HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
TAKEN BEFORE THE
Joint Committee on Human Rights
Wednesday 3 February 2010
MS GARETH PEIRCE and MR SEAN MCLOUGHLIN
and MR THOMAS DE LA MARE
USE OF THE TRANSCRIPT
Taken before the Joint Committee on Human Rights
Mr Andrew Dismore, in the Chair
Witnesses: Ms Gareth Peirce, Solicitor, Birnberg Peirce, and Mr Sean Mcloughlin, Solicitor, The Rights Partnership, gave evidence.
Q1 Chairman: Good afternoon, everybody.
This is an evidence session of the Joint Select Committee on Human
Rights looking at Counter‑terrorism Policy on Human Rights, and this
session is looking at the question of control orders in advance of the control
order renewal debate which will be taking place I understand probably
towards the end of the month. We are
joined for our first panel by Gareth Pierce, solicitor at Birnberg Pierce with
extensive experience of acting in terrorism cases, who has represented
a number of individuals subject to control orders, and Sean Mcloughlin,
who is a solicitor at The Rights Partnership in
Ms Peirce: Probably the primary sensation is of despair and of feeling utterly impotent in a situation to contest it, to cope with it, and to understand the implications, because it descends on the person and usually the family overnight and unexpectedly. To simply illustrate the extent of the despair, there was at one time in Belmarsh Prison in the healthcare section three men whom I represented, all of whom had made serious attempts on their lives, all under control orders, all of them imprisoned because they were in breach - a criminal offence - of the control order; all of whose wives had left them temporarily or permanently, and that statistic woke us up to the enormity, if we needed waking up, of the effect. It affects not merely the man - it has always been men up to this point - but his wife if he is married and his children, all of whom are subject to the same conditions. They are all debarred from having visitors, if that is a condition, unless they are cleared; there are prohibitions on the use of phones; an inhibition on arrangements for family meetings; and often what strikes particularly at the heart of those with anything up from seven year old children is the restriction on having a computer or the internet in their house because now, in this country, much of children's curriculum is based on use of the internet, so there are repeated situations where children have been in trouble at school because they - bright, academically high achieving children - have fallen by the wayside and been in trouble despite repeated requests to have access for the children, even in one case where the man could not read or write in English and was completely computer illiterate. So, in summary, the impact can be, and usually is, colossal on the person himself and his family.
Mr Mcloughlin: I echo Gareth's comments, the impact is massive on the whole family. One of the other aspects is that people under control orders are often told where they have to live. My clients came out of deportation proceedings, I am an immigration lawyer so I act for a number of individuals in deportation proceedings, and when those deportation proceedings were no longer sustainable and government lost the challenge, the individuals placed on control orders, and the families, have to up sticks and move to other areas, and that of course involves taking the children from schools, friends and communities, and that has had a massive impact certainly for my clients. For example, one client had children who were at a private school in Birmingham and doing very well there supported by a charity who paid for the fees, but in order for them to be reunited and cohabit together as a family they had to move elsewhere and that meant the children leaving that school, but it applies to all the families and all the clients I have had. The impact is horrendous and, of course, is so difficult for people to understand because of the scheme that people are put under control orders and are not told why in any great detail and then, of course, comes the challenge and our position trying to represent people who are in this predicament, but I should emphasise the daily impact on the clients and their family members is something which affects them every single day in so many different ways, and we have to deal with that. Our offices are so very busy because every time a client wants to go outside the boundary perhaps to visit us for an appointment, or to do something like attend a hospital appointment, everything has to be done by correspondence to get approval from the Secretary of State and from the Home Office, and they find that incredibly frustrating. Perhaps we will talk a little bit later about those issues and how problematic even those issues are for us.
Q2 Chairman: When we look at the independent review of Lord Carlile and all the Government statements they say that account is taken of the impact on the controlee and the family of the control order itself. Does that correspond with your experience?
Mr Mcloughlin: No, it does not. The control order is made and everything is else is as a consequence of that, so in our experience in dealing with the issues that arise for our clients and their family members it seems that these things are just managed as a result of the control order being made; they do not seem to feed into whether a control order should be made. These issues seem to be secondary, if not appearing further down the list, but they are real problems for our clients and their families.
Ms Peirce: I think
the box gets ticked where you have taken into account but what may have been
sent may have been extensive psychiatric reports about the whole family, child
psychology reports, reports of how children are bed‑wetting, reports of
how well‑behaved children become severely disturbed at school, and there
is a further growing use of a form of internal exile, which Sean
referred to, and that is not just in relation to people who are formally the
subject of immigration detention: it is being applied to British citizens who
have grown up, for instance, in east London all their lives, whose grandparents
are there, whose wife's grandparents are there, who are suddenly parachuted
into a place in Nottinghamshire, in Gloucestershire, where the man is told
from there on in he has to live there, that it is a modification of his
control order, and, to be frank, the women in this are treated with complete
contempt. It is as if they do not
exist. The man is told: "Your wife, if she works, can find another
job; she can join you if she wants to or she can stay in east
Q3 Chairman: Is it the norm for people to be moved to another location altogether, or are they the exceptions? You have mentioned two cases. We know at the moment, for example, there are twelve control orders extant. Would you have any idea how many of those twelve have resulted in removal to another part of the country?
Ms Peirce: I am thinking of five recently where there have either been removals or a notification of an immediate removal which has been challenged, but in the way that the courts are now dealing with it there has to be the modification before the challenge can be made, so an attempt to obtain an injunction in anticipation the courts have said was not an appropriate way to deal with it.
of Onslow: Lady Kennedy told me the other
day she was representing somebody and she used those words "internal exile",
which is something normally only applied to the Romanov Tzars in
Ms Peirce: I know the case you are referring to and in the end the court did not allow that person to be moved. It was a particularly extreme case where the person concerned had an exceptional and life‑threatening medical condition, and arguments were accepted that he and his wife needed to be within immediate range of their consultant treating doctors. But for that he might well - I think he would - have been moved to a very long distance away from the place where he had grown up.
Q5 Chairman: Coming on to some of the practical problems from your point of view as representatives of controlees, can you describe some of the difficulties you have experienced both in general terms of representation, in making appointments, for instance, and also specifically because of closed material?
Mr Mcloughlin: It is not rocket science, and the Committee is fully aware of how these things work. The evidence we get justifying the control order is limited, and for us to take instructions from a client to address the assertions is very difficult, and for that client to be able to respond in any meaningful way. In essence his evidence is given in a vacuum because he does not know quite a lot of the case that is being alleged against him. Equally the client will be suspicious of how any information he gives may be used, and clearly if you are trying to challenge an allegation against you the allegation needs to be made to you. That is not, as I say, rocket science, and it obviously builds the frustration for the clients and is frustrating for representatives such as ourselves trying to represent the client with limited information.
Ms Peirce: I think the process is so prolonged there is not an immediate remedy. Because of slow service of evidence, if it is a civil proceeding, then there is the interjection of special advocates, secret hearings - it is an extraordinarily prolonged process. There have been victories won in the courts but the interminable back and forth, back to the High Court after the House of Lords has decided in your favour, in the end breeds bleak cynicism, that whatever happens the goalposts will be moved. One man in particular was detained for three and a half years under the Anti‑Terrorism Crime and Security Act, one in the House of Lords once, one in the House of Lords twice on the basis that evidence derived from torture could not be used in his case, one in the European Court of Human Rights on the basis, relevant to this, that he had never had anything disclosed to him that was sufficient to provide due process; then was on a control order which is still in being today on the same evidence, the House of Lords having decided it was insufficient. That is a very long time to have won successive legal victories and yet remain in that position, and it does nothing to reassure those who are affected that the law, or the lawyers, can help them at all.
Mr Mcloughlin: Can I just add that a client of mine had his control order quashed because the Secretary of State was misled on the evidence presented when the control order was made, and Mr Justice Mitting quashed that control order. Two days or so before the judgment was handed down the Home Office made another control order, so for him he had a victory on the grave basis that the Secretary was misled as to the evidence, and yet he finds himself in exactly the same position, even though he succeeded, and life did not change for him. The same control order was made, the same conditions applied, and he then has to fight that second control order, again through the same proceedings. I should just add that his case was to be heard just after AF in the House of Lords, and so shortly before his hearing his record was revoked. Nevertheless, he spent all of that time having won once ‑‑
Q6 Chairman: How long was he under the control order, in total, from start to finish?
Mr Mcloughlin: I think it was April '08 and then the second control order was revoked in about June '09.
