The Government and the Court or Tribunal (which is security vetted) have access to all the material, both public and secret. The Claimant does not. A security vetted Special Advocate is supposed to represent the individual’s interests. The use of a Special Advocate follows a two-stage procedure. At the first stage, the Special Advocate does not have access to the secret material and can seek instructions from the individual without restriction. However, after the Special Advocate has seen the secret material, the individual can only send written instructions to the Special Advocate, and the Special Advocate has to seek permission from the Government and the Court or Tribunal to take instructions from the individual. In practice, permission is rarely granted. The Special Advocate then is supposed to represent the individual’s interests during the secret hearings.

 

The main contexts where secret evidence and Special Advocates have been relied upon are Parole Board hearings, the Special Immigration Appeals Commission (“SIAC”), Control Orders in the High Court and governmental employees in the Employment Tribunals and Security Vetting Appeals Panel.

 

However, there is provision in a wider range of circumstances including the County Court.

 

The use of secret evidence causes significant unfairness in the procedure. The Special Advocate is supposed to minimise this. However, the courts’ views as to what must be done to ensure fairness have been changing very rapidly.

 

II. The Previous Case Law

 

The previous Control Order case law may be relevant because although it no longer applies in Control Order cases, the government is arguing that it applies in other types of cases.

 

Until this year, the leading Control Order case was the House of Lords case of SSHD v MB and AF [2008] 1 AC 440 (“MB”). The emphasis of MB was for a judge to look at fairness “in the round.” There was little distinction made between a fair procedure and a fair outcome. However, the very different speeches of their Lordships in MB caused massive confusion for lawyers and the courts. Two issues remained unclear, which the Court of Appeal purported to clarify in the case of SSHD v AF and others [2008] EWCA Civ 1015 (“AF”). AF concluded by a 2:1 majority that: (1) the “core irreducible minimum” of the allegations did not have to be disclosed, and (2) disclosure did not have to be made if it would have made no difference.

 

III. Recent Authority

 

A v United Kingdom in the European Court of Human Rights, Case No 3455/05, 19 February 2009, started out as a SIAC case where individuals had been certified as a risk to national security and suspected international terrorists, and detained pursuant to Part 4 of the Anti-Terrorism Crime and Security Act 2001. In A (FC) and others (FC) v SSHD [2004] UKHL 56, the House of Lords had ruled Part 4 contrary to Articles 5 and 14 of the European Convention on Human Rights. However, the declaration of incompatibility was not binding on the parties, so they lodged a complaint with the European Court of Human Rights. In A v United Kingdom, Strasbourg emphasised the procedural importance of a fair trial. It held that unless the detainee is provided with sufficient information about the allegations against him to enable him to give effective instructions to a special advocate, there will be a breach of Article 6. In practice this means that the government will be put to an election whether to disclose the information relied upon, or not to rely upon it.

 

A v United Kingdom was extended to the Control Order system by the House of Lords in the case of SSHD v AF and another [2009] UKHL 28 (“AF”), 10 June 2009.

 

The current position in Control Order cases is essentially:

 

(1) All significant allegations must be disclosed;

(2) Sufficient detail must be disclosed to allow an effective challenge;

(3) If sufficient detail of the allegations is disclosed, the evidence or sources do not have to be disclosed;

(4) However, if the disclosure of the allegation would disclose the evidence or its source, these still must be disclosed;

(5) Disclosure of evidence and sources may be required if this is necessary to allow an effective challenge; and

(6) The apparent strength of the case against the individual is immaterial.

 

IV. Consequences for Control Orders

 

The Control Order for a detainee AF was revoked on 7 September 2009. Detainee AE’s Control Order was revoked on the 24 September 2009. Some commentators are now saying that the system is untenable. The government’s current position, set out by the Home Secretary Alan Johnson on the 16 September 2009 in his Quarterly Report to Parliament is that the Control Order system remains viable. However, he has asked the Independent Reviewer of the Terrorism Act 2005, Lord Carlile of Berriew QC whether this assessment is correct.

 

V. Other Cases

 

Secret evidence and Special Advocates are permitted in other circumstances, though there have been few authoritative judgments.

 

In the employment context, both secret evidence and Special Advocates are permitted. See Rule 54 of the Employment Tribunal Rules of Procedure 2004 and the Employment Tribunal (National Security) Rules of Procedure 2004. A number of government employees who have claimed race and religious discrimination by government departments have been subject to this procedure. The system has been challenged as contrary to European Convention on Human Rights and European Community law in the case of Tariq v Home Office UKEAT/0245/09, which was heard in the Employment Appeal Tribunal on the 7 and 8 July 2009. However, the Government has argued that principles akin to MB should apply. Judgment is expected any day now.

 

There is also a procedure for government employees whose security clearance is withdrawn due to concerns about involvement in terrorism, espionage etc.

 

After internal appeals are exhausted, they have an appeal to a QUANGO, the Security Vetting Appeals Panel. This is a body run by the cabinet office and chaired by a former High Court judge. A challenge to the procedure as being incompatible with Article 6 of the European Convention on Human Rights is listed in the case of Gulamhussein v Home Office on the 20 November 2009.

 

There is provision for Special Advocates in a wider range of other proceedings.

 

However, in these cases, it has not yet been decided whether the old MB approach should apply or the new A v United Kingdom and AF approach should prevail.