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Lord Goldsmith: I am happy to deal with this point under debate on whether Clause 27 shall stand part. I am not convinced that it is the most logical place, but I do not want in any way to avoid the issues.
I go back to what has been said. There will be sensitive intelligent information in certain cases which could not be revealed without compromising sources or prejudicing the security of other people. It is not difficult for any noble Lord to consider circumstances in which, if a hidden source—for example, someone inside a group, under cover—were to reveal that this happened on this particular day or that that conversation was heard on that particular day, it would put the life of that source at risk and prevent that source continuing with other work.
The hard choice is that that is not material which can be put before a court. At Second Reading I made the point that in circumstances where the court decides to use the PII system, it is saying that certain information that the prosecutor does not want to rely upon need not be disclosed because there is a general rule that unused material—even if the prosecutor does not want to rely on it—may be put forward. The noble Lord's example of the position of viewpoint of an observer is exactly such a case. It may not matter where the
viewpoint was. The judge may say, XIt is not relevant to this case. You don't have to reveal that because if you do so I recognise that you will be compromising a source: where this observer is being seen from". As the noble Lord, Lord Thomas, said recently, the court looks at the information, decides that it does not need to be disclosed and does not rely on it. The court cannot rely on it.We are faced with this situation. Sensitive intelligence information shows that there is a person who, it is reasonable to believe, is a risk to national security. Because we cannot reveal that information without prejudicing source or national security, are we simply to say that we must do nothing about it? In the Chahal case the European Court of Human Rights said that it recognised that the use of confidential information might be unavoidable where national security was at stake. The question is: how do you use that material? How do you allow SIAC to review it? I refer to the special advocate procedure which the European Court commended in Chahal.
With respect to the noble Lord, Lord Thomas, he does not represent accurately what the special advocate procedure is. First, the special advocate—this is rule seven of the rules—has a function to represent the interests of the applicant. That means making submissions, cross-examining witnesses and making submissions to the commission. Before any of the sensitive information has been received, he is at full liberty to communicate with the applicant, to talk to him and to get any information he wants from him. After he has received the sensitive information, he needs to apply to the commission if he wants to talk further with the appellant. Rule 7(7) states that the special advocate may communicate with the appellant and his representative. At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the commission authorising him to seek information in connection with the proceedings from the appellant or his representative. So in those circumstances the commission can control—
Lord Campbell-Savours: May I—?
Lord Goldsmith: Will the noble Lord allow me to finish the point and then I shall gladly give way? In those circumstances the commission can control whether there is or is not a security issue about saying to someone, XI want to know where you were on 14th June because that is what it is all about". The casual comment, X14th June", might—but the special advocate may not know it—bring home to the appellant the fact that he knows where he was on 14th June, that he spoke only to a certain person and that that person is, therefore, an informer.
Lord Campbell-Savours: All the papers will have been seen by the three members and also by the special advocate. Therefore, the special advocate will have no knowledge more or less than the other three persons. Therefore, why is he not capable of making that
judgment independently of them? Why must they say, XYou cannot do this; you cannot raise that; you cannot refer to that date and you cannot talk about that conversation?" If he or she knows the gravity of the case as well as the three people sitting in adjudication, why cannot he make that decision himself?
Lord Goldsmith: I suggest that the answer is that the procedure allows for a reasoned discussion in which the Secretary of State's representative can no doubt point out why there is a particular difficulty about asking about the 14th June. The commission can then make a reasoned decision in relation to that.
The Earl of Onslow: Can we go back to this mythical 14th June? If the man is criminally accused in a court, the 14th June will be made public. Therefore, the risk to security, if he is one, is the same as it would be if the man then pleaded not guilty. I cannot see why you can say it when the chap is being charged but not when he is being locked up by administrative order.
Lord Goldsmith: Perhaps I may help the noble Earl. It may not be apparent to him that there are criminal prosecutions which do not take place because they cannot take place without revealing sensitive intelligence information and compromising it. In those circumstances it is not that the material is somehow put before the court in some way that the applicant does not see it; that information cannot be used. In those circumstances the prosecution cannot take place. That happens, as the Committee will know. The noble Lord, Lord Thomas, will know well that one of the reasons that in a number of cases certain defendants will consistently ask for disclosure of information about informers or about sources is because they hope that, if the prosecution is obliged to reveal the source or the information, it will not be prepared to do that as it would compromise the source and put people's lives at risk and the prosecution cannot take place.
We are dealing with a different situation where there is a reasonable belief that someone is a national security risk—someone who has no right to be here and for whom there is a right to deport but we cannot deport because we are concerned about his or her human rights. That is one point and one point only. In the circumstances mentioned by the noble and learned Lord, Lord Mayhew, do we let those people roam free or do we find a way of allowing the decision to be reviewed judicially by a committee which includes a High Court judge, another judge and another member in a manner that allows a good working arrangement so that the matter can be dealt with? I hope that I have said enough.
Lord Thomas of Gresford: Has the noble and learned Lord ever cross-examined a witness in a case involving the liberty of the subject without any instructions from his client? Has that ever happened? Can he envisage it? If he has been in such a situation, how effective was it?
Lord Goldsmith: There appears to be a view that SIAC is not dealing with these cases. The reason for
setting up SIAC was, following the Chahal case, to deal with cases where the Secretary of State had formed a view that it was not conducive to the public interest that someone should stay here but, rather, that that person should be deported. Such a view would be based on intelligence information. That is why SIAC was set up.The circumstances that I have set out are not different from those proposed under the Bill. I have the testimonial of the noble Lord, Lord Lester of Herne Hill, that it is a fair compromise between the national security issue and the protection of individual liberties. It must be ensured as far as possible that the appellant knows the nature of the case against him. Where that is not possible, it must be ensured that an experienced, independent advocate is available to put it forward, and the matters must be represented and cross-examined.
Lord Campbell-Savours: I am sorry to press my noble and learned friend on this matter. But perhaps I may quote again what the Lord Chancellor said on 29th July 1998. He said:
- XThe special advocate will see all of the Secretary of State's material".—[Official Report, 29/7/98; col. 1588.]
Lord Goldsmith: If the commission so agrees, then he can speak to the appellant and seek particular information.
Lord Campbell-Savours: Particular? Why does it have to be under those controlled conditions? That is what I am driving at. Why does he not have a general right of access so long as he does not breach matters of national security?
Lord Goldsmith: It is to ensure that inadvertently sources do not lose their lives and to ensure that national security is not compromised because a person does not appreciate the particular circumstances. If there is no risk of that happening, the commission will say that there is not a problem in his asking where someone was on 14th June.
I cannot improve on that. It is a system which enables the interests of the applicant to be safeguarded. It works already. It worked in the Rehman case. In effect, the individual was represented by a special advocate who did such a good job that he persuaded SIAC to overturn the decision of the Secretary of State. This is no impotent procedure. It is a robust protection for the appellant, consistent with protecting national interests. Therefore, I ask that Clause 27 stand part.
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