Q7 Chairman: So for 15 months or so he was under a control order?
Mr Mcloughlin: Yes, and he was none the wiser as to why he was on a control order, so that sense of frustration which we mentioned in the opening continues.
Q8 Chairman: Lord Carlile in his report says he has received no complaints from controlees or their lawyers about the procedures not working satisfactorily. Is that right? Have you not complained?
Ms Peirce: I do not think I have complained to Lord Carlile; I do not share my reasons for that with this Committee. We complain daily in the courts, where we are meant to be complaining: we complain to the Treasury solicitors; we complain to the Home Office; we in every way seek to raise the immediate circumstances.
Mr Mcloughlin: Can I add that in terms of the modification appeals, and I read Lord Carlile's comments about the lack of complaints to him, Lord Carlile did visit the clients I acted for on control orders, but one of the clients made an application for various conditions of his control orders to be varied to include attending a college course and having a particular dentist where his wife and children were registered just outside his boundary and it was not a great distance but all of these requests were refused, so we lodged an appeal to bring it before the court and the appeal was lodged, I recall, in February of last year and the court heard the case in July. Now, of course, because the procedures are so prolonged in terms of the Special Advocates being involved and hearings, he waited so many months for that hearing to come up to have those issues adjudicated upon that, of course, the college course was done and dusted and he presumably found another dentist in the interim, so the court procedures are not swift and that is a major failing.
Q9 Chairman: Have you made a complaint to Lord Carlile?
Mr Mcloughlin: No. I have not spoken to Lord Carlile, nor has he spoken to me.
Q10 Chairman: I would like to come back to Gareth, because she left her coat tail trailing a bit there. Is the problem here you have no confidence in Lord Carlile as an independent adjudicator? Basically has he been in the job too long?
Ms Peirce: I think at the beginning, a long time ago, when the Anti‑Terrorism Crime and Security Act came into force Lord Carlile was in appointment then, newly in appointment, I think, but there was also a Privy Council Committee in parallel, and this is not a comment on Lord Carlile but I think it is inappropriate perhaps for one person to have a sustained sole application after the Privy Council has put in a trenchant criticism of the Anti‑Terrorism Crime and Security Act - very thoughtful and they came to SIAC hearings and so on - but then the Government abolished their existence in that supervisory role, so that is said regardless of Lord Carlile as an individual.
Mr Mcloughlin: I am too busy getting on with my daily practice really to worry about who is monitoring it. It does not change the situation. All my clients' control orders have been revoked so it is not really for me to make waves about who is reviewing it. I represent my clients to the best of my ability.
Q11 Chairman: The reason I raise it is that one of the concerns I have is that if somebody does such a very important and sensitive job for so long inevitably they can lose some of their objectivity because they are dealing with those same issues and the same people in the security services all the time, and I just wondered if such objectivity after such a long period of time may have worn a little thin.
Ms Peirce: I think there is a history of perhaps frank but unfortunate assessments, beginning with those who were interned, in which Lord Carlile had stated: "I have seen everything that is in the secret evidence, I am completely satisfied the Home Secretary appropriately certificated the individual", even in cases where SIAC itself came to an opposite view, in cases where ultimately the House of Lords condemned the process twice, where the European Court said "This was utterly inadequate information", and now we are into a different regime of control orders and Lord Carlile is again making assessments of the evidence and giving a view as to whether they are justified, and those who are on the receiving end of that simply see that as an extension of an unfairness when they do not know the position.
Q12 Baroness Falkner of Margravine: What I would like to hear from you is, leaving aside the person Lord Carlile, whether you think that there is a danger, in areas where public information is not available, that any individual who does that job might tend to "go native" after a period of time? In other sensitive areas of life you have term limits. Do you think that a term limit would be a good idea in terms of an independent reviewer? That somebody coming every few years fresh to the role with the accumulation of new findings behind them might be more beneficial in a role than someone who has been doing it for quite long?
Ms Peirce: One of the particular vices here is the secret nature of the evidence; the second is the arbitrariness of the decision, and the third is that, to the rest of us and to the person involved, it seems like a sledge hammer to crack a nut. Simply because we represent individuals to the best of our ability does not mean that we are necessarily utterly naive about what is alleged, and we can see clearly in case after case it is inappropriate, but Lord Carlile gives a further veneer to the Government's in our view exercise of arbitrary measures --
Q13 Baroness Falkner of Margravine: Can we refer to him as the "independent reviewer" rather than in person? Would any independent reviewer fall into that trap, do you think?
Ms Peirce: I think it has become more significant. There was always an independent reviewer of terrorism legislation, it was Lord Lloyd and I have forgotten who his predecessor was, and they were very much looking in a much more restricted way at the ways in which the legislation itself was working. This has become far more significant. This is effectively social control of mechanisms that appear to us incredibly petty on a daily basis, petty interferences that seem to have nothing to do with national security, whether a person comes to our office and they walk on the right side of the street to get there or not, and our work is dealing with these restrictions that seem inappropriate. It has to be a wider spread of personnel reviewing it, I think. The ability to have a body that is independent, maybe bringing in psychiatrists or social workers who have an extended understanding of social control.
Q14 Earl of Onslow: Having read your essay in the London Book Review I must admit I came out of it feeling faintly sick about some of the things you told me about. I get the impression from what you just said that what is happening is that a game of cat and mouse is being played, and if somebody wins a victory it is not even pyrrhic. It goes into the damage done and, I thought very accurately, the folklore. I also got the impression that you are saying that Lord Carlile possibly clothes the nakedness of government. I am interested that you told me - which I did not know and possibly should have done - that Lord Lloyd of Berwick was the previous reviewer, and I trust Lord Lloyd of Berwick with my right arm because he understands the grandeur of the liberty of the subject which is something which appeals to me. I was quite shocked by Lord Carlile voting for 42 days, for instance -
Baroness Falkner of Margravine: I do not think he voted. He spoke for, but did not vote.
Q15 Earl of Onslow: The question I am going to ask - and I have almost answered it myself - is this. In practice have any of the court decisions upholding controlees' arguments helped to make the process fairer from the controlees' point of view?
Ms Peirce: In theory the requirement that there be an irreducible minimum of information is, of course, important, but even so you are left with a very impoverished procedure for such a restriction on a person's life which consumes and takes over, and therefore the victories in the courts are on procedural issues - critically important - not on the impact. In fact, however strong the arguments and the evidence that one has that this is destroying someone, he is going to kill himself, his life is in danger, those arguments do not win in the courts as being disproportionate to the measures and the reasons given for them. So in that sense very little is felt by the person on the receiving end.
Q16 Earl of Onslow: I think I read in these papers about somebody who is deprived of money where even the children had to account for the price and cost of an apple. Was that in here?
Ms Peirce: Yes, but that is a different form of legislation. It is the assets freezing legislation.
Chairman: We are not dealing with that today.
Q17 Earl of Onslow: I am sorry. The reason I brought it up was it struck me as being a pretty repellent way of behaving.
Ms Peirce: It is pretty repellent. The Supreme Court struck it down a couple of days ago but I understand new legislation is being rushed forward.
Q18 Earl of Onslow: To re‑introduce it?
Ms Peirce: I believe so.
Q19 Earl of Onslow: What difference has the House of Lords decision in AF made in practice?
Ms Peirce: In all cases in which it applied the arguments are still going on in court in different ways. Some control orders have been revoked; some have been quashed. The Home Office says quashing should not apply because that has a completely retrospective effect which means they were always unlawful, so there is still further argument. Some of those people are still under control orders because the Home Office has sought a different basis on which to impose them.
Q20 Earl of Onslow: So you are back to the cat and mouse game again?
Ms Peirce: We are entirely in the same game.
Mr Mcloughlin: All of the control orders on the three clients that I had have now been revoked, one last month which was the last one, so in that sense for my part it has had an impact. Whether the Home Office will sit in front of the Committee and say it was because of AF that they revoked them, or some other exit strategy that they were always planning towards, I do not know.
Q21 Earl of Onslow: Is the system of control orders sustainable following the decision of the House of Lords in AF? Is the whole system of control orders on its last legs, or should it be?
Ms Peirce: It was abusive legislation stampeded through Parliament in a rush in February/March 2005 when internment came to an end. It was deployed for that bunch of foreign nationals only. It has been subject to sustained intellectual attack primarily on procedural grounds and, yes, it is on the rocks, but the Home Office clings to the wreckage and it will construct some other vessel out of it, or it will attempt to.
