Joint Committee On Human Rights Fifth Report

Procedural safeguards and due process rights 4: Role of the special advocate, and equality of arms between the detainee and the State in relation to 'closed' material

51. There is one area in which the procedure before SIAC is of questionable fairness. This relates to the treatment of intelligence-derived information on national security matters. The Act adopted a compromise between fully protecting the right of a detainee to know the evidence against him or her, reflected in the principle of equality of arms under ECHR Article 6.1, and protecting the public interest in ensuring that information about intelligence operations does not fall into terrorist hands. The compromise took the form of appointing a special advocate, with appropriate security clearance, who would be allowed to see the 'closed' information put before SIAC and make submissions in order to safeguard the interests of the detainee. However, the special advocate is not normally permitted to take instructions from the detainee or his or her solicitors after seeing the 'closed' information, and the detainee will not be present when the 'closed' information is discussed in SIAC. The special advocate may apply to SIAC for permission to discuss the information with the detainee, but no criteria are provided for deciding such applications.[38] The Law Society, in its evidence to the committee of Privy Councillors appointed under section 122 of the ATCS Act, has drawn particular attention to the difficulties facing a detainee in dealing with the assertions of the Secretary of State in a meaningful manner when the Secretary of State is basing the assertions on 'closed' material.[39]

52. Lord Carlile, too, has noted that the restrictions on communication between the detainee (and his or her representatives) and the special advocate put the detainee at a disadvantage, particularly in relation to material derived from interception of communications. In Lord Carlile's view, the inequality can be justified, if at all, only by an overwhelming need to protect national security during a public emergency threatening the life of the nation.[40] If the level of threat is reduced, a greater degree of procedural equality should be restored as a priority.[41] At present, however, Lord Carlile has concluded that the special advocate system 'works reasonably well to achieve its purpose of assisting SIAC to reach decisions correct in fact and law.'[42]

53. In the light of this, we accept that, for the time being, the special advocate system may be the best way of dealing with an inevitably unsatisfactory situation in relation to 'closed' material. However, we endorse the view of Lord Carlile that the inequality of arms between the State and the detainee can be justified, if at all, only by an overwhelming need to protect national security in circumstances falling within a valid derogation under ECHR Article 15.

54. We therefore take the view that any piece of evidential material should be classified as 'closed' only if there are substantial grounds for thinking that making it available to the detainee, or his or her legal advisers, would compromise the effort to protect the public against the national emergency that gave rise to the derogation under ECHR Article 15. We draw this to the attention of each House.

55. If the Government satisfies each House that this is how material is classified as 'open' or 'closed' for the purposes of a SIAC hearing, we consider that each House could properly conclude that, at the moment, the immediate threat of terrorism justifies the inequality between detainee and the State in relation to the treatment of 'closed' material, because the special advocate system provides the best available (albeit not wholly satisfactory) way at present of balancing irreconcilable interests and rights at present.

Role of the special advocate on appeal

56. In our reports on the Bill, we concluded that there might be situations in which a detainee could be at a particular disadvantage on any appeal from SIAC, because there is no provision for the special advocate to appear in the Court of Appeal or the House of Lords. While noting suggestions in the Court of Appeal for non-statutory ways of allowing an independent advocate to appear, we took the view that there should be a statutory role for the special advocate on appeal.[43] In the only case under the ATCS Act so far to be heard by the Court of Appeal, the Court did not find it necessary to hear the special advocate, because it decided the case on the basis of open evidence alone. However, we remain of the view that it is unsatisfactory for the Court of Appeal to refuse to hear submissions from the special advocate who will have seen the closed material at first instance, and might be able to make important points on the basis of the closed evidence of which the detainee's representative will be unaware. It should not be assumed that the 'closed' material will always be entirely against the detainee.

57. We reiterate our view that, if the provisions are to continue in force, fairness requires the appearance of the special advocate in the Court of Appeal or House of Lords. He or she should have the right to make any submissions (in the absence of the detainee and the detainee's representatives if necessary) that he or she thinks are appropriate in relation to the 'closed' material.

Treatment and conditions of detention of detainees

58. In our view, it would be inappropriate to continue to detain people if it is not possible to find places providing proper conditions in which to accommodate them. These conditions should take account of the facts that—

  • they are facing detention for a potentially unlimited period; and

  • they are being detained at least in part on account of their political beliefs.

59. We are disturbed by Lord Carlile's account of the conditions under which the detainees are currently held in HMP Belmarsh, and, to a lesser extent, by the account of conditions in HMP Woodhill.[44] We endorse his view that persons who have not been charged with any offence should have that status reflected in the circumstances of their detention, without compromising security. We draw this to the attention of each House as a matter to be considered before deciding whether to continue sections 21 to 23 of the ATCS Act in operation.

38   ATCS Act 2001, s. 27; Special Immigration Appeals Commission (Procedure) Rules 1998, r. 7 Back

39   Anti-Terrorism, Crime and Security Act 2001 Review: A Memorandum of Evidence from the Law Society to the Committee of Privy Councillors (London: Law Society, 2002), pp. 9-10 Back

40   Lord Carlile's ATCS Act review, pp. 24-25, para. 4.28 Back

41   ibid., p. 26, para. 4.30 Back

42   ibid., p. 25, para. 4.30 Back

43   Second Report of Session 2001-02, Anti-Terrorism, Crime and Security Bill, HL Paper 37/HC372, paras. 48-49; Fifth Report of Session 2001-02, Anti-Terrorism, Crime and Security Bill, HL Paper 51/HC 420, paras. 21-23 Back

44   Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review by Lord Carlile of Berriew Q.C., pp. 30-35, para. 6.1-6.12 Back

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