Brian Barder explains why he resigned from the Special Immigration Appeals Commission
When I was asked, in November 1997, whether I would allow my name to be submitted to the Lord Chancellor for appointment as a lay member of the new Special Immigration Appeals Commission, I readily agreed, not only because I was flattered, but because I accepted that special procedures for appeals against deportation in national security cases were justified. I believed that SIAC, though imperfect, was probably the best way of giving maximum protection both to those appealing against deportation and to the sources of information essential to the effective functioning of the security services. I heard the commission’s first case and nothing caused me there and then to think I was mistaken in my beliefs. But subsequent developments forced me to conclude that I could not in all conscience play any further part in SIAC, and in January this year I resigned.
SIAC, formally a ‘superior court of record’, is the sole court of appeal for foreigners living in Britain whom the home secretary wants to deport on national security grounds when some of the evidence against them is considered too secret to be disclosed. It was originally established with powers to confirm, amend or reverse the home secretary’s deportation orders and to issue binding directions to him when an order seemed to be unjustified. It was set up in response to a ruling by the European Court of Human Rights that the previous system – an advisory panel of ‘three wise men’, sitting in secret and giving unenforceable advice to the home secretary on the correctness or otherwise of his decision – was in breach of the Convention on Human Rights, which entitles anyone whose rights and freedoms under the convention have been violated to appeal before a court of law.[*]
The chairman of each SIAC hearing is a high court judge. The second member is drawn from a panel of judges with experience in hearing appeals on ordinary immigration matters. The third member, a layperson, is someone with experience of analysing and assessing secret intelligence and with high security clearance. When SIAC was first established, only three lay members were appointed. Since then, as its role has expanded, many more lay members have joined the panel. Most are retired senior civil servants, diplomats, or ex-members of the armed forces and the intelligence and security services. The lay member is there to advise his judicial colleagues on how much weight should be given to the various kinds of secret information submitted in evidence: how to allow for the possibility that intercepted communications may have been deliberately planted, that informers may have embellished their reports in order to please their paymasters, or that raw intelligence may have been misunderstood and misinterpreted by the agent providing it or by the intelligence and security officers who receive and process it. This is an area of which few serving judges have much, if any, direct knowledge. (The recently retired Lord Hutton may be an exception, though his past experience of the intelligence world seems to have had a questionable effect on his findings.)
My experience suggests that the lay member’s views on legal questions, though diffidently expressed, can also sometimes be helpful. It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials. But this, sadly, is the least of SIAC’s problems.
SIAC’s first case was an appeal against a home office deportation order on Shafiq ur Rehman, a Muslim cleric, and his family. I was the third member of the three-person hearing. Much of the evidence submitted to the commission by the home office and the security service in support of the home secretary’s view that Rehman represented a threat to Britain’s national security was heard in open hearings in the presence of the appellant and his lawyers. The home office applied for some of the other evidence, which included intelligence reports, to be seen and heard only in closed sessions from which the appellant and his lawyers would be excluded, in accordance with the procedures laid down in the act establishing SIAC. The commission accepted that some of the evidence would have to be heard in completely closed session. However, we also ruled that the less sensitive parts of the secret evidence could safely be seen and heard in ‘restricted session’, from which the press and public would be excluded but which the appellant and his lawyers could attend on the understanding that they were not to reveal it outside the hearing room.
In the closed sessions, the interests of the appellant were represented by a ‘special advocate’. The special advocate is drawn from a panel of QCs specialising in immigration and human rights law and given security clearance at a level allowing them access to the classified evidence. Once the special advocate has seen or heard secret evidence denied to the appellant, he is barred from contact with the appellant or his lawyers, so that no sensitive information can be leaked to them, even unintentionally. It is obviously unsatisfactory that the appellant is prevented from knowing all the evidence against him, but the special advocate, who is present at all the hearings, is fully familiar with the appellant’s case and well able to deploy his skills on the appellant’s behalf in the closed sessions – as others who attended those sessions in the Rehman case can testify.
After exhaustive examination of the evidence, the commission came to the unanimous conclusion that none of it had been shown, even to a low level of civil proof on the balance of probabilities, to warrant the conclusion that the appellant was such a grave threat to national security that he ought to be deported. In reaching this decision, SIAC, unable to rely on precedent since this was its first case, had to decide on the level of proof it would apply to the evidence and on what we took ‘national security’ to mean in this particular case.
We publicly allowed the appeal on 7 September 1999. There is no appeal from SIAC on its findings of fact, but the home secretary took the case to the Court of Appeal, which duly overturned our decision on points of law, and was later confirmed by the House of Lords. One quotation from the decision of the Court of Appeal gives the flavour:
It is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive’s policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion.