Q22 Chairman: That begs this question. You
said earlier on that you are not naïve, and we may be dealing with some
dangerous people, we may not. What is
the alternative to control orders? We
know we cannot lock them up indefinitely because that was a Belmarsh
decision; we know we cannot, if they are foreign nationals, remove them if they
are going to face torture and if they are
Ms Peirce: The primary weapon, if one calls it that, would simply be the common sense approach to go to a person and say: "We suspect that you are involved in something that might be linked to terrorist activity; we are telling you this is what we suspect; you will appreciate that we are going to be keeping our eye on you; perhaps you would like to talk about it, let's talk", and if you have a reasonable suspicion you arrest the person and question them, and the police are entitled to do that. Even if you do not have evidence that you ultimately can use in court, you can detain someone for the purpose of questioning. The interesting aspect of this is almost none of these men has ever been questioned or spoken to, and I believe many of them would welcome it and say: "That is exactly what we would have liked, that someone would have come to us", and surely, if you are tipped off that you are under suspicion, you will be very careful about it. The other point I perhaps should mention, which has not to the best of my knowledge happened in all the cases at all, is that there is a concern in some cases that it is a kind of coercion. More than one person has reported being told: "You know, you could make all of this go away if you co‑operated and gave information", and I know specifically and directly from one such encounter on which I was called upon to be involved that it was very much: "We want something, you can give it, and then the control order can go away", and that is coercive and improper use.
Q23 Chairman: Completely improper, if that is the case. Presumably from what you are saying, then, you would see in the extreme case where you could not prosecute surveillance as being the alternative?
Ms Peirce: Surveillance but simultaneously with informing someone.
Q24 Chairman: Of course, yes. I am assuming that that happened and there were still suspicions after all of that. Would surveillance be an alternative in your view?
Ms Peirce: Yes. In fact, surveillance, to be blunt, is exercised on these people, and if someone strays outside the boundary or breaches a condition, the term has been used on arrest "Gotcha".
Mr Mcloughlin: In paragraph 51 of Lord Carlile's report he says that control orders are a targeted tool of last resort used to plug what is perceived to be a gap in the absence of viable alternatives. For my part that is a political illusion because there is no hiatus between guilty and innocent, and that is where we, as lawyers, come from but, as I say, I am an immigration lawyer and Gareth is much more experienced in criminal law than me, so surveillance is the answer in my view, and I note from the Secretary of State's memo in the final paragraph, paragraph 85, that the cost issues are set out, and it says that the control order regime has cost £10.8 million to administer with legal costs associated with that process of over £8 million. If you cut out the lawyers then the spend is £3 million on whatever it is that they do, and surely if that money can be spent, or I suspect less money can be spent, on surveillance, then, as Gareth says, people know they are under surveillance and it has the same effect and does not create this political problem and imposition. Many people are concerned about the whole regime. I penned some figures, and I am not an accountant, but if you have 12 control orders outstanding and you have three officers or people on 8‑hour shifts monitoring these people full‑time, just following them round like a lost dog, then you need 36 staff and even if you pay them £50,000 a year, which I am sure will raise an eyebrow or two, that is around £2 million a year, so if you have two people following them it will be around £4 million, and obviously £3 million is the spend at the moment excluding legal costs. I do not know if those figures mean anything at all but the point is that huge amounts of money at the time are being thrown at the legal issues and just under 50 control orders have been made with great political debate on these issues, and I think that it is a hammer to crack a nut and there are other ways. Can I just say that the Secretary of State in his conclusion, paragraph 85, said that surveillance would be considerably more expensive, but he does not give any figures or explain how or why that might be. There are many things I do not know about in that arena, of course, but that information could at least inform the Committee as to whether surveillance is a possible alternative.
Q25 Chairman: You are ahead of me because that was the next point I was going to put to you and, in fact, I raised this with the Prime Minister yesterday in the Liaison Committee, suggesting that the amount spent on lawyers could be better spent on police officers.
Mr Mcloughlin: Absolutely.
Q26 Chairman: And, of course, that £8 million you refer to is just the cost to the Home Office of defending the cases brought where the meter is still running.
Mr Mcloughlin: In that case then there are the Home Office costs. Then there are all the legal aid costs involved and the court costs, which must be significant with all of the judicial challenges through the administrative court, the Court of Appeal and the Supreme Court, so the spend must be huge and maybe the Committee would be interested to find out what the overall spend is.
Q27 Chairman: We have been trying to.
Mr Mcloughlin: Good luck.
Q28 Chairman: We have not got the answers yet but we have been trying to find out. Can I go back to reviewing the material? Did the Home Secretary carry out a thorough review of all material relied on for the existing control orders to ascertain whether they needed to have further disclosure after the AF case?
Mr Mcloughlin: You are asking if the Secretary of State's response deals with everything?
Q29 Chairman: Yes.
Mr Mcloughlin: For my part it says what I expected it to say. One thing I do take issue with is the reliance on the fact that there is rigorous judicial scrutiny of the control order regime through the challenges. That is, I am afraid, misleading to the lay reader perhaps because as a lawyer representing people in these proceedings you have got one arm tied behind your back, and special advocates, whom you will hear from later, in my view have two arms tied behind their backs. Although the court can do everything within their remit it does not mean objectively that the scrutiny is rigorous because the whole case is premised on evidence we do not see and we cannot meet.
Q30 Chairman: Are you getting anything more disclosed in practice?
Ms Peirce: No.
Mr Mcloughlin: I will be corrected but I do not think I ever have had.
Q31 Chairman: Gareth has given us a very clear answer to that, unqualified.
Mr Mcloughlin: The special advocates will correct me if I am wrong but I do not recall getting anything of any substance through the procedures which allow the special advocates to assess the material and try and argue that X, Y and Z should be made available to the open lawyers, as we are now called. We used to be called lawyers; now we are called open lawyers, and closed lawyers behind us. Nothing of any substance has come from that process and, whilst they will do their best, the special advocates, it is meaningless.
Q32 Chairman: It is probably a better question to put to them. I think we have finished our questions. Is there anything you want to add to anything you have said to us?
Ms Peirce: No, thank you.
Mr Mcloughlin: No, thank you.
Earl of Onslow: Again, going back to your book and article, I was rather struck by the saying of the prophet Mohammed, and I wrote it down, "Fight the unbelievers with your wealth, yourselves and your tongues". Can you tell me what is the difference between that and the Christian hymn Fight the Good Fight with All Thy Might?
Chairman: I do not think that is a question for the witnesses.
Earl of Onslow: It is. If people are attacking people for saying that, you should attack Christians for saying exactly the same thing.
Chairman: I think that is a debating point, not one for the witnesses. Thank you very much.
Witnesses: Ms Helen Mountfield, Barrister, Matrix Chambers, Mr Angus McCullough, Barrister, One Crown Office Row, and Mr Thomas de la Mare, Barrister, Blackstone Chambers, gave evidence.
Q33 Chairman: We have now been joined by our second panel of witnesses, Helen Mountfield, who is a practising barrister at Matrix Chambers and acts as special advocate for control order cases, Angus McCullough, who is a barrister at One Crown Office Row, Special Advocate, and Thomas de la Mare, a barrister from Blackstone Chambers, also an experienced Special Advocate. Welcome to all three of you; thank you for coming. Is there anything you would like to say before we start?
Mr McCullough: No, I do not think so, thank you, except thank you for inviting us.
Q34 Chairman: Perhaps I can start where I left off with the solicitors. Do you think the Home Office carried out a thorough review of all the material which had been relied on for the existing control orders to ascertain whether they should give you further disclosure?
Mr McCullough: I think it is probably difficult to comment from the perspective of an individual special advocate who sees only the small number of cases that one is involved in personally. Of the three cases that found their way to the House of Lords in the AF decisions, two were abandoned by the Government, the control order was abandoned, and the third the Government is seeking to maintain, and the substantive hearing to determine that has yet to occur. In terms of the review of the material the Government seems to take an approach that all the closed material is relied upon in seeking to obtain a control order and they await the decision of the courts with the involvement of the special advocates as to what it is they can continue to rely on to uphold that control order in the courts, which - and it is a slightly oblique way of answering your question - seems, at least from my individual perspective, to be the approach that has been taken following AF.
