Last Thursday, in a little-noticed ruling in the Court of Appeal, three judges — Lord Justice Jacob, Lord Justice Sullivan and Sir David Keene — turned down appeals submitted by eight foreign nationals against the Home Secretary’s decision to deport them “on grounds of national security.” The government’s decision had previously been upheld by the Special Immigration Appeals Commission (SIAC), which deals with deportation issues involving terrorism.
Seven of the men appealing against the government’s decision to deport them are Algerians (identified as W, Z, G, BB, U, Y and PP), and the eighth (identified as VV, but also publicly identified as Hussain al-Samamara) is Jordanian. As the judges noted, “Each claimed that he would be at risk of treatment contrary to Article 3 of the European Convention on Human rights (‘ECHR’), were he to be deported.” Article 3 of the ECHR states, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” but on Thursday the Court of Appeal was not dealing specifically with the question of whether the men would face torture if deported, as this was a question that had been dealt with by the Law Lords in a ruling in February 2009, when they decided that Abu Qatada and two of the Algerians whose appeals were heard last Thursday (U and BB) could be deported because, alarmingly, they were satisfied that human rights groups would be able to monitor whether the Algerian and Jordanian governments were sticking to their promises not to subject the men to torture or other ill-treatment.
Instead of dealing with this issue (which is on appeal to the European Court of Human Rights), the Court of Appeal was required only to address two specific questions: firstly, whether there is “an irreducible minimum of information” that the Secretary of State “is bound to provide to the appellant in the interests of procedural fairness”; and secondly, whether there is any “procedural protection” for witnesses prepared to testify on behalf of any of the men, to ensure that any sensitive information they might provide, which could, for example, endanger their own lives, would be treated confidentially by the Home Secretary, and would not, for example, be shared with the intelligence services of other countries.
The first question strikes to the heart of the anti-terror policies conceived by the Labour government: namely that, in some cases, where it is inconvenient to find ways to use sensitive intelligence material in open court, while protecting the security services’ sources and methods, the government can justify holding men without charge or trial on the basis of secret evidence that can only be discussed in closed court hearings.
In order to give this system a veneer of fairness, the government arranged for special advocates to represent detainees in the closed hearings, but the problem with this attempt at transparency was that the special advocates were unable to relay anything that took place in these hearings to their clients, leaving them unable to ascertain what, exactly, they were accused of, and also, of course, unable to challenge it effectively.
In an important ruling last June, the Law Lords dealt with one aspect of the secret evidence regime — control orders, renewed annually by Parliament, which enable the government to hold suspects (both British and foreign nationals) under a form of house arrest, subjected to curfews of up to 18 hours a day, the vetting of visitors, a prohibition on the use of the Internet or mobile phones, and, in some cases, forced relocation within the UK.
In their unanimous ruling last June, the Law Lords concluded that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, because a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”
In the ruling, Lord Phillips of Worth Matravers, the senior Law Lord, wrote, “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him.” Reinforcing this opinion, Lord Hope of Craigshead declared, “The principle that the accused has the right to know what is being alleged against him has a long pedigree … The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case against him,” and Lord Scott of Foscote wrote:
An essential requirement of a fair hearing is that a party against whom allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail necessary to be given must, in my opinion, be sufficient to enable the opportunity to be a real one. The disclosure made to each of these appellants was insufficient to afford him a real opportunity for rebuttal. He did not, therefore, have a fair hearing for Article 6(1) purposes and these appeals must be allowed.
In response to the ruling, the Labour government struggled to maintain the control order regime, losing a number of court cases, and quietly dropping other control orders. Nevertheless, the system is still functioning, and has been maintained by the new coalition government, although a comprehensive review has been promised. The urgency of this review was highlighted last week, when the Court of Appeal ruled that two control orders imposed in 2006 and revoked last autumn should have been quashed rather then revoked, meaning that they were unjustly imposed in the first place, and that the men in question may now claim compensation.
For those of us who, like the Law Lords, believe that “A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him,” the blow to the control order regime has been a vindication of our insistence that no perceived emergency justifies abandoning the rule of law and replacing it with a Kafkaesque system of secret evidence and special advocates, operating in a special court — the Special Immigration Appeals Commission — that, in the words of Dinah Rose QC, a former special advocate who now defends a number of terror suspects:
looks and sounds like a court, and the judges and barristers behave with the courtesy and formalities that are used in court, [although] it is in reality nothing of the kind. Often it feels to me like an elaborate charade, in which we are all playing the roles of barrister, solicitor, appellant and judge, but where the basic substance of a court hearing — the testing of evidence to establish where truth lies — is entirely missing.
However, in contrast to the control order regime (which affects British nationals and foreign nationals who have won appeals against deportation), a parallel system, involving foreign nationals whom the government and the courts wish to deport, was not affected by the Law Lords’ ruling last June, and it was this discrepancy that the eight men sought to address last Thursday.
