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Lord Falconer of Thoroton: That is the way in which it works in practice. I do not think that the rule in
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paragraph 4(3)(c) would prevent that happening. That is the proposition that was being advanced. I shall certainly think carefully about what has been said in relation to it and, if I think that it does prevent that happening, or the rules reflect that happening, I shall come back to the House and seek to make an amendment to ensure that it does not happen.
Ultimately a point could be reached where, having disclosed the material to the court and to the special advocate, if the court took the view that the suspect should see that material and the Secretary of State took the view that that would be intensely damaging to national security, it would be for the Secretary of State to decide at that point whether he was going to proceed with relying on that material. But I make it clear that exculpatory material has got to be shown to the court and to the special advocate. I think that meets the point made by the noble and learned Lord, Lord Mayhew.
Lord Thomas of Gresford: Perhaps the noble and learned Lord can help me on that topic. When the SIAC sees material that is not disclosed either to the applicant or to his representative, is it entitled to act upon it? Usually in a criminal trial the judge will look at material to decide whether it is relevant or whether it should be disclosed, but he does not act on it because there is a jury, and it is the jury who are the finders of fact. What happens with material disclosed to SIAC? Is it entitled to act upon that material?
Lord Falconer of Thoroton: Of course it is entitled to act on it. The decision is being made by SIAC and it must make its decision on the basis of all the material that is put before it. If there is material that is shown to the court and looked at by the special advocate but not seen by the applicant or his legal representative, SIAC is obliged to consider all of the material before it in reaching a decision. There is no exclusion of the material from its decision-making process. It might not attach much weight to it for evidential reasons or it might attach significant weight to it; it is for SIAC to decide.
Lord Thomas of Gresford: I am grateful for that clarification. Does it then follow that SIAC makes a decision and forms its reasons based upon material that is never shown to the applicant, but then does not tell him those reasons? So his liberty can be diminished without him ever knowing what SIAC has seen, what the allegations are and what the reasons are for his detention or whatever it may be. Is that how it works?
Lord Falconer of Thoroton: Again, I am disappointed that the noble Lord has not read the Newton report and the Carlile report, which went through all of this in great detail. The court seeks to give as much material as it possibly can to the suspect and his legal representatives. Some of the material, if disclosed to the suspect or his legal representative, could endanger method or source of information. So a balance has had to be struck, an
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approach that the European Court of Human Rights has upheld as a fair process because of the intervention of the special advocate. I refer not to SIAC but to the deportation tribunals in 1997, where that was upheld. We submit that there is no difference whether it is a control order or imprisonment pending deportation. We have adopted a procedure that the convention has suggested.
We think that each paragraph in the rules is not the sinister thing that the noble Lord suggests but a sensible and workable way of putting together the rules. We put in the specific provisions relating to the rules in part to ensure that there will be a proper debate about what will go into the rules on the first occasion. I am glad that we did so because it has enabled us to get rid of some misconceptions and face head on the issue of how the procedure will work.
Baroness Falkner of Margravine: I wish to readdress the question of my noble friend Lord Thomas. Does the noble and learned Lord, the Lord Chancellor, accept or agree that a procedure used for immigration tribunals would stand the test were it to come forward in this context of restrictions on liberty and so forth?
Lord Falconer of Thoroton: Yes, I believe that it would. I believe that it is the fairest procedure that can be devised that ensures that the suspect sees as much as possible and we protect our sources. The consequence for the people in respect of whom the procedure has been held to be fair is that they have been put in prison and have been in prison for a considerable time. Control orders will not go that far. I have little hesitation in saying that I believe this to be the fairest procedure. The Lord Chief Justice described it as a procedure whereby justice could be done. That is the essential test of whether it is fair.
We have to face up to the need to strike that balance. The consequence of what the noble Baroness, Lady Falkner, is saying, is that if we cannot disclose everything then we cannot have control orders. That is not the approach that either we or, I believe, the Front Benches of either opposition party or the noble Lord, Lord Carlile, or the noble Lord, Lord Newton, or the courts take.
I turn to Amendment No. 179, the purpose of which is explicitly to prevent the court from using evidence obtained through use of torture. The Government unreservedly condemn the use of torture and have made it an important part of our foreign policy to pursue its eradication worldwide. There has been a great deal of speculation about the cases put before the Special Immigration Appeals Commission and whether they relied on material from other countries that may have been obtained using torture.
SIAC emphatically rejected any suggestion that any evidence relied on by the Home Secretary was or even may have been obtained by torture; or indeed by any inhuman or degrading treatment. The Court of Appeal confirmed SIAC's view. It is important to be clear that it is not the Home Secretary's intention to rely on or present to the court evidence where there is a
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knowledge or belief that torture has taken place. We do not believe that the amendment is appropriate because we do not need it.
I should make it clear that even though the Court of Appeal in A and Othersthat is not the A and Others case that went to the House of Lords, but the other Aconfirmed SIAC's view that there was no evidence that any material relied on by the Secretary of State had been obtained by torture, it decided by a majority the issue of whether such material could ever be admissible evidence.
"The Secretary of State could not rely on a statement which his agents had procured by torture, or with his agent's connivance at torture. He was not, however, precluded from relying, for the purposes of ss 21 and 15 ATCSA 2001, on evidence coming into his hands which had or might have been obtained through torture by agencies of other states over which he had no power or direction. If he had neither procured the torture nor connived at it, he had not offended the relevant constitutional principles. Provided that the Secretary of State was acting in good faith, a recognition of his responsibility for national security was required when assessing his approach to the material available to him. That conclusion was not altered by art 15 of the United Nations Convention Against Torture".
Lord Judd: Does my noble and learned friend agree that it is not just a matter of human rights and related issues, but that it is fundamentally central to our considerations that information gained by torture is notoriously unreliable? If the Home Secretary does not know for certain how the information has been acquired, how can he evaluate that information and its reliability? Does that not serve to underline still further that, right at the centre of the decisions that may be made by the Home Secretary, there is the possibility that he is acting on information about whose quality he cannot be certain.
Lord Falconer of Thoroton: I repeat our utter repudiation of torture. Governments will obtain material from other governments, but they may not know the precise details of how it was obtained and yet they may regard it as reliable; for example, the source has given reliable material in other circumstances. So reliability can be judged by testing what has been said elsewhere.
On the basis that the material is reliable, and there is no suggestion that it was acquired under torture, the Home Secretary would be justified in relying on it so that steps can be taken to prevent an atrocity in this country. As I say, I make it clear that we repudiate torture and that is an essential part of our foreign policy.
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