Ms Mountfield: I have one outstanding post-AF control order, and when AF was decided a letter was written to say that the evidence would be reviewed to consider what ought to be made open. If that happened I am slightly surprised. I would say a minimalist approach was taken if it did happen, but what in fact then happened was that that control order was revoked and replaced by a so-called light touch control order. There has still been no more disclosure. It is being argued that you do not need disclosure, that AF does not apply to more limited controls, and that argument failed in the High Court and is going to the Court of Appeal.
Mr de la Mare: I was involved in one of the appeals that went to the House of Lords and then was remitted to the High Court afterwards. My impression was that the Secretary of State's attitude was that it was for the special advocates to make the running as to what should be disclosed in relation to the evidence base and not primarily for the Secretary of State to review the evidence base and make proposals with a view to disclosing certain information. Indeed, the position was yet more extreme. The Secretary of State was unwilling to comment as to whether or not they would exercise their decision to withdraw the evidence and the allegations in question. One will need to make a decision upon that until such time as the court has ruled finally as to the totality of the evidence and what should be disclosed, and only then would the Secretary of State decide whether or not to proceed with the case at all, whether or not to drop certain allegations or whether or not to make disclosure. As it turned out, after an extensive review by the special advocate of the evidence and submissions made in relation to that, the Secretary of State then decided that he would drop the control order in question. Their attitude is, "You make the running".
Q35 Mr Sharma: How has the decision of the House of Lords in AF affected the Government's position in current control order proceedings?
Mr McCullough: I think the proof of the pudding is still being eaten, as it were. A number of the control orders have been voluntarily revoked by the Government, a number have been quashed or revoked by the courts, and a number are still awaiting the court's determination. As far as I am aware only one control order since the House of Lords decision in AF has been upheld by the courts in the face of a challenge.
Ms Mountfield: What AF decided was that somebody had the right to know the essence of
the case against them. What that means
in practice is quite difficult to determine in an individual case and I think
the Home Office has taken quite a minimalist view, headline allegations only,
"You are involved in terrorist fund-raising", or whatever, to take a
hypothetical example. If you look at the
decision of the European Court of Human Rights and those in the
Mr de la Mare: I think it is important to understand that control order cases do not fit one particular type. They are potentially very different. At one end of the spectrum you have a case which is effectively a glorified intelligence assessment based upon a disparate series of sources and information intended to build a picture. That is described in various open materials as "mosaic" type cases. There is no centrepiece necessarily to the evidence against an individual in those types of cases. It is a variety of different strands woven together to build a case. At the other end of the spectrum you have cases that are effectively proxies for criminal prosecution where there may be one grandstand allegation and effectively that allegation may even be substantially in open and you have evidence that can or cannot be adduced for those reasons. My judgment is that mosaic type cases are the ones that are being affected most by the House of Lords judgment because in those cases each little chink of the mosaic is an allegation and the logic of the House of Lords ruling is that each bit of that mosaic therefore must be disclosed in some form, whereas the cases that are proxies for criminal prosecutions, and I believe AF is a case nearer that end of the spectrum, it is possible to get closer to saying, "Disclose the allegations but not the evidence underpinning it". It is very important to realise that different types of case are structured in different ways and may lead to different conclusions under the AF analysis.
Q36 Chairman: What proportion of the control orders do you think are these jigsaw/mosaic type things and what proportion are the one big thing that is the surrogate prosecution?
Mr de la Mare: That is very difficult to answer, being myself only a little chink in the wider mosaic. It is a very impressionistic matter but I suspect the great preponderance of cases tend to be mosaic cases rather than proxy criminal prosecution cases.
Q37 Mr Sharma: Is the Government's approach to disclosure since the decision in AF in keeping with the spirit of the decision in your view?
Mr McCullough: It is probably no surprise that the Government seeks to restrict the impact of AF and the arguments in disclosure hearings whereas the special advocates argue for a broad approach and as much detail as possible requiring to be disclosed if an allegation is to be relied upon, so I suspect the Government would say that they are reflecting the true spirit of the judgment and, likewise, those on the other side of the argument say they are as well, so it is probably a debate. No is the straight answer to your question from the point of view of the special advocates.
Q38 Chairman: And those across the table?
Ms Mountfield: Yes.
Q39 Mr Sharma: Consensus there. Can you explain what a "light touch control order" is?
Ms Mountfield: An ordinary control order tends to have somebody required to remain at home for perhaps between nine and 13 hours a day, not to have internet access, not to have visitors without prior approval and so on. The light touch control orders no longer have that house arrest element in them but they restrict people from travelling abroad, from having more than one mobile telephone, from going away from home for a night without giving 48 hours' notice, that sort of control.
Q40 Baroness Falkner of Margravine: Are they allowed to have visitors in light touch regimes?
Ms Mountfield: I cannot immediately remember and I am not sure I am aware of all the light touch control orders. They are less restrictive but certainly in my view still sufficiently restrictive to have a serious effect on people's everyday lives.
Q41 Chairman: I think it was you, Angus, who said that you had a control order that was dropped after AF.
Mr McCullough: I think it was Tom.
Q42 Chairman: Is that right?
Mr de la Mare: Correct.
Q43 Chairman: We know that a couple were dropped after AF altogether. What happened to the two controlees concerned? Are they simply not subject to any controls at all or are they subject to surveillance?
Mr de la Mare: I must admit I am not entirely au fait with the current position. There has been a fairly protracted debate before Mr Justice Silber as to whether or not the order in question should be technically revoked or quashed. A similar debate has occurred in another case. That has implications for any potential criminal proceedings brought in relation to alleged breaches of the control order and it may have cost implications. I may be incorrect but I believe that the control order has simply been revoked and nothing put in its place.
Q44 Chairman: So as far as these two were concerned, if they were a threat to public safety they are not subject to control orders. They are still a threat to public safety, I suppose, with no controls over them, so it begs the question of whether the control order was necessary in the first place. Could I ask you how AF is being used in the lower courts now because you have got this rather bizarre comparison between what the law says in the statute and how the law is applied by the courts, which seem to be mutually exclusive? Is the approach of the lower courts creating any practical problems for you?
Mr McCullough: I have already alluded to the Government's basic approach, which is to rely on everything without taking into account AF and then leave it to the courts to tell them what they are allowed to rely upon as a result of AF. I think it is fair to say that the court's approach is still bedding down and no universal approach as yet has emerged. There is a strand of judicial thinking which applies what has been termed the iterative approach whereby a bit of disclosure is given to a controlled person, the idea being that that may be enough for them to respond effectively and give effective instructions to their own lawyers and the special advocates, and if it turns out that it is not then to give a bit more, which I think leads to two difficulties. One is of a practical nature, which is that there is not really time in the already protracted court procedure to accommodate an iterative approach, and you find yourself up at the substantive hearing having then to re-address disclosure issues. The second difficulty is probably one of principle, as to whether it is really fair to adopt this iterative approach, to require a controlled person to respond to part of the case before letting him know the full part that he would ultimately be entitled to. I think those are the sorts of practical problems that are currently being grappled with.
Mr de la Mare: It is worth emphasising that the protracted history of these cases means that there are certain difficulties in interpreting what is happening in the particular cases for this reason. Almost all of the cases which have been remitted for reconsideration had at an earlier stage contested hearings at which, either under the pre-MB test or under the MB test, the question was first asked, "Can this material be disclosed without there being damage to the public interest?", and invariably the answer in relation to the remaining material is that it cannot be disclosed without damage to the public interest in the view of the Secretary of State. Then, when one comes to apply the AF test, which is a separate, over-layering test of fairness that seeks to say, "Notwithstanding the damage to public interest that would be caused by this material, does fairness require it to be disclosed?". The inevitable consequence when the court says, "Yes, it must be disclosed", is that the Secretary of State withdraws the allegation in question rather than disclosing material which will cause damage to the public interest. That is why, from the perspective of a controlee, you have this scenario where it seems as if nothing is happening, and indeed from their perspective nothing is happening because what is the most that the special advocates achieve is a reduction of the evidence base rather than concrete disclosure of the allegations in question to the controlee, and in the most extreme example the net result is the evidence base collapses and the order is revoked. One can well see why such a process, which is potentially very protracted, particularly if the iterative approach is adopted, leads to frustration from the perspective of people outside the process. They see nothing concrete happening.
Q45 Baroness Falkner of Margravine: What you say is rather depressing, but, anyway, staying with the procedural rules, has the rule change which permits special advocates to adduce evidence made any difference in practice to your ability to ensure fairness? You have more or less all touched on that but is there anything else you want to add to that?
Mr McCullough: The answer is a resounding no. No special advocate, as far as I am aware, in any case, notwithstanding the rule change, has ever been in a position to adduce evidence him or herself.
