My Lords, I support two particular aspects of this group of amendments. Following the comments of my noble friend Lady Williams, I, too,
agree with the wording in the Bill in relation to the duties and responsibilities of the special advocates. In fact, while the Joint Committee on Human Rights was taking evidence, with the special advocates and lawyers in front of us, questions kept coming up about what their professional duties were to their client, with whom they could not communicate. It seemed to me, as a former lawyer, that it was perhaps one of the safest areas in many respects to have a client because there was no way that you could be sued for negligence when you could not communicate with the person whom you were supposed to be representing. It is a very unusual situation to put a professional in. We asked whether the Bar Council had given any guidance to advocates in this situation. I, too, found it very harsh for the Bill to say that the advocate is not responsible for the interests of the person whom they represent and I think that some more positive duty in the Bill would assist.
I also support proposed subsection (7) in Amendment 67, although it is not clear because it is an extension of the professional duties. Normally it is very clear to lawyers that they can withdraw from a case in certain situations, which are outlined in professional guidance. It is not clear whether a special advocate would have the same ability to withdraw from proceedings. I was always amazed that you could often be faced with two lever-arch files of A4 paper that contained the case papers, and when you got to trial, the trial boiled down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes central to the case. So there may be one or two determining facts in a case. An advocate might be faced with information from the police and security services putting a connotation on certain facts, and be unable to turn to their client and say, “Where were you in August?”. In those circumstances the advocate might feel professionally that they could not represent the client’s interests properly. It is a corollary, I believe, of the situation that I raised in relation to previous amendments. In certain cases the judge may be in that situation as well, where one or two facts are so key to a case that, without hearing the claimant’s explanation of those facts, the case cannot be determined fairly. So this subsection gives the special advocate clarity that they can, in those circumstances, withdraw from the case. Therefore I support my noble friend’s amendments.