My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:
“The use of Special Advocates has proven to be highly controversial”.
The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
The Constitution Committee report continued:
“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,
which stated:
“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.
The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,
“enjoys a high degree of confidence among the judiciary”—
pointed out that the system is,
“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.
Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,
“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,
that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,
“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.
That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.
5.45 pm
A few weeks ago I listened to a radio programme, “File on 4”, which dealt with some of the Bill’s aspects that we are debating. It was striking that there was reference in that discussion to the roughly equivalent position occupied by advocates here compared with those acting for detainees at Guantanamo Bay under the American system. A British advocate had experience of both systems. It was remarkable that far fewer restrictions were imposed even on those whom the Americans were holding in Guantanamo Bay, in conditions which many of us would find repugnant, than apply here. Admittedly, there could be criminal proceedings and the rules will not apply to criminal cases in this country, as the noble and learned Lord reminded us. However, it struck me rather forcefully that the American system which many of us criticise provides better support for people in this position than will apparently be the case under these provisions. In response, the Lord Chancellor rather airily dismissed this comparison and implied that all is well. He tends to paint with a broad brush, of course, but in matters of this kind a rather more pointillist approach would be better. Considering the detailed objections to the current process would be a better approach than simply assuring the world at large that all is well.
I have a great deal of sympathy with most of the amendments moved and spoken to by the noble Lord, Lord Hodgson. Indeed, my noble friend Lady Smith and I have subscribed to Amendment 64, dealing with the appointment of special advocates. We envisage not quite a lawyer-client relationship, but something closer to that than the rather anomalous and, as it were, free-floating position that the present status appears to involve. We feel that the special advocates—all of whom are vetted and very experienced—should have a greater role in the proceedings in order to test the applications that will be made.
It would be interesting to know a little more about the experience of special advocates in the other context in which they operate. I understand that the result of the intervention of special advocates in control order cases is often the disclosure of more material than was originally envisaged. I know that the noble and learned Lord will be unable to supply an answer this afternoon, but I wonder whether there is a record of the number of occasions that special advocates succeeded in securing the disclosure of more material. That would indicate that their role really needs to be reinforced and endorsed in the context of the Bill.
It is also the view of the Opposition that the application should be heard in the presence of a special advocate and that the special advocate should be empowered to apply for more material to be uncovered. In particular, the two proposed subsections in Amendment 63 are worthy of the Government’s consideration. I remind your Lordships that Amendment 63 would, first, provide that the special advocate has the opportunity to take instructions from the party whose interests he is appointed to represent; and, secondly, that he should be at liberty to apply to the court that any relevant material should be disclosed. It may be that the Minister would not go so far in respect of the second limb as the amendment suggests. I hope that he would. However, if he would not, would he consider at least providing the special advocate with the capacity to take instructions before seeing the secret material that is disclosed? It would be better if the special advocate had knowledge of what was in that category, but at the very least he should be able to take instructions on the generality of the case, so far as it is apparent at the time of his being instructed. That does not seem to be envisaged within the Bill’s current arrangements. That would not be even a halfway house, but it would at least be an improvement if that were a possibility.
This group of amendments is clearly designed to strengthen the special advocate’s role. It would therefore allow some redressing of the balance in favour of those whose rights as a party are inhibited by the Bill’s provisions. It is an area which I hope the Government will think very carefully about. These are quite draconian measures in terms of the party’s capacity to have a case properly presented. Given the high level of security already involved in the employment of special advocates, and their integrity, it seems necessary to ensure that they have the wherewithal to provide a proper service to the parties and, indeed, to the court.
The noble Lord, Lord Thomas, makes a valid point in raising the question of who should pay. Special advocates could, in a sense, be regarded as acting as amicus curiae. Therefore, perhaps the state should pay.
Given the limited role which the Bill envisages, it would be strange if the party whose interests they are seeking to represent were required to pay. The party would be getting less than the normal service which the noble and learned Lord would be offering, if he were instructed on their behalf. It seems proper—I assume that it will the case, but perhaps the noble and learned Lord could confirm it—that the state should fund the relevant costs. However, the more important question is the role that the special advocates are able to pursue. In the view of the noble Lords who have spoken, and indeed in the view of the Opposition, the Bill does not currently confer sufficient discretion to enable them to do their job, not only on behalf of the parties but also in the interests of justice and to assist the court.