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SIAC) and the Use of Special Advocates House of Commons Constitutional Affairs Committee The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates Seventh Report of Session 2004–05 Volume II Oral and written evidence Ordered by The House of Commons to be printed 9 February and 22 March 2005 HC 323-II Published on 3 April 2005 by authority of the House of Commons London: The Stationery Office Limited £14.50 Witnesses Tuesday 22 February 2005 Neil Garnham QC, Special Advocate Martin Chamberlain, Special Advocate Gareth Peirce, Civil Rights Solicitor Ian MacDonald QC Ev 1 Dr Eric Metcalfe, JUSTICE Gareth Crossman, Liberty Livio Zilli, Amnesty International Ev 12 Tuesday 1 March 2005 Rt Hon Lord Falconer of Thoroton QC, Secretary of State for Constitutional Affairs and Lord Chancellor Alex Allan, Permanent Secretary, Department for Constitutional Affairs Ev 18 Tuesday 8 March 2005 Rt Hon Lord Goldsmith QC, Attorney General Ev 30 List of written evidence Lord Carlile of Berriew QC Ev 38 Anver Jeevanjee Ev 40 UK Office of the United Nations High Commissioner for Refugees (UNHCR) Ev 41 The Law Society Ev 42 Amnesty International Ev 44 Department for Constitutional Affairs Ev 47 A number of Special Advocates Ev 53 JUSTICE Ev 61 Sir Brian Barder KCMG Ev 71 Liberty Ev 74 Rt Hon Lord Goldsmith QC Ev 76 Rt Hon Lord Falconer of Thoroton QC Ev 81 Ev 1 Oral evidence Taken before the Constitutional Affairs Committee on Tuesday 22 February 2005 Members present: Mr A J Beith, in the Chair Peter Bottomley Keith Vaz Ross Cranston Dr Alan Whitehead Mr Clive Soley Witnesses: Neil Garnham QC and Martin Chamberlain, Special Advocates; Gareth Peirce, Civil Rights Solicitor; and Ian MacDonald QC, examined. Q1 Chairman: Gareth Peirce, Ian MacDonald, Neil a criminal trial. It was indeed deceitful to suggest Garnham and Martin Chamberlain, thank you for that this was somehow relevant to immigration coming this morning. We look forward very much when it was an arbitrary choice of a number of to the evidence we are going to hear from you. It foreign nationals, but what was being said was, is obviously extremely timely with the Home “You are guilty of criminal oVences. We know you Secretary making an announcement later today, are. We cannot go near a court and we do not want but I think it would be helpful if I could first clarify to go near a court, so we are going to have this something which would remain significant even if shoddy process where you are not told the today’s announcement gives us a whole new line of evidence, where it is heard in secret, where your questions to ask, and it is particularly directed lawyers cannot investigate, where you will never towards those who have served as Special know what is happening, you will never know the Advocates. This process was introduced as a means length of sentence and you will never know how of challenging the arbitrary decision to deport you can progress”. All of this, all in one, was somebody from this country, so if that was all it deceitfully suggested as being an immigration was still doing and it had not become a process for situation, but now it is being broadened to locking people up in Belmarsh, would it be a everybody potentially. process you would be happy to continue to take part in? Q3 Chairman: Let’s start to look at some of the Ian MacDonald: Well, I think that question sounds issues which arise in trying to conduct a process of as if it is directed principally towards me because this kind either for immigration or, very I have resigned. When SIAC was first introduced significantly, for the deprivation of liberty, the following recommendations by the European detention. Are there suYcient procedures in place Court in the case of Chahal, the improvement on to ensure that closed material is reviewed against what we had before was very big and on current developments, such as disclosures in foreign deportation, I do not think you could describe proceedings and can that process work? them as “arbitrary”, but deportation proceedings Gareth Peirce: Can I make one other intervention and exclusions from the country both operated. I because it is a part of the deceit that was brought initially took the view that that was a big upon Parliament in the first place. Parliament was improvement on what had happened before reassured that this would be a last resort and that because it introduced an element of fairness which every consideration would have been given to had previously been lacking. My objection was prosecuting people under the normal rules. None when you tacked on the jurisdiction under the Anti- of the detainees was ever arrested, was ever Terrorism Act to SIAC which was purely an questioned and now, three years later, none of them immigration court, and at first I stayed on because has ever even been spoken to, so if one is now on I thought that I might be able to make a diVerence, the cusp of considering new procedures for but eventually one had to balance that against everybody, the basicquestion remains: why, if we really being some kind of fig-leaf of respectability have so much legislation in place to deal with and legitimacy to a process which I found odious. investigation into terrorism, was it all jettisoned and people simply arrested first of all rather than Q2 Chairman: Does anybody else want to comment last of all? on SIAC as an immigration tribunal, which it originally was? Q4 Chairman: There are some wider questions Gareth Peirce: As a non-immigration lawyer, when there which are not what this Committee is the legislation came in, I found that colleagues who currently trying to do, although numerous other were immigration lawyers were used to a very raw bodies, on one of which I served, have done so. deal and were not as astonished as I was and What we are actually trying to look at is whether shocked at what was a removal of all the rights of this process works as a court and whether it can Ev 2 22 February 2005 Neil Garnham QC, Martin Chamberlain, Gareth Peirce and Ian MacDonald QC work as a court either for a less unacceptable Parliament take of the merits of the system as a jurisdiction, namely the civil decision about whole, about which I say nothing, there are ways whether to deport someone or the depravation of in which it could be made to work more eVectively. liberty and the imputation of a criminal oVence or Martin Chamberlain: Specifically on the question of indeed, if it goes on to control orders, an actual disclosure, the problem that we face is that we have criminal oVence in breach of those orders. It is in a vast body of material and we suspect, on that context I just want to establish what happens. occasion, that some of that material is not in fact I think many of us, as Members of Parliament, and secret because it is likely to have been disclosed in perhaps the publicneed to know a bit more about the course of criminal proceedings abroad. The what actually happens under SIAC procedures and problem that we have is that there is a vast number that is why I wanted to find out how you deal with of jurisdictions in which those criminal proceedings the disclosure of material, so perhaps I can go back may be taking place and we simply do not know to my earlier question, which is: are there suYcient whether the material has or has not been disclosed. procedures to ensure that there is a continued We do know, because we have pressed on a number review of closed material, particularly when of occasions, that some of the material has been elsewhere information may be coming to light disclosed in foreign criminal proceedings. We which challenges that material? simply do not have any systematicmeans of discovering which material has and which material Ian MacDonald: It is quite diYcult for, I think, any has not because we do not have the resources that of the Special Advocates or ex-Special Advocates enable us to perform those sorts of exhaustive to answer that without disclosing things that we are checks, and that is one of the matters that we have not allowed to disclose and that is one of the identified as seriously limiting the extent to which problems about assisting your Committee. I we can perform a useful function for the appellants suspect that there is a tendency, since on the whole in our cases. the evidence given to SIAC is given by one section of the Intelligence Services, that there is a little bit of a hermeticseal around the kind of co-operation Q5 Chairman: What about exculpatory material, that they may have with other bodies and, in material which would assist the defence or might particular, the police. assist the defence? What about the procedures for Neil Garnham: If I may answer two questions, the refusing to disclose exculpatory material? Can you first is whether I was content and remain content throw any light on that? Ian MacDonald: One of the problems you have to act as a Special Advocate in respect of the old with exculpatory material is that you may not proceedings, and the answer is yes. It seems to me know that it is exculpatory. Can I just give you the that that was a significant improvement on what example that comes to mind which is the kind of predated it.
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