order proceedings satisfies the basic requirements of a fair hearing, whether under Article 6(1) ECHR or the equally stringent common law.[127]

184. In our report on the first annual renewal of the control orders regime, in February 2006, for example, we reported that a procedure in which a person could be deprived of their liberty without having an opportunity to rebut the basis of the allegations against them was likely to be incompatible with a number of rights, including the right to a fair trial, the equality of arms, the presumption of innocence, the right to examine witnesses and the right of access to a court to challenge the lawfulness of detention.[128]

185. In our recent report on the second annual renewal of the control orders legislation, we reported that we remained doubtful whether the procedures for judicial supervision of control orders in the Prevention of Terrorism Act 2005 satisfied the most basic requirements of due process.[129] The Government, in its response to this Report, denied that the control order regime violates the right of controlled individuals to a fair trial or a fair hearing.[130] The compatibility of the control order regime with basic standards of due process, including Article 6(1) ECHR, is one of the issues in one of the conjoined appeals currently before the House of Lords. We make no comment about the case itself.

186. The system of Special Advocates is designed to strike a balance between the need to protect public safety on the one hand and the right of the individual to procedural fairness on the other. Under Article 6(1) of the ECHR, a "substantial measure of procedural justice" must be accorded to the individual. The Government's position is that the system of Special Advocates provides the substantial measure of procedural justice which is required by both human rights law and the common law of procedural fairness. The main concern about Special Advocates is whether they provide individuals with a sufficient opportunity to challenge information on the basis of which they are subjected to control orders. Special Advocates are not permitted to communicate with either the individual concerned or their lawyer about any matter connected with the proceedings once they have seen the closed material.

187. We decided to try to find out more from the Special Advocates themselves about exactly how closed proceedings work in practice, and in particular any concerns they have about that process, in order for us to be able to reach a more informed view as to whether special advocates provide "a substantial measure of procedural justice" and therefore whether proceedings before both SIAC and the High Court in control order proceedings are likely to be compatible with the minimum standards of due process.

188. We heard oral evidence from four special advocates, Nicholas Blake QC, Martin Chamberlain, Judith Farbey and Andy Nicol QC.[131] Between them, these four have experience of acting as Special Advocates in all of the fora in which Special Advocates are now used: the Special Immigration Appeals Commission ("SIAC"), both in deportation proceedings and in proceedings challenging detention under the now repealed Part IV of the Anti-Terrorism, Crime and Security Act 2001; the High Court in control order proceedings under the Prevention of Terrorism Act 2005; the Proscribed Organisations Appeals Commission ("POAC"); and the Parole Board.

189. The four Special Advocates from whom we heard made clear that they were not speaking as formal representatives of all Special Advocates, of whom there are about 40-50. However, they made clear that they were familiar with the views of the other Special Advocates and thought that the views that they expressed would be in accordance with those of the other Special Advocates.[132] We have no reason to believe that there is any significant difference of opinion amongst Special Advocates on these issues.

The function of Special Advocates

190. Special Advocates are appointed by the Law Officers to represent the interests of a party to certain proceedings in any of those proceedings from which that party and his legal representative are excluded.[133] Their functions are further defined by the relevant Procedure Rules of the Special Immigration Appeals Commission as being "to represent the interests of the appellant by (a) making submissions to the Commission at any hearing from which the appellant and any representative of his are excluded; (b) cross examining witnesses at any such hearings; and (c) making written representations to the Commission."[134]

191. Nick Blake QC explained that Special Advocates perform their function of promoting the interests of the appellant they represent in two ways. First, they seek to maximise disclosure to the individual concerned, by looking at the closed case to see whether there is anything which could be open material and also at what is not before SIAC or the court but which should be, such as exculpatory material, further investigations or other material which might tend to undermine the hypothesis against the individual concerned. Second, Special Advocates test the hypothesis against the person in the closed proceedings.

Concerns of the Special Advocates

192. We were concerned to find that the Special Advocates from whom we heard had a number of very serious reservations about the fairness of the system to the people whose interests they are appointed to represent. Indeed, we found their evidence most disquieting, as they portrayed a picture of a system in operation which is very far removed from what we would consider to be anything like a fair procedure. We were left in no doubt by their evidence that proceedings involving special advocates, as currently conducted, fail to afford a "substantial measure of procedural justice".

193. The Special Advocates were concerned about a number of features of the procedure. In this Report we concentrate on the main three:

— (1) the very limited disclosure of information to the individual;

— (2) the prohibition on communication between the special advocate and the person whose interests they represent once the special advocate has seen the closed material; and

— (3) the low standard of proof.

