My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.
First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,
“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.
This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.
The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):
“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.
The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.
Amendment 64 covers the same points in Clause 8. Clause 8(1) states:
“The appropriate law officer may appoint a person to represent the interests of a party”.
For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.
Amendment 65 amends the same clause by removing the words,
“in any section 6”
and replacing them with,
“as soon as practicable following”
an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.
The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,
“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,
if he feels that is opportune.
Amendment 66 goes back again to Clause 8. Clause 8(4) states:
“A person appointed as a special advocate is not responsible to the party”.
That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,
“responsible for representing the interests of”.
That understands the positive nature of it but does not imply the normal professional duty and relationship.
Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,
“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.
I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.
On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.
To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring
that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.
The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,
“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.
That is the first reason. The fifth reason refers to:
“A systemic problem with prejudicially late disclosure by the Government”.
The seventh reason refers to:
“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.
These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.