Q46 Baroness Falkner of Margravine: How effectively are you able to challenge the Government's objections to disclosure in these closed cases?
Ms Mountfield: AF has made it easier to have a principle basis for making such a challenge but, in terms of challenging the Government's argument that disclosure would damage national security, we are not in a position to do it because we do not have access to expertise and because that is, I think invariably, dealt with on a class basis, disclosure of the fact that a particular kind of intercept is possible and may damage the public interest. There is no question of what is or is not damaging in this particular case and therefore it really is not something you are in a strong position to rebut.
Mr de la Mare: There is only a limited number of tools in your arsenal in that context. One is finding material that has already been put into the public domain in another context, say, another criminal prosecution, even in another country in a related case. Occasionally that works, and the other main technique is to seek gisting of the allegation in question, which is to try and divorce the substance of the allegation from the supposedly sensitive detail that surrounds it, and that, whilst it may produce more information, nevertheless may result in an allegation of such vagueness being disclosed as to merely compound the frustration of those sitting outside the process because it does not necessarily leave them any the wiser.
Ms Mountfield: "Gisting" may be a verb we made up; I do not know.
Mr de la Mare: We have been using "gisting" for quite a long time.
Q47 Baroness Falkner of Margravine: Lord Carlile's report says that improved training and closer co-operation should resolve the concerns the special advocates raised about the fairness of control order proceedings. To what extent do you think his report addresses the concerns you expressed to him about the limitations in your functions?
Mr McCullough: The particular problem that Lord Carlile refers to as having been highlighted to him by the special advocates is, of course, one of communication. Following receipt of the closed evidence the special advocate is prohibited from communicating with the open representatives of the controlled person himself other than in writing and through the court and in the full knowledge of the Secretary of State. That is the effect of the rules, both the SIAC rules in that context and Part 76 in the control order context. That feature of the rules, as this Committee will be well aware, has been the subject of criticism not only from this Committee but other bodies as well, and it remains a profound concern of the special advocates. The position has, at least in theory, been slightly alleviated by the House of Lords decision in AF but the existing prohibition in our view, and I think, for reasons I will explain in a moment, that I can speak reasonably collectively here, remains a significant constraint on the special advocates' ability to discharge their role effectively even in control order proceedings, and, of course, the AF principle does not, at least currently, apply in SIAC proceedings, so it is even more acute there. I was one of four special advocates that went to see Lord Carlile last October and we were very grateful to him for seeing us and we raised a number of concerns, of which this was a major one. Lord Carlile expressed himself to be sympathetic to our concern and asked for a note to be produced setting out our position in writing, and another special advocate, Martin Chamberlain, and I produced a note which was circulated around the special advocate community, as it were, and subscribed to by, I think, 23 special advocates, and I think it is fair to say that the names appended to that note consist of almost all the special advocates who are regularly appointed or have significant past experience, although the total number of special advocates is rather greater. Many of those do not have significant experience, or indeed have possibly never discharged the role at all. It is, therefore, I think, a reasonably collective view that is represented by this concern and the Committee may have been supplied with a copy -----
Q48 Chairman: That is my next question because I do not think we have.
Mr McCullough: Your secretary will be in a position to supply it. There is no reason why you should not have it. It is fair to say that Lord Carlile's fifth report accurately reflects the basis of our concern in this respect in the passage which starts at paragraph 130, and the specific proposals put forward by the special advocates are recorded by him at paragraph 139, but I have to say that we are bemused by his conclusion at paragraph 140, having expressed himself to be broadly sympathetic to our concerns or complaints. He says that "improved training and closer co-operation should resolve the concerns recorded above". I do not know if that is concerns about leakage of sensitive material or the special advocates' broader concerns, but, as we see it, and as is apparent from the nature of the concern recorded by Lord Carlile himself, the problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlisle concludes by doubting that any rule changes are necessary. In our view rule changes are necessary in order to address this problem and we have made our suggestions relatively modest and unambitious, as we see them, as to ways in which the present system could and should be relaxed.
Q49 Chairman: While you are on that part of the Carlile report, you will see the recommendations we made at paragraph 136 previously, which we subsequently repeated and none of those were accepted. Do you think those recommendations still stand?
Mr McCullough: I do, and you will see that we had them very much in mind in formulating our own proposals, so we would respectfully entirely echo those views. Indeed, the way in which the Committee put it, I think on the last occasion, was that it was essential that the existing rules should be relaxed. I am sorry; I have answered at some length, but there are two further points in relation to that which it may be worth drawing to the Committee's attention. The first is that notably a less restrictive regime than that which is enshrined in the SIAC rules and in the control order rules appears to apply in the context of the use of special advocates in employment tribunal proceedings.
Q50 Chairman: We will come on to non-control orders later on.
Mr McCullough: It is simply by way of demonstrating that in that context, where material of probably equal sensitivity may be involved, it has not been thought necessary to have the same absolute prohibition on communication between special advocates and the open representatives, and the second point is simply to point to what has been adopted in Canada after the Canadians examined the British system and the British experience, and they have adopted a system which permits discussion between open representatives and special advocates on open matters, and have deployed a regime whereby the ex parte procedure may be used if there is a desire to communicate from the special advocates to the open advocates on anything that may impinge on closed material.
Mr de la Mare: Can I just add that in the United States, where I suppose the security concerns are every bit as great as in the United Kingdom, the system they have used, even in Guantanamo Bay, has been one in which open lawyers see all of the material and yet remain free to communicate with their clients. Training only has a rational connection to this issue if the training in question is training to ensure that lawyers who see both open and closed material do not inadvertently disclose matters of sensitivity in the courts of such exchanges with their clients. Otherwise, as Angus says, it is, with respect, irrelevant to the issues. The problem is one of fundamental bar.
Q51 Baroness Falkner of Margravine: Would it be fair of me to assume from what you have just said that your inability to communicate with the controlee affects your ability to represent their interests?
Mr de la Mare: Yes.
Mr McCullough: Yes.
Q52 Baroness Falkner of Margravine: How far does the decision in the House of Lords in AF affect any of these systematic limitations on your ability to ensure a substantial measure of procedural justice to the controlee?
Mr de la Mare: It does not address these matters at all save that it identifies that as the overall touchstone of fairness, so that if, for instance, in any particular case you can articulate a need to communicate with the controlee and to point out that absent such communication there will be a loss of fairness tested against that standard, then that logically demands a modification of the existing rules to ensure that that type of fairness is provided. The problems on the barrier to communication operate on two levels, first of all the practical level. It is often a great practical inconvenience or impediment to have to put what can be mundane or routine correspondence through a very cumbersome approval process. It often results in an extremely frustrating scenario where letters that you have drafted are substantially out of date and no longer fit for purpose by the time they come to be approved. You may be seeking to have some form of interaction in the procedural timetabling of the case and matters of that kind. By the time your letter is cleared by the security services or by the court that letter is behind the times. That is the first impediment and the cumulative effect of that can be such as to impact on the fairness of the hearing. The second impediment is one of your substantive ability to represent clients to the best of your ability by adopting the wisest tactical course by seeking, insofar as you can, to impart advice or strategy. There will be circumstances in which the closed material dictates that an ordinary competent lawyer should follow this strategy as opposed to that strategy and yet you cannot communicate that in any way to the open lawyers unless you disclose those very issues of strategy, or indeed legal privilege, to the very party that you are meant to be acting against, and one has to question whether that is compatible with their rights to effective representation and the protection of legal privilege.
Q53 Chairman: Can I put to you a question I put to the solicitors earlier on, just going back to the Carlile report and findings? I take it from what you were saying that you were surprised by his conclusions on your representations to him, and, putting it neutrally, as Baroness Falkner would like me to, do you think it has got to the stage where the independent reviewer has lost a degree of independence, bearing in mind how long that office has been held? You can be diplomatic if you like.
Mr McCullough: I will resist the temptation to answer that question, if I respectfully may, because I do not think as a special advocate I bring any particular insight or authority in answering that question and I would defer to open representatives and their views and answers in relation to that.
Q54 Earl of Onslow: Before I go on to the question which I am going to ask about Lord Hoffmann, on closed evidence, in your experience, could a lot more of it be released? Are they being over-prescriptive on what can be disclosed and what cannot be disclosed?
Mr McCullough: I think that is a difficult question to answer. We argued more should be and the courts form their view and perhaps inevitably the courts - "deference" may be the wrong word - accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security. So there are debates which go on as to whether more should be disclosed and the special advocates usually come out the wrong side of those debates.
