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Lord Lester of Herne Hill: My Lords—
7 p.m.
Lord Falconer of Thoroton: If I can just finish this point, I shall come back to the noble Lord.
It is worth recalling the concerns expressed yesterday by the noble Baroness, Lady Park of Monmouth, and by my noble friend Lady Ramsay. They have much greater experience than anybody else in this Chamber. First, my noble friend the Lady Ramsay of Cartvale:
"I am extremely worried and disturbed at how intelligence material in general and interception material in particular is being advocated by some noble Lords as suitable for disclosure in court proceedings ... That would be an extremely serious blow to any intelligence or law enforcement service".—[Official Report, 7/3/05; col. 601.]
The noble Baroness, Lady Park of Monmouth, said:
"Frankly, if such agents see this sort of thing happening in courts, and defence counsel—quite properly, given the interests of their client—revealing what should not be revealed, then we shall not have any agents ... It is also one of the more serious aspects of terrorism that it is extremely difficult to find people with access, courage, determination and lasting power. We should not overlook the fact that they too have rights. They need to be protected—and need that protection more, I fear, than the person who would be on trial".—[Official Report, 7/3/05; col. 604.]
The noble Lord, Lord Carlile of Berriew, looked at this matter from an objective standpoint, and he made precisely the same point as has been made by the noble Baroness, Lady Park of Monmouth, and by my noble friend. He said specifically that if the material was disclosed to the suspect and his legal representative, then there would be danger. It is worth pointing out that in every one of the Belmarsh cases, the judge agreed that there was some material that could not be disclosed to the suspect or his legal representative. However, in relation to all that material, that suspect would have the benefit of a special advocate.
That is the procedure, but is it fair or just? Can justice be done in relation to that? This is the view of the SIAC procedure on whether it is fair, in the case of A—which went to the House of Lords, but not on this point:
"The proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in Article 6, is given due weight, I am satisfied there is no contravention of that article".
He returned to the issue again in the case of M:
"Individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided or if it cannot be avoided minimised. However, the unfairness involved can be necessary because of the interests of national security. The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him.
We feel this case has additional importance because it clearly demonstrates that, while the procedures which SIAC have adopted are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice. It is wrong, therefore, to undervalue the SIAC appeal process".
Whoever makes the rules in relation to this process is going to make them similar to those which applied in relation to SIAC. They have to comply with Article 6. Noble Lords can if they wish believe, because it is deportation proceedings, that different rules of fairness would have applied. I think it extraordinarily unlikely that the courts would have taken that view in relation to a procedure that involved, by the time the Court of Appeal looked at it, somebody having been in prison for three years. It would be little comfort to be told that these are deportation proceedings and therefore different.
Lord Maclennan of Rogart: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for giving way. He has been at great pains to show how considerable the thinking of the Government has been behind this. If material is not disclosed to the suspect, is it then not possible for the special advocate to form a view about what the possible answers might be which would render the evidence much less persuasive, such as a complete alibi, or a mistaken identity of some evidence?
Secondly, is it not inconceivable that a court, if presented with the Government's statement that the disclosure of evidence would be contrary to national security, would not seek to substitute the judge's view about that? How could he, and what possible evidence could he bring to bear? These two points make it possible that the suspect could have fair treatment in some circumstances, but in others, just as possibly, he could not. It is for that reason that one has to look for remedies which protect the suspect's interests as well as national security.
Lord Falconer of Thoroton: My Lords, there are two stages that one needs to address. The noble Lord, Lord Maclennan, is right that if there is material which you cannot tell the suspect about because it endangers national security, there is plainly the possibility that you have not obtained from the suspect instructions that would deal with it. On the other hand, I do not think that people who have looked at it dispute the proposition that it would be dangerous to give that to the suspect, for national security reasons. I take one utterly obvious example: suppose there is an informant who is right at the heart of a terrorist cell, and that if you reveal a particular sequence of events, you almost inevitably reveal the name of the informant. That
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informant has proved reliable in the past, and you need the control order to prevent an atrocity. What do you do?
The solution that has been reached is that you give as much as you possibly can to the suspect and his lawyer, but in relation to the material that you cannot, because of the risk it poses, you allow a special advocate to question whether it should be given to the suspect. If the special advocate accepts that it cannot be given to the suspect, then he will test it. The courts say it is not perfect, but there is a balance to be struck in relation to the interests of the suspect and the needs of national security. It is not just that we, the Government, submit that it is the right balance to be struck, it is one that the courts have said is okay.
Lord Wedderburn of Charlton: My Lords—
Lord Falconer of Thoroton: My Lords, I suggest that the noble Lord, Lord Lester of Herne Hill, who I unfairly cut off, comes first.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. He referred to the independent special advocates. He is certainly right in saying that they are independent and, if I may say so, they are outstandingly able. I commend the Government on the way in which they have been appointed, but this body of men and women have special expertise in whether the SIAC procedures have worked fairly. Is he consulting, and has he consulted, the body of special advocates, on the basis of their practical experience, on whether improvements can be made to the SIAC procedures? If so, what representations have they made?
I am not talking about the special advocate who resigned, but about those who have remained in posts and seek to be as fair as possible. What representations has he received or will he be receiving? That is surely a body of people whose opinions really matter, in the sense that they have been trying to work the system, and I am sure they will have a contribution to make. Please tell us something about that.
Lord Falconer of Thoroton: My Lords, I agree entirely with what the noble Lord has said. Special advocates have made detailed representations to the Attorney-General—not to me, because the Attorney-General appoints them. However, I have seen the detailed representations and the special advocates have gone through a number of areas where they believe more support is needed. I shall not go through every single one that they have given because I went through them in detail in the Constitutional Affairs Select Committee. On behalf of the Government, we did not accept every single point that they made, but we accepted, in practice, the substance of the points.
At the heart of their legitimate concern was the fact that they were not given enough support, which resulted in three points: first, there was not an instructing solicitor in the Treasury Solicitor's Department who was cleared to see the closed material that they saw; secondly, there was no one from whom
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they could take advice in relation to the material that they were given; and, thirdly, they did not have access to the vast body of decisions that SIAC had made in relation to various legal and factual issues, which it would be helpful to see.
We need to remedy all of those points. I said to the Select Committee that we are minded to propose a number of remedies, for example, ensuring that they have a proper instructing solicitor, but before we do that, we want to consult the special advocates themselves.
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