194. We consider each of these concerns in turn.

(1) DISCLOSURE

195. Individuals who are the subject of a control order are likely to have very little information disclosed to them and therefore have very limited opportunities to provide explanations which might rebut the allegations of their involvement in terrorism. We heard that there are cases where all the relevant material is "closed", i.e. there is no open material at all for the subject of the control order to see, and others where virtually all of the relevant material is closed.[135] Where the individual is given an open statement, he has no way of knowing whether the open statement that he is given represents 1% or 99% of the case against him. There is no obligation on the Secretary of State to provide a statement of the gist of the closed material. The Special Advocates often try to formulate a "gist" from the closed material which would be acceptable to the Secretary of State, and although this sometimes succeeds it is often completely unsuccessful.[136] As one Special Advocate put it, "gisting" is itself prevented if by giving a gist you can damage national security the same way.[137]

196. In addition to the lack of information disclosed to the individual concerned by the Secretary of State, we heard that there are various other obstacles to his finding out the precise nature of the allegations against him, even with the help of a Special Advocate. For example, when the court or the Commission is considering whether or not closed material should be open, there is no balancing of the interests of justice to the individual on the one hand against the public interest in non-disclosure on the other.[138] If there can be shown to be any public interest against disclosure, that is the end of the matter, because the court and the Commission are subject to an overriding duty, which is to ensure that information is not disclosed contrary to the public interest (which includes, but is not confined to, national security). In addition, the Special Advocates describe the Commission as being "zealous" in its compliance with this duty,[139] and the Secretary of State also takes a precautionary approach to treating material as being closed rather than open, even if there is only the slightest possibility that what is going to be disclosed will damage national security.[140]

197. We also heard that it is not uncommon for it to transpire that material which has been served as closed material by the Secretary of State is in fact available on the internet, but the Special Advocates' ability to track down such material is inevitably limited by their lack of support from Arabic speakers. Moreover, even the Special Advocates do not get to see everything they would like to see in order to be able to assess the reliability of the material which is relied on against the controlled person.[141]

198. We asked the Minister, Tony McNulty MP, whether the Government would consider imposing a new obligation on the Secretary of State always to provide a statement of the gist of the closed material, and although he agreed to look at the proposal he said that he remained sceptical about whether that would be an appropriate response because he thought the balance was about right now.[142]

199. Our consideration of the way in which the Special Advocates system operates in practice has confirmed our concerns about the difficulty a controlled person may have contesting the allegations made against him. In the absence of any requirement to provide the individual with even the gist of the case against him in the closed material, he is at the enormous disadvantage of not knowing what is alleged against him and therefore not only unable to provide explanations himself in the open hearing, but unable to provide any explanations to the Special Advocate whose task it is to represent his interests in the closed proceedings. We recommend that there be a clear statutory obligation on the Secretary of State always to provide a statement of the gist of the closed material. We also recommend that consideration be given urgently to allowing the court or Commission to carry out a balancing between the interests of justice and the risk to the public interest when deciding whether closed material should be disclosed.

(2) PROHIBITION ON COMMUNICATION WITH SPECIAL ADVOCATE

200. The most serious limitation on what Special Advocates can in practical terms do for the person whose interests they represent is the prohibition contained in the Procedure Rules which prevents any communication between the Special Advocate and the person concerned or their legal representative about any matter connected with the proceedings as soon as the Special Advocate has seen the closed material.[143] The Rules provide for SIAC or the High Court to give directions authorising communication in a particular case at the request of the Special Advocate,[144] but in practice this is very rarely used by the Special Advocates.

201. The Special Advocates told us that the prohibition of communication with the controlled person frequently limits the very essence of their function of protecting their interests, because the Special Advocate may have no idea what the real case is against the person until the start of the closed proceedings,[145] by which time it is too late to ask any questions of the controlled person to find out what explanations they might have. This was described as "extremely frustrating and counter-intuitive to the basic way that lawyers are used to doing their job". It was explained that the facility in the Rules to seek the Court's permission to consult with the controlled person was rarely used in practice, partly because such permission was unlikely to be forthcoming in practice if the purpose of the meeting was to discuss anything to do with the closed case, and partly because the Rules require any application for such permission to be served on the Secretary of State, which is not considered tactically desirable because of the risk that it might give away to the opposing party the parts of the closed evidence in relation to which the controlled person does not have an explanation.[146]

202. The Special Senate Committee of the Canadian Parliament on the Canadian Anti-Terrorism Act recently considered this question and recommended that Special Advocates be able to communicate with the party affected by the proceedings and his or her counsel, after receiving closed material and attending closed hearings, and that the Government establish clear guidelines and policies to ensure the secrecy of the information in the interests of national security.[147] The Commons Constitutional Affairs Committee, in its 2005 Report, similarly recommended that the Government reconsider its position on the question of contact between the appellant in SIAC proceedings and Special Advocates following the disclosure of closed material, and thought it should not be impossible to construct appropriate safeguards to ensure national security in such circumstances.

203. The Special Advocates told us that they would be better able to perform their function if there were a more relaxed regime concerning their contact with the controlled person. Although they recognised that devising the appropriate safeguards would be difficult, and it would place enormous responsibilities on the shoulders of Special Advocates not to disclose inadvertently matters, it ought to be possible to devise a means for doing so. It was suggested that the safeguards could include, for example, the presence of someone from the Special Advocates Support Unit taking a full record, possibly even tape recording these meetings, and it would probably include certain topics which might be more capable of being discussed than others.[148] The Special Advocates made clear that although this would place them in a difficult position, they were prepared to accept that responsibility.