Mr de la Mare: My answer to that question would be yes, there is more which could be disclosed but I would not want to exaggerate the extent to which that is the case. There are often clear categories of information which are necessarily sensitive as to which no special advocate worth their salt wastes time arguing about. At the edges, in my judgment and it is only an opinion, there is a substantial amount of information which could be disclosed. I do not expect for one minute anyone from the intelligence services would agree with that but that is my opinion. One has to again ask the question, what is the risk you are dealing with, and to a certain extent what is the opponent you are dealing with. Sometimes my impression is that the abilities, intelligence-gathering capabilities, interests, sophistication of the opponent you are putatively keeping the information from is exaggerated; one is modelling for a Cold War scenario rather than the type of intelligence problem we currently face. But that is simply an opinion and I am sure others would vehemently disagree.
Ms Mountfield: In one of the cases the security service found its way into the judgment, a witness of the security service agreed that they are institutionally cautious and they take an extraordinarily precautionary approach to what needs to be kept private in the interests of national security. It was quite interesting that in AF Baroness Hay I thought sounded surprised that a class approach was taken - that "class" of document or that "class" of information can then be disclosed because - which is an approach which courts no longer take or no longer take as regularly in other forms of proceeding. I would agree that my opinion is sometimes more could be disclosed but that really is a judgment call in particular cases.
Q55 Fiona Mactaggart: On this issue of disclosure, I understand you operate as lawyers and I am a politician, but one of the things I am wondering is, do you ever have any conversations with people who make decisions that classes of documents, et cetera, should not be disclosed about the implications of that kind of thing? Is there any space in which special advocates and spies can sit down and talk about what can and cannot be disclosed? If not, why not?
Mr McCullough: It happens at one remove, in that the standard procedure in relation to these discussions and debates is for the closed evidence firstly to be produced by the Government, the special advocates to produce a schedule of submissions as to that which we say should be made open, either because it can be made open without any risk to the public interest or because AF now requires it to be made open. The Secretary of State responds by way of a schedule, point by point, document by document, whatever, and then a meeting takes place between the special advocates and counsel instructed on behalf of the Government. Those counsel then tend to go away and take instructions from those concerned and come back and tell us what we can and cannot have voluntarily and what we will have to argue before a judge because we are not going to get it from them voluntarily. That is the way the procedure works. There is no a direct discussion between the special advocates and members of the relevant agencies concerned.
Ms Mountfield: And special advocates have tried to argue whether the class approach is appropriate in individual cases and have not got very far.
Mr de la Mare: Your question is a very good one but the relevant party with whom to have discussions is not politicians.
Q56 Fiona Mactaggart: I know.
Mr de la Mare: Politicians have but extremely occasional involvement in decisions of this kind. The relevant interlocutors are the intelligence services, and the intelligence services in my experience have a view, and it is not a view from which they are easily moved and not necessarily one they are interested in debating.
Q57 Fiona Mactaggart: It is not a view which in many other contexts is in any way justiciable, which is accountable to the courts usually. One of our problems is that one can argue it is not as accountable as arguably it should be, but yours is one of the very few spaces in which there is that bit of accountability. I just wonder whether there is any possibility of creating a space which is not just about lawyer talk - and I am not "dissing" your profession in any way - but which brings the insight of the law and judges' statements and the insights of people whose job is to go round spying and keeping us safe together in a space which is not, "Me being one side and you being the other side in a sort of court room war" but actually have a conversation about why something is dangerous, why something is just and unjust. It really strikes me that that conversation would potentially be a helpful conversation to serve the ends of justice.
Mr de la Mare: There are two things I would say in relation to that. Firstly, the type of process you are describing is to a certain extent a compromise base process, and it is not necessarily one that fits the type of discussion which is on-going, not least because ultimately the special advocates in this particular area have reasonably little leverage. The way the case law is structured is such that the courts recognise these issues are on the border line of justiciability and they recognise the very special acquired expertise of the intelligence services. It is only in a very exceptional case they will gainsay an intelligence assessment made by the intelligence services. First of all, there is little leverage. The second issue is that at the end of the day what underpins all of this is a risk assessment, and different and rational people can take a very different approach to risk assessment. As Helen points out, if you start off from an institutionally cautious basis - and no one could rightly criticise the Secretary of State or the intelligence services from starting off from that perspective - if you start off with that caution in-built, you are always looking to maximise the extent to which you give effect to that in terms of restricting what is disclosed. So at the end of the day, if you are adopting that mentality, there is not much room for a debate about compromise in any event.
Q58 Chairman: Do you always act on one side? Have you ever acted on the security services side of the fence?
Mr de la Mare: I have acted for the security services but not in a control order case but I have acted in another national security case.
Mr McCullough: Likewise. I have often acted for the Home Office in other contexts and have also acted for the intelligence agencies in other contexts.
Ms Mountfield: Once but not in this context. I understand in these cases there is now a protocol to keep those who have been vetted as special advocates and those who have been vetted for the Home Office apart, so they do not nick each other's lawyers.
Q59 Earl of Onslow: One of the things which seems to be coming out of this particular section of discussion is that there is no public light upon where the border should be set. It seems to be a closed conversation between everyone. Would it not somehow be better if there could be a level of public light on this which would, once it was found out what the level should be, have a greater legitimacy than it appears to have? I hope I am making myself clear.
Ms Mountfield: When evidence is served in open and closed form on special advocates, it comes with an open schedule of reasons why some of the evidence is closed, and a lot of that is in very general terms - "national security requires our intelligence-gathering techniques to be kept closed", sometimes "people's lives may be in danger"; it is in very generic terms. Sometimes a closed schedule gives more detailed reasons in a particular case about why things are closed. It is difficult to see, given that we do not have many weapons to gainsay what is actually in the end a judgment, as Tom said, how much further than that it can go. In the end, we have discussions with the advocates for the Secretary of State and the security services and if we do not agree we go to the court, but the court will also have a certain degree of deference to what they say; it is their judgment as to what measure you are meant to use to criticise their judgment. So it becomes quite difficult to adjudicate upon.
Q60 Earl of Onslow: I am not under-estimating the problem. Lord Hoffmann and Lord Hope have basically observed that as a result of the House of Lords decision the system of control orders is possibly unsustainable. Would you go along with that? Lord Hoffmann's actual quote is, that the Lords decision "may well destroy the system of control orders which is a significant part of this country's defence against terrorism." Lord Hope also observed that the result of the decision may be that "the system is unsustainable". Comment please.
Mr McCullough: I think that remains to be seen. Certainly, as we have already indicated, a number of control orders have been recognised by the Government to be unsustainable and a number have been quashed by the courts since the judgment in AF and a further number are pending before the courts. So the overall sustainability of the system remains to be seen as to whether there is a significant number of control orders that can survive the decision in AF.
Mr de la Mare: Going back to my spectrum, it is going to be the mosaic cases which become harder to sustain. Proxy-criminal cases will be easier to sustain. The Secretary of State is to a degree caught between a bit of a Scylla and Charybdis because we have talked about the Scylla, which is the European Court of Human Rights, but there is also the Charybdis which is the European Court of Justice and the Corriet case law which is likely to be increasingly relevant in relation to the so-called control order lights. Internal exile actually concerns one of the protocols of the European Convention on Human Rights which is not incorporated in the Human Rights Act but is recognised to be a fundamental right in EC law even where no free movement within Community Member States is involved - there is a case called Rutili. I suspect we are going to see considerably more argument about that as the control orders get watered down.
Chairman: That sounds quite complicated, we are going to have to work on that one I think.
Q61 Earl of Onslow: If it does become unsustainable, what - and I am probably going to get a rocket from the Chairman for asking this question - can you put in its place or how would you do it?
Mr McCullough: For my part, that is a question that special advocates do not really have a particular expert view to offer this Committee and I would defer to reviews of open representatives generally.
Chairman: That is a fair point.
Earl of Onslow: Gareth Peirce did have a view.
Q62 Chairman: That is their position. The Home Office, in their memo to the Home Affairs Committee on control orders, says, "various House of Lords judgments have confirmed the way in which the 2005 Act operates in a manner fully compliant with the ECHR". Do you think that fully characterises MB and AF?
Mr de la Mare: No.
Q63 Chairman: I thought you would say that!
Mr McCullough: It is a striking comment and it certainly struck all three of us because it does not seem to us to reflect our reading of the House of Lords decisions. They do not on our reading appear to be a confirmation of the way in which the 2005 Act operates in a manner which is fully compliant with the ECHR.
