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
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.

5 Responses

  1. Contact says:

    Thank you for your email and this comment. You are entirely right that my post was scattershot. It was indeed a rant.

    I also fully realise that detention without trial was effectively ruled out in the House of Lords overturning of SIAC in X v SS for the Home Department [2004] (although I have direct information on the effect of control orders on some of those released from Belmarsh that makes clear that control orders are not much better, if at all). This was why I said ‘was or is’ at the relevant point. I’d agree this wasn’t clear enough.

    I suspect that we might differ on whether SIAC was, in principle, a reasonable approach (or rather ‘least objectionable way’) to address the situation. My sense was that the process was always open to error and/or abuse because the ‘secret’ evidence was effectively uncontestable. The House of Lords judgement in Rehman simply made matters worse for me, although I fully understand why it was a tipping point for you.

    This fiasco over contradictory evidence confirmed both my fears over error/abuse and the inherent problems of a system where effectively uncontestable evidence is secretly presented. Particularly where all that is to proved is that the Home Secretary had grounds for suspicion that a threat to national security or interests, however indirect, might be involved.

    I competely accept that the lay person with security clearance and experience need not be a spook. That was a rhetorical stretch too far there. That it was a ‘defence’ barrister who caught the contradiction does make one question the effectivity of the security expert though, when they are presumably in place to catch issues with the intelligence.

    I hope you don’t mind, but I’ve posted your comment and this response on my blog

  2. Brian says:

    'Nearlylegal' has put some kind remarks about this exchange on his own blog (see trackback above), to which I have belatedly replied there as follows:

    Please forgive this disgracefully belated response to your more than generous remarks. For some reason I missed them at the time, probably because it was very soon after a nasty injury to my leg inflicted when my bike fell on me with me on it.

    Just one point of clarification. You wrote, very understandably:

    “That it was a ‘defence’ barrister who caught the contradiction does make one question the effectivity of the security expert though, when they are presumably in place to catch issues with the intelligence.”

    [The 'security expert' referred to in this context is the 'lay' member of the SIAC judicial panel who is appointed for his or her experience of intelligence and security matters.]  The point was that by pure chance the same Special Advocate (the security-cleared barrister who sees the ‘closed’ evidence and represents the appellant’s interests in the closed sessions from which the appellant and his lawyers are excluded) happened to be appointed to two different SIAC cases which involved some of the same, or related, closed material: so he was able to spot the inconsistencies between the closed evidence presented in one SIAC case and that presented in another. The ‘lay’ member of the SIAC panel, however experienced in security and intelligence matters, could not have done this unless he or she had also happened to sit on the two relevant cases. There are around 20 or so lay members of SIAC and it’s a matter of chance which of them sits on any particular case, and even longer odds against any one of them happening to sit on two cases which see overlapping — and mutually contradictory — closed evidence, as the Special Advocate providentially did.

    I agree of course that the Special Advocate’s discovery puts the reliability of the evidence in other cases in a pretty questionable light, although it’s not easy to see how similar abuses (or just possibly honest mistakes?) can be prevented in future without some elaborate and expensive procedure for expert review of the evidence in all SIAC cases in search of contradictions and inconsistencies. In any case, I don’t think this risk applies only to closed evidence: it could happen with the ordinary evidence heard in open court and available to the appellants and their lawyers, who would usually have no way of knowing whether any particular evidence in their own case was inconsistent with the open evidence in some other, apparently unconnected, SIAC case. Indeed, the fact that there are only a few Special Advocates appointed to SIAC must have shortened the odds against any one of them seeing the closed evidence in two different cases.

    On the more general point about closed evidence and closed sessions, I think it has to be accepted that in some exceptional cases there may be evidence against a person suspected of involvement in terrorism which can’t be revealed to him and his lawyers without a serious risk that its disclosure will enable them to identify its source: and when the source is a secret informer or mole working for the Security Service or Special Branch from within a small community such as a local mosque, blowing his cover could well put his life in danger (as well as making it impossible to recruit informers in the future, which would be a devastating blow to the chances or detecting and forestalling terrorism). If such evidence can’t be quickly corroborated by other means, there may be a choice between leaving at liberty a man known to be engaged in terrorism, or else prosecuting him and seeking a conviction based on evidence which will blow the cover of a secret informer. The SIAC procedure is the only escape from this dilemma so far devised, and although it’s open to obvious objection in denying a suspect the right to know all the evidence against him, it seems to me on balance that it’s marginally less objectionable (given the limited safeguards represented by the Special Advocate system) than any alternative. For that reason I would support introducing the procedure in very exceptional cases, and only when authorised by the presiding judge, in special criminal courts with a judge and jury for terrorism-related cases where the key evidence against the accused can’t safely be disclosed to him and his team without the risk of identifying a secret human source whose continued anonymity and safety must be paramount.

    But I quite understand the reasons of those who disagree about this. I don’t though know what other solution they propose.


  1. 12 October, 2006

    […] Lest we forget, this is the tribunal which hears evidence that is so secret that the Defendant isn’t allowed to know what it is, and in which there is no need for the Defendant to actually be charged with anything. […]

    Brian adds:   The full trackback is worth reading, but its attack uses such scattershot in all directions that its effect is somewhat blunted.  It's rather out of date in some respects and misrepresents what happens in SIAC in others.  But its anonymous author is right to be disturbed by the revelation that mutually contradictory closed evidence has been offered by the home office in two recent SIAC cases and that this has been discovered only by accident.  The official reviewer of anti-terrorism legislation has asked for more information about this and it may result in procedural changes designed to minimise the risk of it happening again.  Incidentally the 'nearlylegal' post is wrong to suggest that anyone with high security clearance and experience in dealing with intelligence and security material must be a spook or ex-spook. 

  2. 13 October, 2006

    […] But I am very impressed that Brian Barder, the ex-SIAC lay member who resigned on principle does. Mr Barder commented on my post via the trackback at his blog. I’ve posted a comment in response, but I’d like to post his comment and my response here, for two reasons. […]

  3. 7 January, 2008

    […] (Note however that this system has itself been criticised, with at least three people involved with it resigning because of their concerns: Brian Barder, a lay member of the Special Immigration and Appeals Commission panel; and Rick Scannell and Ian MacDonald, both Special Advocates.  Worth reading their concerns.) […]