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Lord Falconer of Thoroton: My Lords, two points follow from that. First, the noble Lord does not want the special advocate procedure at all. Secondly, if the judge says that it has to be disclosed, then obviously the Secretary of State has to make his choice. However, if it cannot be disclosed on national security grounds, then it cannot be used.
Lord Thomas of Gresford: My Lords, the judge who is considering this material has the interests of the public at heart. That is why he is there. He is a public officer and he is clearly concerned to carry out a balance between the safety of the public and the rights of the defendant. Very often a judge will ensure that the material which is before him is not released. It is only when he says, "In my opinion, carrying out the balance between the public safety and the rights of the defendant, the rights of the defendant prevail", and the prosecution say, "In those circumstances we disagree with you, judge", that a prosecution is withdrawn. The judge does not sit there thinking to himself, "Forget about the public, forget about safety". That is his function in all these terrorist trials.
It is the noble and learned Lord the Lord Chancellor and the Government who say that the first way in which we should deal with terrorism is to bring them to court. If we bring them to court, we are not introducing special advocates in the criminal courts; we will be dealing with it along the lines of the system I have described. Sensitive material will be placed before the judge for a ruling.
If it can be done in a situation where there is enough evidence to say that a person really is a terrorist and you will prosecute him for that, and there is sensitive material which the judge will see, why can it not be done when the Home Secretary says, "We do not have enough material to make sure that he is a terrorist, but we have little bits and pieces. We have an intercept here; we have hearsay from over there; we have some very interesting evidence obtained by torture in Guantanamo. We can put all that together. We do not have a case, but this is so secret that we cannot disclose it to a High Court judge"? It is nonsense that that sort of differential should be brought forward from the Special Immigration Appeal Courtdealing with
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people who by definition are not citizens of this countryto deal with British citizens appearing in the High Court.
If there is enough evidence to prosecute them, therefore, the sensitive material is dealt with as it normally isthrough public interest immunity applications. If there is not enough, we have to have special advocates brought in to deal with it. It is complete nonsense.
I do not like the special advocate procedureand I am not alone. Two special advocates have resigned, saying that they could not do their job. They had to guess what their instructions would be when they saw some of the material that was secret. They could not go back to the client. They were not trusted, even obliquely, to ask, "Do you have anything to say about the fact that you were in..."wherever it was"on a particular day? Could you have been somewhere else?" or "Tell me where you were on that day". They cannot even do that.
The nine special advocates who reported and gave written evidence to the Constitutional Affairs Select Committee, which your Lordships will recall I read out at Second Reading, are not happy with it either. Nor is my noble friend Lord Carlile of Berriew, who made recommendations in a report a year ago and who said, in his current report which was published two weeks ago, that nothing had happened about the recommendations he made a year ago. He was calling then for more support for special advocates, and for the involvement of experienced criminal advocates instead of lawyers who are trained in administrative law. Nothing was done.
The noble and learned Lord the Lord Chancellor has not addressed at all the vital issue of torture, which was the central matter debated on this amendment. Nothing has been said about that. We heard what he said yesterday. It is totally unsatisfactory.
It is said that my amendment is unhelpful and misleading; that it would sow confusion and there would be no added value by having this amendment. I do not believe that is true. I believe that people should know that the rules which are to be formulated, and which would be subject to a resolution of both Houses of Parliament, should contain these principles. I do not suggest that it is the be-all and end-all and that everything is included in this amendment, but it gives the idea of precisely the sorts of areas that should be covered. It underlines the necessity for putting Article 6 on the face of the Bill and not for it to be said, "Of course these rules will comply with Article 6".
Why do I say that it is necessary to put it on the face of the Bill and for these particular provisions to be on the face of the Bill? Because the concept of a fair trial differs, depending upon the issue with which you are concerned.
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