Dr Harris: The Home Office would say that it can operate if it is read compliantly with the rule. That is their get-out.
Chairman: That is a Humpty-Dumpty argument, is it not?
Mr de la Mare: I think a fairer way to put it is that the guidance contained in two House of Lords judgments and in a judgment of the European Court of Human Rights has indicated how it may be possible to operate control orders consistently with human rights legislation.
Q64 Chairman: I think that leads me to my next question and I can probably guess the answer to this one as well. If we are keeping control orders, do we need to change the legislative framework to reflect more accurately the way the courts require the system to be operated?
Ms Mountfield: That would be very helpful.
Mr McCullough: I think it would. Again probably not a particular special advocates specific question but there does seem to have been a gulf that has developed between what Parliament has set out should happen and the way in which the courts have said things are required to happen in order for the system to operate compatibly with ECHR requirements. When such a gulf has developed, it may well be sensible for the law to be brought into line; the legislation and rules to be brought into line.
Q65 Chairman: Rather peculiarly, it was not a certificate of incompatibility case I think.
Mr de la Mare: I think it is also fair to say that Parliament did not necessarily have it fully explained to it that the system as previously operated was a substantial departure from the way that public interest immunity works at common law. At common law there is a three-stage balancing test for public interest immunity, the final stage of which is to balance the unfairness against the damage to public interest. If there is an intolerable unfairness, then the material must be disclosed.
Q66 Chairman: Or the case dropped?
Mr de la Mare: That stage in the common law public interest
immunity stage was effectively abolished by the legislation and the gradual
effect of the decisions in MB and AF was to replace it so that the
legislative test effectively again looked like the common law test. I think before Parliament is asked to do
something of that kind again, the reasons for any abolition of the common law
test replicated in
Chairman: I suppose the inference is that if we re-legislate to try and put things right and get it wrong, it would be an incompatibility a second time around; speculative, I suppose.
Q67 Earl of Onslow: I see that Lord Carlile says that he has considered the effects of the Court decisions on disclosure, and in his view it should be possible in most cases to provide sufficient disclosure to comply with legal requirements without damaging the public interest. Do you agree?
Mr McCullough: I think that is probably a case-specific question but I rather doubt it. For reasons Tom has explained, in most of the existing control order cases that were in existence before the House of Lords decision in AF, a conclusion had been reached that the closed material could not be disclosed without there being harm to the public interest. As a result of AF, that material has to be revisited. Insofar as allegations which are currently closed are required to be made open in order to comply with Article 6 and the principles expounded in AF, then a decision has to be made by the Government as to whether to disclose on the one hand, and thereby incur harm as the Government assesses it and courts have accepted to the public interest, set against the harm that the Government assesses there would be through not having a control order at all. So there is a judgment for the Government to make in each case where they have been told that disclosure is required in order to comply with AF. I think those are case-specific and even within cases elements-of-evidence-specific judgments which fall to be made, and it is probably not possible to generalise across the system. At least I would be reluctant to do so.
Q68 Chairman: Talking about generalisations, I just want to move on to other types of secret evidence cases briefly and implications for AF for them. You have identified with the assistance of the Home Office some 21 different types of cases which involve secret evidence and special advocates to some degree or another, do you think AF has implications for use of secret evidence and your role in other types of cases?
Mr McCullough: Yes.
Ms Mountfield: Yes. The big category of case where AF has been said so far is in passing not to apply is SIAC proceedings because they are deportation proceedings ---
Q69 Chairman: That was the next question.
Ms Mountfield: --- and AF does not apply, but there is a case which is going to the Court of Appeal in June called Z and Others, where that is being challenged at least in relation to the assessments about national security. It is a common law fairness argument and the argument that has been advanced is that Article 6 may not require this but there are lots of dicta that fairness is fairness or a minimum of fairness is the same in all types of proceedings whether or not that is backed by European law principles or common law principles.
Q70 Chairman: We had better not go into that too much because of the sub judice rule which binds us.
Ms Mountfield: I am not telling you what the argument is.
Mr McCullough: There is a range of other contexts in which it remains to be determined, at least remains to be determined by the Court of Appeal, as to the applicability of AF. Those include the so-called "light touch" control orders which at first instance it has been held AF principles do apply but that is subject to appeal due to be heard by the Court of Appeal in the next few months I think. Similarly in the context of employment tribunal proceedings, that is due to be considered by the Court of Appeal. So the scope of the applicability of AF principles remains to be determined by the courts.
Ms Mountfield: And curiously SIAC bail, whether or not you can get bail in SIAC does engage AF principles; whether or not you can be actually sent back is sub judice.
Mr de la Mare: Particularly contentious is likely to be the classic civil proceedings, and the most obvious instance of that is the civil proceedings being brought consequent upon extraordinary rendition and such acts. There will be real questions raised there about to what extent AF applies to a classic tort claim.
Q71 Chairman: So damages cases?
Mr de la Mare: Damages cases, yes.
Q72 Chairman: Interesting. I think we have finished our questions, is there anything you think we have missed or would like to add?
Mr de la Mare: One point, which is law reporting. In the Binyam Mohamed case, quite extraordinarily the ICLR, that is the charity responsible for law reporting, intervened to point out how much their job was being impeded by closed hearings and closed arguments including closed arguments on law, and they invited some attention to be given to how these cases could be effectively and procedurally efficiently reported. That is a subject which I would suggest is allied to this whole topic so that the public can inform themselves as to what is happening from a legal perspective.
Q73 Chairman: That goes beyond control orders, that is generally in these cases?
Mr de la Mare: That is also linked to the problem of closed judgments and there is an increasing corpus of closed judgments with which special advocates have to familiarise themselves. So there are a number of practical issues connected with that, not least whether or not an advocate in one case can get access to a closed judgment in another case because of the specification of not only the law but of the facts.
Q74 Chairman: How do the courts get access to them then?
Mr de la Mare: A very good question.
Q75 Chairman: You have a closed judgment in one case, if you are a special advocate in that case and you have a subsequent case you obviously have access to it ---
Mr de la Mare: You say "obviously" but if it is in relation to facts that are themselves sensitive and summarised and you do not have a need to know those facts, the security services may object to you reading that judgment.
Q76 Chairman: So you have a judge who has to decide one of these cases ---
Mr de la Mare: The judge can read it.
Q77 Chairman: How does the judge know it exists?
Mr de la Mare: That is the problem.
Mr McCullough: Before you even get to the issue of access you have to be aware that a judgment which may be relevant exists.
Q78 Chairman: So what happens? Is that word of mouth amongst the special advocate community, as you call it?
Mr de la Mare: Yes.
Mr McCullough: Which is not an ideal or satisfactory way for this body of closed case law to have been made available to those who need to operate it.
Q79 Chairman: If we are looking at the development of the common law in this area or statutory interpretation, you could have mutually contradictory judgments ---
Mr de la Mare: To give you a practical example, in the AF case, the special advocates got together and summarised the effect of all the closed judgments dealing with disclosure and distilled the disclosure principles which had been applied in the various closed disclosure application hearings, and persuaded the Secretary of State to make that document open. It was then incorporated in the judgments in the House of Lords. That was the first time the precedent was made known what the criteria were by reference to which ---
Q80 Chairman: So you wrote your own precedent?
Mr McCullough: We summarised the precedents.
Mr de la Mare: We wrote the head note I think is more accurate.
Q81 Dr Harris: If you are doing a discrete case, there are certain legal arguments where you are arguing about disclosure but you are not able to make them efficiently, for all you know, because you may not be able to draw on previous judgments and previous arguments because those include facts that you are not entitled to know because they are to do with a different case unrelated to the one you are working on?
Mr McCullough: Yes.
Mr de la Mare: Yes.
Ms Mountfield: Yes, and it is problematic.
Q82 Lord Dubs: Suppose you as an individual had been involved with both cases?
Mr de la Mare: Then you would know and you would be ---
Ms Mountfield: But that is ad hoc.
Q83 Lord Dubs: That would be pure luck?
Mr de la Mare: Yes.
Q84 Dr Harris: Have you raised this as an issue? What has been said when this has been raised?
Mr de la Mare: "Under consideration".
Q85 Lord Dubs: If you have been involved in another case, say Case A, can you in Case B, if you happen to be individually on both of them, quote Case A?
Mr de la Mare: Not without prior approval.
Q86 Chairman: So they can restrict you relying on previous precedent?