Both higher courts found that action by a foreigner in the UK which could constitute a threat to the security of a foreign country, such as raising money for the ‘liberation struggle’ in Kashmir or Palestine, could also be construed as a threat to Britain’s own security since the foreign country concerned might retaliate against British interests – a massive extension of the common-sense meaning of ‘national security’.
The higher courts’ rulings brought into question the powers of remedy that should be available to SIAC. They declared that the home secretary ‘is undoubtedly in the best position to judge what national security requires . . . The assessment of what is needed in the light of changing circumstances is primarily for him.’ And: ‘The commission was intended to act judicially and not . . . to substitute its own opinion for that of the decision maker on "questions of pure expediency".’ The rulings, taken as a whole, appear to me (though I am not a lawyer) to establish as part of English law that the home secretary may deport an immigrant without having to show that any single one of his past activities contributes towards a case for deportation. He may act in this way merely on the grounds of his belief that future activities of the person concerned might threaten national security, however indirectly. SIAC now has only the most limited power to pass judgment on the reasonableness of that belief. It is difficult to see what functions are left for SIAC short of a decision by the home secretary so wildly irrational as manifestly to warrant judicial intervention. These rulings give him such wide discretion as to make his powers virtually unaccountable.
The Court of Appeal and the Law Lords ordered the Rehman case to be heard again by SIAC, applying the rulings on points of law issued by the higher courts. Had SIAC, this time differently constituted, heard the case all over again, it would probably have had to refuse the appeal. But we shall never know: after lengthy delay, the home office withdrew the deportation order. Apparently, the threat allegedly posed by the suspect had become one that the security authorities now judged they (and we) could live with after all.
Since then, there has been a further alarming development. The Anti-Terrorism, Crime and Security Act 2001 extended the remit of the – now toothless – commission to cover appeals by aliens who are indefinitely imprisoned without charge because they are suspected of involvement in terrorism, but can’t safely be deported without the risk of torture or other ill-treatment in their own countries. Here, too, it is the sole court of appeal. Indefinite imprisonment without trial is in breach of the European Convention on Human Rights (and the UK Human Rights Act), but the government has declared a state of national emergency which enables it to suspend the application to Britain of the relevant provisions of the convention. In this context, a ‘state of emergency’ is defined as ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community’. Plainly no such exceptional situation exists, and no other European country has found it necessary to take these extreme steps. The question of the legality of the government’s derogation from the convention, and the fictitious ‘emergency’ declared to legitimise it, may ultimately have to be decided by the European Court of Human Rights; a ruling could take years. Meanwhile, SIAC must continue to administer a law whose provisions for indefinite imprisonment without trial seem plainly unacceptable in a democracy, contrary to British traditions of civil liberties and justice, and in breach of our international obligations. The comparison with Guantanamo made by some commentators is not entirely fair: at least our detainees are theoretically free to walk out of Belmarsh Prison tomorrow if they can find a country willing to take them; and at least they have lawyers in Britain working on their behalf. Nevertheless, there is enough truth in the comparison to undermine British government protests at the Guantanamo monstrosity as it affects the Britons held there, and to make ministers’ efforts on their behalf look hypocritical.
It is perhaps a measure of the extent to which SIAC has been hobbled by the legal imperatives handed down by the higher courts that the commission has not so far allowed a single appeal by any of the dozen or more people who have been imprisoned under the Anti-Terrorism, Crime and Security Act. SIAC’s one finding (in 2002) against the legitimacy of the act – a finding overturned on appeal by the home secretary – was that it breached the Convention on Human Rights by discriminating against foreigners. Apparently, if all of us could also be locked up without trial, everything would be just fine.
I am under no illusion that the resignation of one insignificant member of a sizeable panel of lay members of SIAC, even if one of the original three, will precipitate a crisis of confidence in the institution or a radical rethink of its operation. It would be impertinent and self-contradictory to suggest that the rulings of the Court of Appeal and the Law Lords were or could be wrong in law. Those rulings are the law. But we should consider their implications for the human rights of those facing deportation or, failing deportation, prison. In a press statement on 25 February, David Blunkett claimed that the existence of SIAC as a court of appeal helped to justify the continuation of the government’s extraordinary powers. Given SIAC’s current emasculation, this claim looks distinctly disingenuous. It is questionable whether SIAC, now buckled into the legal straitjacket imposed on it by the two highest courts, can really act as an effective champion against error or abuse by the executive. If, as seems to be the case, the law no longer permits SIAC to function as intended, it is up to parliament to change it.
[*] See John Upton in the LRB, 22 January.