On December 1 last year, it seemed that this discrepancy had finally been addressed, when two High Court judges, Lord Justice Laws and Mr. Justice Owen, ruled that it was “impossible” to conclude “that in bail cases a less stringent procedural standard is required” than in the control order cases. However, as Ronnie Graham of Birnberg Peirce explained to me, this ruling applied only to the circumstances surrounding the granting of bail to deportation detainees, and not to their actual deportation proceedings.
Ronnie added, “We argued that the same standard of procedural fairness should apply in SIAC bail and SIAC deportation proceedings,” but unfortunately the Court of Appeal disagreed, even though Sir David Keene, who wrote the judgment that was fully endorsed by his colleagues, acknowledged that the men had touched on a profoundly important issue, when he explained:
The appellants raise important and forceful points on this issue. There is no doubt that to deprive anyone, including an alien, of even the essence of the case put against him as to why he is a threat to national security goes against the basic concept of a fair trial. The presence of a special advocate to protect his interests may be a palliative, but since the special advocate cannot discuss the closed material with an appellant in SIAC proceedings, he cannot obtain the latter’s instructions on it or discover what answer the appellant might be able to provide … Knowing what material adverse to you the court has seen is undoubtedly a fundamental right as a matter of English common law and is not dependent on the ECHR.
However, as he proceeded to point out, the Court was unable to address the men’s complaints for two reasons: firstly, because Parliament has accepted that, in deportation cases, the “fundamental right” to a fair trial has been ruled out on the basis of national security; and secondly, because of a precedent in the European Court of Human Rights, which was cited by SIAC when it endorsed the government’s plans to deport the men.
With reference to the first point, the Court of Appeal drew on a previous ruling, in an unrelated case, in which Lord Hoffman had stated, “Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. But it must squarely confront what it is doing.” Concluding that this was indeed what had happened in the deportation cases, Sir David Keene wrote, “Parliament has clearly confronted the fact that the right to a fair trial was being curtailed. I accept that there will be instances where there is obvious unfairness to an appellant, but it is an unfairness which Parliament has patently intended and authorised.”
With reference to the second point, the Court of Appeal drew on the words of Lord Brown in the Law Lords’ ruling on control orders in June 2009 (known as AF (No. 3)):
[T]he processes involved in cases concerning the expulsion of undesirable aliens are beyond the reach of Article 6 [of the ECHR, guaranteeing the right to fair trial]. That is because the alien’s civil rights are not engaged where deportation proceedings are concerned [based on Maaouia v. France, a ruling in 2000 in the European Court of Human Rights]. Article 6 is not engaged even where the order for deportation has an incidental effect on rights under other articles of the ECHR, such as Article 3 [the torture prohibition].
As Ronnie Graham confirmed, in Maaouia, the European Court “ruled that nationals of countries who are not signatories to the European Convention of Human Rights don’t receive the protection of ECHR procedural rights such as those under Article 6 in deportation proceedings,” even if that could lead to the men in question facing torture, and even though any involvement in torture is prohibited — if not, in this case, under the ECHR, then under the UN Convention Against Torture, to which the UK is a signatory.
The absurd outcome for the men whose appeals were considered last week, as Ronnie Graham also confirmed, is that “those subject to SIAC bail are entitled to procedural fairness provided by Article 6 in their bail proceedings, but not in their SIAC deportation proceedings.”
On the second question posed by the eight men — whether there is any “procedural protection” for witnesses prepared to testify on their behalf — the judges concluded, for a second time, that there is no level playing field in terrorism cases involving secret evidence. Just as Parliament and the European Court have removed the right to a fair trial in the cases of foreign nationals facing deportation on national security grounds, so the use of secret evidence is a one-sided affair, in which the government can protect its own sources, so that the men in question may not even know the case against them, but those accused of terrorism cannot provide their own secret evidence.
The government’s lawyers contended that “the appellant’s arguments amounted to seeking to injunct the government from discussing potentially important information with the government of a state with which the United Kingdom enjoyed friendly diplomatic relations,” and “submitted that the proposed procedure was unworkable,” and the judges agreed. As Sir David Keene explained, drawing on a different scenario than the “friendly diplomatic relations” argument favoured by the government:
It might be that the appellant’s material, innocuous when seen in isolation, becomes of vital diplomatic importance once combined with material in the possession of the Secretary of State. As was explored in argument, it might reveal a potential terrorist risk within the foreign state. It might indicate that, instead of the appellant having been the perpetrator of a terrorist outrage, as suspected hitherto, the true culprit remains at large in the foreign state and presents a real and imminent threat to that state.
This is not the end of the road for the eight men, as they have two weeks in which to submit an appeal to the Supreme Court, but it is yet another blow to what remains of their long-cherished hope that the British government and the courts would not proceed with their deportations, endangering Britain’s commitment to the ECHR and the UN Convention Against Torture, when all they have ever asked for is a fair trial.
Note: For further information about the eight men involved in the appeal, see the Cageprisoners report, “Detention Immorality: The impact of UK domestic counter-terrorism policies on those detained in the War on Terror,” which covers the cases of men facing deportation or extradition, and those on control orders.
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