Constitutional Affairs Committee

Press notice 16 of Session 2004-05                        2 April 2005

The Special Immigration Appeals Commission (SIAC) and the use of Special Advocates

SIAC UNDER FIRE: SPECIAL ADVOCATES SYSTEM MUST BE OVERHAULED, SAY MPs-call for introduction of a new statutory test to review Home Secretary's Control Order Decisions

The system that strictly limits Special Advocates' access to suspected terrorists who are subject to restrictions on their liberty under the new Prevention of Terrorism Act, is critically flawed and must be radically improved.

The conclusion is one of many in a new Report published today by the Constitutional Affairs Committee.

The Committee believes the current system is defective and must be made fairer. The Report is calling on the Government to ensure that:

¸ Special Advocates - security cleared lawyers - are allowed to communicate with appellants and their legal advisers after the Special Advocates have seen so-called 'closed' or secret material. This would allow Special Advocates to establish whether the charges or evidence can be challenged and provide an opportunity to develop a coherent legal strategy.

¸ Support is given to Special Advocates by security cleared staff to help them research and assess secret material and ensure that suspects obtain a fair trial. An Office of Special Advocates should be established and could be staffed by intelligence service personnel to support Special Advocates in the handling of secret material.

The Report also looks at the appeal mechanism for control orders. It calls for plans to allow a narrow judicial review of control orders to be replaced by an objective and fairer statutory appeal. The new system would be able to consider whether the Home Secretary had sufficient evidence to justify his reasonable suspicion that a person was involved in terrorism related activities.

The Report is the result of an inquiry into the use of Special Advocates and the lessons learned from the experience of the Special Immigration Appeals Commission's  (SIAC) operation for eight years.

Commenting, Committee Chairman the Rt Hon Alan Beith MP said:
"The Special Advocate system lacks the most basic features that make for a fair trial. It was devised for immigration cases involving security as an alternative to a process that was even more unsatisfactory.
Once it was applied to the Belmarsh detention cases and the new control orders its defects became much more significant. To deprive someone of their liberty without telling them the charge or the evidence is completely foreign to our system of justice.
If security considerations require the use of an alternative system - and I would have preferred an investigating judge rather than Special Advocates - then the system must allow some communication between the Special Advocates and their clients, even after closed material has been seen.
At present, Special Advocates are allowed almost no contact with those they are representing once they have seen the closed material. This should be reviewed as a matter of urgency.
It should be possible to construct appropriate safeguards to ensure national security in such circumstances and this is essential to bring some fairness into the Special Advocate system.
The Government must also establish a fully independent Office of Special Advocate to ensure adequate support for their work and could consider providing intelligence service personnel to support Special Advocates in the handling of secret material. Another key recommendation focuses on control orders. Parliament has accepted that the Home Secretary only has to demonstrate a 'reasonable suspicion' that someone is engaged in prescribed activity. Under a judicial review of any such decision, a judge would only consider whether the Home Secretary's decision was reasonable. The judge would not consider whether there was sufficient evidence to justify that suspicion. The Committee believes that the system needs a fairer test whereby the Home Secretary would have to prove that the material objectively justified his reasonable suspicion.
We were able to secure various improvements to the 2005 legislation from the Attorney General and the Lord Chancellor during the course of our inquiry. However, the Government must provide further safeguards to improve the fairness of this controversial system."

1. The Special Immigration Appeals Commission was established in 1997 to hear appeals from foreign nationals detained on suspicion of terrorism. It introduced to Britain the use of Special Advocates (security-cleared lawyers) for cases involving classified material. The system has now been imported into the new Prevention of Terrorism Act 2005, with the use of Special Advocate procedures being transferred to the High Court for cases involving control orders
2. The inquiry aimed to: examine the workings of the Special Immigration Appeals Commission; consider how the operation of SIAC impacts upon the legal and human rights of appellants; question whether it offers appropriate safeguards against inappropriate detention or deportation; investigate whether procedures established to deal with immigration rights are adequate for decisions involving lengthy periods of custody
3. Oral evidence was taken from one former and two current Special Advocates, a solicitor representing some of the detainees who have appeared before SIAC and representatives of JUSTICE, Liberty and Amnesty International. The Committee also heard from the Lord Chancellor, Rt Hon Lord Falconer of Thoroton QC and, in his first appearance before the Constitutional Affairs Select Committee, the Attorney General, Rt Hon Lord Goldsmith QC. A number of written submissions were received including two statements signed by the majority of the Special Advocates currently acting before SIAC.
4. During the course of the inquiry (which coincided with parliamentary consideration of the Prevention of Terrorism Bill 2005), the Committee gained two important concessions from the Government. The Attorney General gave an undertaking that some support (logistical and professional) would be provided to Special Advocates and that their appointment would be through open competition in the future. The Lord Chancellor indicated that the schedule to the Prevention of Terrorism Act 2005 was changed as a result of our inquiry in respect of the disclosure of exculpatory material.
5. Constitutional Affairs Committee Membership: Rt Hon Alan Beith (Chairman), Peter Bottomley, Mr Hilton Dawson, Mr James Clappison, Ross Cranston QC, Mr Andrew Rosindell, Mr Clive Soley, Mrs Ann Cryer, Keith Vaz, Mr Jim Cunningham, Dr Alan Whitehead
6. Press notice: 16