Mr de la Mare: That is possible, yes.
Q87 Chairman: Has it ever happened to you?
Mr de la Mare: It has actually, yes.
Q88 Dr Harris: How do they know you are using an argument from a closed judgment if you do not cite the closed judgment and just come up with the argument?
Mr de la Mare: I cannot really go into specifics.
Chairman: You cannot argue the basis of the case if you do not cite the case.
Dr Harris: No, but you can make the argument.
Q89 Baroness Falkner of Margravine: You get together as a community, so you speak to each other, do judges have that sort of relationship where they also find out by speaking to each other?
Mr de la Mare: The Special Advocates Support Office convenes regular meetings in which we discuss so far as we can these points of principle which emerge, so we inform each other as to what is happening in relevant cases. That may work reasonably well amongst the special advocates at the moment, but as the pool grows bigger that becomes more problematic. There is a wider problem, which is that some of these principles are principles of law and they should be known by the open lawyers so that the open lawyers can fix appropriate strategies or take informed decisions as to what to do to best represent their clients as against knowing how the special advocates will act, may act or be inhibited from acting in consequence.
Q90 Chairman: It also affects academic research on all this and the work we do.
Mr de la Mare: Yes.
Earl of Onslow: How much of the stuff for the courts is a matter of public record or is it all closed?
Q91 Chairman: That is the whole point.
Mr de la Mare: That is precisely the objection of the law reporters, which is that it all should be a matter of record and decisions on points of principle should so far as possible be contained in open. The courts, to be fair to them, strive as far as they can to put points of principle into the open judgments.
Q92 Earl of Onslow: The question I am asking, and again I am seeking knowledge, can I as a member of the public just walk into the court and hear you arguing your case?
Mr de la Mare: The closed case, no, the public are excluded.
Q93 Earl of Onslow: Are all of these cases closed?
Mr de la Mare: The public are fully excluded from the portion that deals with the closed evidence and arguments in relation to the closed evidence, closed witnesses.
Mr McCullough: In every case there will be an open stage and then a closed stage, and the public are excluded from the closed stage and that is when the special advocates ply their trade behind closed doors.
Q94 Chairman: One specific question which I must put to you, has any minister met with or asked to meet with the special advocates to discuss your concerns about the process?
Ms Mountfield: No, not as far as I know.
Mr McCullough: Not in recent times, I think.
Mr de la Mare: I remember a meeting with Lord Goldsmith but that was before the House of Lords decision in MB. It was some time ago.
Mr McCullough: I have an idea quite a number of years ago a Home Office minister did meet with a small number.
Chairman: I remember Tony McNulty promising us he would do so and I was reminded of the promise.
Q95 Dr Harris: You would remember him if you had met him!
Mr McCullough: It was not me but I think a meeting did take place, and it sounds as if it was on this Committee's prompting. I think that did occur some years ago.
Ms Mountfield: Another special advocate and I corresponded when the new rules were being drafted for SVAP, the Security Vetting Appeal Panel. We had real concerns about the proposed role for special advocates in that context and we wrote and expressed those concerns and copied it to the Attorney General who did then intervene and she supported us.
Q96 Chairman: Did you have an extra point you wanted to raise?
Ms Mountfield: A lot of what we have talked about is rule changes and there is one I think endemic problem in closed proceedings which deserves to be made open, which is about the very late disclosure of documents by the Secretary of State to special advocates. I have taken soundings from other special advocates about whether that is a fair word to use and it is a fair word. In almost every case a very substantial volume of disclosure, sometimes very important disclosure, arrives on the Friday before a Monday hearing or a couple of days before. I think it is fair also to say that the special advocates share a serious concern that that prevents them from performing the function they are intended to perform.
Q97 Chairman: This is closed material?
Ms Mountfield: The system is that the closed material is served, we ask for some of it to be made open, we meet with the advocate for the Secretary of State to try to agree that, if we cannot agree it we go to court and get a decision about what ought to be disclosed. What often happens is that very, very shortly before the substantive hearing another wadge of new material arrives. Sometimes that is additional material which comes as a result of late review but not always. We are often aware of documents which we know were available many weeks or months before. It is very disruptive.
Q98 Chairman: When you say it arrives, it arrives at your chambers?
Ms Mountfield: Yes. You get a note that it has been delivered to your safe. It may be that (indicating) much, it may be three lever arch files, you do not know how much it is going to be, you have no guide to what is in it.
Q99 Chairman: Are there rules about where you can take it? Can you take it home to work on it over the weekend?
Ms Mountfield: No, you cannot take it home. If it arrives on a Friday before a Monday hearing, that is extremely problematic. There is a real lack of discipline about that and there is a lack of sanction. You stand up and say, "This was terribly unfair, we have done our best but we are sure we have done it in too hurried a way", what can the court do? In private proceedings they might say, "We will not allow that late evidence to be used", but they cannot do that here because it is evidence about national security, you cannot say, "We will decide a national security case based on only half the evidence." There is no cost sanction, it is money moving from one part of the Treasury Solicitors to another. If you really need an adjournment, I guess you would seek it, but the controlee does not really want this to go on for still longer than it already has given the delays which are inherent in the system. What we do, and I do not know whether Angus has done it, is to register our concern and we try to make that open if we can and the courts share our concern, and on we go. It is not something about the rules but it is a very, very serious problem about the operation of the special advocates system. I think sometimes when the higher courts express views on the role special advocates can perform, that is based on lucky ignorance of quite how difficult it is in practice to do the job which the rules say we do. That is a difficult position for a lawyer to be in if you care about the rule of law and this is a system for filling a justice gap.
Mr de la Mare: Helen's point is extremely well made. Every single special advocate has experienced this problem. There are two inevitable consequences about making disclosure. The first is that this material is incredible dense, it is incredibly difficult to parse, and parse it you have to do word by word often, unpicking the various synonyms or codes used in this documentation. It takes a long time to read and you read it without the benefit of someone to help you with it because you do not have a client, you do not have an intelligence expert to tell you what this document means or does not mean or what its implications are for other documents. You do not read it in isolation, you have to read it with the documents it has to be read with or refers back to. To do that job properly takes time and you cannot do it if you are dumped with the material the day before court. The second point is that late disclosure inevitably means that the thing which is lost is the disclosure process, and it is the disclosure process which is one of the two most important jobs that a special advocate does, namely ensuring that insofar as it can be the material in question is put in open, or a gist is provided for it or some form of follow-up occurs. That process always goes out the window when you get late disclosure.
Q100 Chairman: That begs the questions, is this a conspiracy cock-up or a cocked-up conspiracy? Is it a deliberate tactic?
Mr McCullough: I echo the experiences of both Tom and Helen. I would not suggest that it is a conspiracy. I think the Government forces, as it were, are overstretched, but they realise, or at least have at the back of their mind, that there is no effective sanction that the court can impose for these serial and routine breaches.
Q101 Chairman: So you would not say it is a deliberate tactic?
Mr McCullough: I would not say it is a deliberate tactic but I think the special advocates' ability to discharge their role effectively falls quite a long way down the order of priorities that the Secretary of State and his team have in the way they conduct the litigation. This leads to these endemic problems. As Helen has said, my recent practice at least, so that open advocates are aware of the position at least, is to produce a note setting out the chronology of what has occurred and getting the court's permission with the Secretary of State's approval for that note to be disclosed to the open advocates. It does not remedy the position but at least the open representatives are aware of what is going on. It may be possible, if the Committee were interested, for me to give just one example by way of such a note which has been approved for open disclosure as illustrative of this widespread problem.
Q102 Chairman: That would be helpful.
Ms Mountfield: On cock-up or conspiracy, frankly it does not matter.
Q103 Chairman: It matters to the extent that if it is a deliberate strategy then that is a rather more serious thing than simply a lack of resources or lack of competence.
Ms Mountfield: But the effect ---
Q104 Chairman: The effect on the individual is the same but the remedy is very different; the political remedy from our point of view.
Ms Mountfield: The problem is different agendas. The security service is taking an institutionally cautious approach to do whatever it takes to protect national security as they perceive it in a particular case. Overstretched government departments are going through their documents to do the things they have said they will do but it does not much matter if it is late because at the end of the day there is not a sanction. It is a real concern if you think the rule of law matters. The other real problem is that it is all closed and one wonders whether it would happen quite so frequently if this was a process which was open to public scrutiny.
Chairman: I think we are going to have to draw a line there. Thank you very much, it has been a fascinating session.