Why I resigned from The Special Immigration Appeals Commission

In January 2004 I resigned from the Special Immigration Appeals Commission
(SIAC, which I pronounce SEE-ack, but some others call SIGH-ack) because I did
not feel able to play any further part in its proceedings.   I sat as
the lay member of the three-person SIAC panel (with the Chairman, a High Court
judge, and a Circuit judge who had long experience of immigration and human
rights cases) for its first ever hearing, when we allowed the appeal of a Muslim
cleric, Shafiq ur Rehman, living in the midlands with his family, against the
Home Secretary’s deportation order, issued on grounds that the man was a threat
to public security.  The Home Secretary appealed against our
decision.  The Court
of Appeal disallowed some of SIAC’s decisions on points of law,
and ruled, among other things, that the Home Secretary was not required to
prove, even on a low balance of probabilities, any specific activity by the
suspect as justification for deporting him:  he was entitled to take a
broad global view of all the circumstances in arriving at his decision. 
The Court ruled that when the Home Secretary said someone was a threat to
"national security", that needn’t mean simply the security of Britain:
activities that threatened the security of another country could indirectly
threaten Britain’s security because the other country might retaliate against
Britain’s interests.  The Home Secretary had not based his argument for
calling Mr Rehman a threat to Britain’s national interests, as he could
have done, but a threat to national interests could include a threat to
national  security because someone could be a threat to both (an
argument I still find baffling).  And the Court ruled that the Home
Secretary could deport someone even if he hadn’t done anything specific to
justify it but because he was reasonably suspected of being capable of posing a
threat in the future.  This seemed to me to leave SIAC with very little
scope for making an objective assessment of the reasonableness or otherwise of
the Home Secretary’s decisions to deport people on suspicion of activity of
which he disapproves.  The Law
Lords subsequently endorsed the findings of the Court of Appeal,
and so they became legally binding on SIAC in future cases.

The development which finally decided me against remaining a member of SIAC
was the Anti-terrorism, Crime and Security Act of 2001 which gave SIAC the
additional task of hearing appeals by persons indefinitely detained without
trial by the Home Secretary on suspicion of being connected with
terrorism.  These are foreigners who can’t be deported because there is no
country to which they can safely be sent.  Provision for sending people to
prison indefinitely and without trial and without even being charged with any
offence is in breach of Britain’s obligations under the Human Rights Convention
and the UK Human Rights Act, but the government managed to suspend the
application of the relevant part of the Convention by declaring a "state of
emergency", even though the situation bears almost no resemblance to the
kind of one-off crisis affecting the whole population which is envisaged
in the Convention as warranting this partial suspension.  It
seems quite obvious on common-sense grounds that there isn’t really an emergency
of that kind;  our ministers used the procedure purely to evade the ban on
indefinite detention without trial.  The whole procedure under which
suspects could be locked up for an indefinite time and never charged with any
offence has been defended by ministers partly on the grounds that the right of
appeal to SIAC is a reliable safeguard against abuse or error by the Home
Secretary.  But SIAC’s scope for questioning and where necessary overruling
the Home Secretary in these cases has been so drastically limited by the rulings
on the Rehman case of the Court of Appeal and the House of Lords that SIAC can’t
really be regarded as a reliable safeguard against abuse of the detention power,
and the whole procedure is so flawed and objectionable that I finally decided
that this was the last straw and that I couldn’t conscientiously have any
further involvement in it. 

When I sent the Lord Chancellor my letter of resignation from SIAC I told him
that I would be trying to bring the concerns which had caused me to resign to
public attention through the media.  I have accordingly written an article
for the London Review of Books (18 March 2004 issue) setting out the
issues in full.  The text
of the article is available on the London Review of Books 
website.  An edited
and up-dated version of the article was published in the Law section
of the Guardian on 16 March 2004.  I did an interview
about SIAC and the reasons for my resignation for the BBC radio 4 Today
programme on 15 March and Channel
4 television news has filmed a longer interview which is due to
be broadcast on the Channel 4 television news programme at 7 p.m. on Wednesday,
17 March, unless the budget that day squeezes it out.  I also gave the Guardian
some briefer comments which were reported,
also in the issue of 16 March, in the main news section by Audrey Gillan.

It’s hard to escape the conclusion that the intention of Parliament in
setting up SIAC as a safeguard against the misuse of the Home Secretary’s powers
to deport or detain people, without the need to charge or try them for any
offence, has been largely frustrated by the way the Court of Appeal and the House
of Lords have interpreted the law and in doing so has extended the discretionary
powers of the Home secretary so widely as to make him virtually unaccountable
for what he does.  Already Mr Blunkett and his Home Office ministers are
openly considering  introducing SIAC-style procedures for dealing with UK
citizens, not just foreigners, whom he suspects of involvement in terrorism but
where he hasn’t got enough hard evidence to charge them with any offence. 
This is a threat to our traditional liberties against which we need to be
vigilant, and to be vigilant we need to know the facts.  Please read the
articles mentioned in this piece by clicking on the links to them, and if you
share my concerns about what is happening, consider writing to a newspaper or an
internet message board or your MP or to the Home Secretary (or all of them)
explaining why you are concerned.

PS:  Channel 4’s admirable home affairs reporter Simon Israel has now
performed a public service by posting on the Channel 4 website an
exclusive story about how a notorious terrorist suspect now detained under
the Anti-Terrorism Act in Belmarsh was earlier approached by MI5 — or perhaps
he approached MI5 himself –with the suggestion that he might act as an informer
for them.  Very interesting stuff.   Equally interestingly and
usefully, Simon Israel has also managed to lay hands on a copy of the SIAC
judgment in the same case, and has put
it on the Web:  a rare chance to read a SIAC judgment in the original,
as they are almost impossible to get hold of in any other way.  Thanks,
Simon, for that.