204. In light of the Special Advocates' views on this important question, we asked the Minister why, if he was prepared to trust the Special Advocates to have access to the closed material, he was not prepared to trust their professional judgment and their expertise to decide what questions they can ask the controlled person, after having seen the closed material, without revealing anything which may be damaging to national security. He replied that it was not a question of trust, rather it was about placing undue burdens on the Special Advocates.[149] He pointed to the difficulties identified by the Special Advocates themselves in their evidence to us, to argue that there should be no change from the current position prohibiting any communication between the controlled person and the Special Advocate after the latter has seen the closed material.

205. In our view it is essential, if Special Advocates are to be able to perform their function, that there is greater opportunity than currently exists for communication between the Special Advocate and the controlled person. We were impressed by the preparedness of the Special Advocates to take responsibility for using their professional judgment to decide what they could or could not safely ask the controlled person after seeing the closed material. With appropriate guidance and safeguards, we think it is possible to relax the current prohibition whilst ensuring that sensitive national security information is not disclosed. We therefore recommend a relaxation of the current prohibition on any communication between the special advocate and the person concerned or their legal representative after the special advocate has seen the closed material.

(3) STANDARD OF PROOF

206. The Special Advocates have previously expressed concerns about the low standard of proof required in SIAC proceedings and also indicated that SIAC tends to defer very readily to national security assessments by the Security Services.

207. One of the Special Advocates told us that "the best way of describing sometimes what goes on in these closed sessions is not evidence proving a proposition, as you would do in a civil or criminal trial, by your best evidence or all the available evidence, but selected highlights of a plausible hypothesis, and responding to that is challenging."[150] He thought that if the Secretary of State is permitted to rely on material which would not generally be admissible in evidence (e.g. because it is second or third or fourth hand), the system could afford to be a little more robust in requiring SIAC or the court to be satisfied to a standard of "more probable than not". In other words, there should be a more robust test which requires a case to be put rather than "a plausible hypothesis".

208. We again raised this possibility with the Minister, in light of the Special Advocates' concerns, but he again disagreed, on the basis that he did not share the concerns of the Special Advocates about the fairness of the process.[151]

209. We recommend raising the standard of proof required in SIAC proceedings in light of the fundamental fairness concerns highlighted by the special advocates.

Conclusion

210. After listening to the evidence of the Special Advocates, we found it hard not to reach for well worn descriptions of it as "Kafkaesque" or like the Star Chamber. The Special Advocates agreed when it was put to them that, in light of the concerns they had raised, "the public should be left in absolutely no doubt that what is happening … has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system."[152] Indeed, we were left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against basic notions of fair play as the lay public would understand them.

211. One of the Special Advocates described their role strikingly in the following way:[153]

"I see it as mitigating the unfairness which is inherent in a system where the appellant, one party to the proceedings, does not know all the material that they are supposed to be meeting or answering. That is inherent. It is irreducible in the sense that, as long as the appellant does not know it, there is always going to be the fertile possibility that explanations or responses that could be given are not, because that material has not been disclosed to the only person who could provide them. The system of Special Advocates can never overcome that irreducible element of unfairness but, having accepted that, I think that the functions that we try to perform can at least mitigate it and is better than not having a system where there is a partisan representative."

212. The Minister in evidence to us said that he thought that the procedure is "as fair as it can be" given the exceptional circumstances. As one of the Special Advocates told us, however, "as fair as can be is not fair". The evidence of the Special Advocates has confirmed us in our previously expressed view that the Special Advocate system, as currently conducted, does not afford the individual the fair hearing, or the substantial measure of procedural justice, to which he or she is entitled under both the common law and human rights law. In short, as we heard in evidence, the system frustrates those who have been through it who do not feel they have had anything like a fair crack of the whip because they still do not really know the essence of the case against them.[154] In our view, the seriousness of the consequences of control order proceedings is such that the individuals concerned are entitled to a fair hearing according to objective and well established standards of due process. We regard the recommendations we have made above as the bare minimum that is required in order for the Special Advocate system to command the public confidence that is required.

127 See Ninth Report of Session 2004-05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61/HC 389 at para. 14. Back

128 JCHR Report on First Control Order Renewal (2006), at paras 69-78. Back

129 JCHR Report on Second Control Order Renewal (2007), at paras 30-38. Back

130 Fourteenth Report of Session 2006-07, Government Response to the Committee's Eighth Report of this Session, HL Paper 106/HC 539, at pp. 5-6. Back

131 Before giving evidence, the Special Advocates wrote to indicate certain areas of questioning which they would not be able to answer because of their ongoing professional obligations as active Special Advocates; see Ev 95. Back

132 Oral Evidence, 12 March 2007, Q 79. Back

133 Special Immigration Appeals Commission Act 1997, s. 6; Prevention of Terrorism Act 2005, Schedule, para. 7. Back

134 SIAC Procedure Rules 2003, r. 35; Civil Procedure Rules, Part 76, r. 76.24. Back

135 Oral evidence, 12 March 2007, Q46. Back

136 ibid, Q47. Back

137 ibid, Q63 (Nick Blake QC). Back

138 ibid, Q34. Back