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Lord Wedderburn of Charlton: My Lords, I am grateful to the noble and learned Lord. I wanted to ask exactly the same question as the noble Lord, Lord Lester. After that last exchange, I shall now put a residual point. The work of the special advocates has been described, quite rightly, by the noble Lord, Lord Lester, as remarkable. Taking account of the fact that, in such circumstances, there will be information that cannot be disclosed, surely, even in the light of the amendments to the procedures described by the noble and learned Lord, it would not be right to give the House the impression that, although special advocates who do not resign are happy with the situation, they are completely happy?
Lord Falconer of Thoroton: My Lords, I do not know whether they are completely happy. Those who are staying on have made specific points in writing to the Government and we have sought to address them. Having addressed those points, we want their views on our proposals.
This is a difficult situation, but we need to craft a solution to it. What should we do to the Bill? Paragraph 4(2) on page 20 sets out the provisions that give effect to and allow for the special advocates. I make it clear, as I have already done, that that is all subject to Article 6.
The amendment tabled by the noble Lord, Lord Thomas of Gresfordquite separately from the very powerful points that the noble Lord, Lord Carlisle of Bucklow, made that it was inconsistent with the new Clause 2 of the Billtakes bits of Article 6, throws in some of the language of the Bill, and that is the provision. It seems to me that that would be unhelpful and misleading as a basis on which to say that the procedure applies.
I respectfully submit that the best way is, first, to accept that Article 6 applies, as the Government make clear today through me and as I made clear yesterday, and, secondly, to respect the process that has been put in place and allow rules to be made that will reflect that procedure, which is paragraph 4(2). There is one problem, which the noble Lord, Lord Kingsland, specifically raised yesterday, and that is the exculpatory material, which is the paragraph 4(3)(c) point. The noble Lord, Lord Kingsland, rightly said that could mean that a situation could be reached in which the Secretary of State was not obliged to produce exculpatory evidence. I accept that he must produce exculpatory evidence, but he must produce it
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to the court and the special advocate in the first instance. I hope that it can be given to the suspect and his legal representation, but if it cannot, then it has to be treated in the same way as the other material that comes before the process.
I hope that that satisfies the noble and learned Lord, Lord Mayhew of Twysden, who raised the matter yesterday, and the noble Lords, Lord Carlisle of Bucklow and Lord Kingsland. I have an amendment that makes it clear that that can happen.
Lord Mayhew of Twysden: My Lords, I am very grateful to the noble and learned Lord for giving way. He has reassuringly described the practice that obtains at the moment. Like last night, I ask why cannot that be explained in the Bill, in place of sub-paragraph (3)(c), so that it is plain on the face of the Bill. The words,
do not extend to giving him permission to sit on exculpatory material, save, in the very rare case when it will be necessary to obtain the approval of the court for such a course. Why cannot that be set out on the face of the Bill? If that could be done, it would be very reassuring to those who read it.
Lord Falconer of Thoroton: My Lords, perhaps I can consider whether that needs to be done between now and Third Reading, which will take place in a few hours' time. It seems to me to be a perfectly sensible suggestion. It would make it clear that the Secretary of State has to disclose the material to the court and to the special advocate. The difficulty arises if the court then says, "You have to show it to the suspect", and then, no doubt, the Secretary of State will decide what to do about it.
I hope that I have reassured the noble Lord, Lord Thomas of Gresford. I earnestly hope that the noble Lord will recognise, in the light of what the Court of Appeal has said, that to press on with this amendment will simply lead to confusion and provide no added protection. The noble Lord, Lord Thomas of Gresford, has not yet indicated whether he accepts broadly that the process that I have described is the best and appropriate process.
The question of what is a fair trial is variable. It depends on the type of trial, on the issues to be considered, and on the way in which a judge or a tribunal approaches the task. However, there are certain basics to a fair trial. In the amendment I have endeavoured to set out what I believe should be the
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basics in these types of proceedings; namely, that there should be notice of the proceedings given to the person concerned; that he should have a summary of the allegationsnot the evidence, but what he is charged with; that he should have the right to make representations; that he should have the right to cross-examine witnesses; and that he should have the right to call evidence. That is as far as the amendment goes.
I repeat that I have not attempted to put into the amendment, by reason of the very special nature of these proceedings, anything about evidence. I appreciate that this is a very difficult and sensitive area and, of course, I pay tribute to the speeches last night of the noble Baroness, Lady Ramsay
Lord Falconer of Thoroton: My Lords, of course, everyone agrees that a summary should be provided. Am I right in saying that paragraph 4(d) of the amendment is the only circumstance in which the noble Lord believes that material can be kept from the suspect in the legal process; namely,
So you are saying, "Do not use the special advocate procedure; just use this particular procedure and none other". If that is right, what the noble Lord proposes is something that would not allow the existing procedures, which have been held to be fair, to be used.
Lord Thomas of Gresford: My Lords, I very rarely accuse the noble and learned Lord the Lord Chancellor of being impatient, but I shall come to that point in a very short time, for obvious reasons. I started by saying that what is a fair trial varies between the different types of issues. Certainly in the case of deportation, the matter has been ruled on twice by the Court of Appealnot by the Judicial Committee of the House of Lordswhich has been satisfied in that type of proceedings with the special advocate system. The procedures before SIAC have also been approved at certain levels.
Let me remind your Lordships what SIAC means. It means the Special Immigration Appeal Court. We use the initials SIAC without really understanding to what area of law they refer. One of the peculiarities of the procedures which resulted in people being locked up in Belmarsh was that they were immigration procedures, and it was open at any time to an inmate of Belmarsh to leave this country, provided that he could find a country which would accept him.
The special advocates have been developed in that contextthe Special Immigration Appeal Court. They have never been developed in the criminal courts. Yet there is, of course, sensitive material coming before the courts in terrorist cases all the time. Not just in terrorist cases but in drugs cases: wherever there is surveillance, wherever there are techniques and wherever there is danger to informers and to operatives in the field. Every day, in many criminal courts throughout the country, this type of evidence is produced.
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How is it dealt with? The mechanism has been developed whereby sensitive material is disclosed to the judge, who rules first of all upon whether it may be disclosed in any form to the defence, if it is relevant. Secondly, he rules how it should be redactedin other words, what should be cut out of itin order for the defence to see it. That is the way in which sensitive material is dealt with in criminal courts. When we come to this type of procedure thereforethe making of control orders in the High Court, as it now isI do not see why we are bound slavishly to follow the system that was developed for the Special Immigration Appeal Court.
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