MR NEIL GARNHAM QC

17 DECEMBER 2007

  Q23 Chairman: We are now joined for our second session of the afternoon by Neil Garnham QC, who is Special Advocate. Our second session is about control orders and special advocates. Neil, presumably you are aware of our previous recommendations in our report in the summer of basically three themes: that there should be an obligation on the Secretary of State to provide a statement of the gist of the closed material; that the prohibition of any communication whatsoever between the special advocate and the "client" after closed material is seen to be relaxed; and the standard of proof in SIAC should be raised to balance of probabilities. From your experience do you see any particular practical problems arising from those specific recommendations?

  Mr Garnham: I can see there is going to be considerable objection to the first of them. Although I think it is an entirely sound proposal from this Committee, the Security Services and the Home Office are going to be spitting tacks, I fear—not that that is a reason for not going ahead with it, but I anticipate that as a practical problem. The second matter you raise is the communication between the special advocate and the appellant. As you concluded on the basis of the previous Special Advocate's evidence it seems to them, and I have to say I share the view, that it is a pretty essential step, provided some mechanism can be devised for achieving it, because what exists at the moment, as you know, is pretty hopeless. We can pose questions of the appellant after we have seen the closed material but only with the permission of the Commission or the judge having given notice of the questions we want to pose to the Secretary of State, which is entirely counter-intuitive to any lawyer, that you disclose your case to the other side before you even get permission to ask the question. Of all the matters you raise that is the one that seems to us most critical. A thought I have had in the past, which I do not pretend is necessarily shared by others, is that I do wonder whether there might not be a means by which this could be achieved, sensibly and with reasonable efficiency. I do not see why special advocates should not have the power, were there rules to make provision for it, for us to apply ex parte to a High Court judge for permission to ask the question. The High Court judge would then act as the guardian to ensure we are not asking questions which we ought not to ask, but we would not have to disclose significant parts of our case to the other side, the Security Service, which would often render the whole idea pointless. If that was to find favour, it might even be made better by permitting that application to be made to a High Court judge with experience of these matters but not the one who is hearing the case. Because the downside of this procedure is that we ask a question of the appellant to which we get an entirely unhelpful answer that shoots ourselves in the foot, and since we are not meant to be there as amici curiae, friends of the court, we are meant to be looking after the interests of the appellant, I do not see why we should be exposing him to us accidentally shooting him in the foot. So it seems to me that it is possible, although it would take some thought. As to the third of your proposals, namely the change of the standard of proof to balance of probabilities rather than mere suspicion, it has long been the view of all of us who do this work that that is entirely justified.

  Q24  Chairman: What sort of difference do you think it would it make in the cases you have dealt with if we had that third provision? In practical terms do you think it would make any difference to the cases you have been involved in?

  Mr Garnham: I should say straight away that although I have done quite a lot of special advocacy work it has been all in SIAC. I have not done a control order case, but I am not sure the difference is very material, to answer your question, Chairman. It is pretty difficult to answer, to be honest, the question as to whether I think that change of standard would make a difference. It might in one or two cases I can think of where I thought we had a decent shot at it, and if it was not for the fact we were met with such a low hurdle we might just have swung it, so yes.

  Q25  Chairman: And on your previous answer on the gist of the closed material, is there any way that that could be operated in a similar sort of way to the point you made about the ex parte application in the High Court, in terms of how that could be cleared, or something like that?

  Mr Garnham: Gisting is really quite a common technique that we have pushed hard because it has been the most fruitful way, often. The prospects of persuading the Commission or the court to put into open a closed document are vanishly small, but sometimes we will get somewhere if we can suggest a gist that gets the burden across without disclosing where it comes from, so it has become a very popular device. But we have only succeeded in making it so useful because we have been able to negotiate it with the Secretary of State's counsel, and it is in that process of negotiation that you arrive at something that is just about acceptable to the Security Service and takes us a bit further forward, so I do not see room for that.

  Q26  Chairman: For example, if they were to provide a gist they would have to justify that to this second judge?

  Mr Garnham: If we, the special advocates—

  Q27  Chairman: No. If you want it and they refuse to provide it, that refusal would have to be justified to a second judge?

  Mr Garnham: Well, that is, in fact, what happens now but it is not a different judge, it is the same one and he is in the best position to judge that because he has been reading into the papers. So I am not sure that would improve it.

  Q28  Earl of Onslow: On this closed material, are the Security Services overzealous in not allowing anybody to see anything? In other words, do they tend to think that something which is published weekly in the Daily Mail should not be allowed to be shown?

  Mr Garnham: I think that is their default position. My favourite example was where they were attempting to keep in closed the particular assertion we wanted in open, and we were able to point to the fact that it had been in the Buckingham Palace section of The Times not very long ago! The Court Circular had announced that whatever group of the Army it was had visited whatever country it was, and they did then give way and say that that could be made open. So they do tend, I think, to be very cautious but that is understandable because of the nature of the material they are dealing with, and the quantity is so vast. That is what is difficult to get across to those who do not do these cases; the material is enormous.

  Q29  Chairman: What we were told last time was that a lot of material which turned out to be closed was available on the internet if you knew where to look, but often not in translation.

  Mr Garnham: Yes. It is something we spend tedious hours doing, googling obscure names, but in fact we have to be careful about that because Security Service have made it clear they do not mind us making simple Google searches, a single name, but we cannot do any of the more complicated googling where you put in two names because the nature of the link, were it to be revealed, might disclose something they would be unhappy for us to reveal, so in those circumstances they require us to go to Thames House and do the googling on a protected computer.

  Q30  Chairman: Does that stop you getting access to anything? There is the inconvenience of it; there is the risk of you being surveilled yourselves while you are doing that, I suppose; but, more importantly, does that restrict access to the wider internet?

  Mr Garnham: It means if we want to make that sort of more complicated search we can only do it in their premises, and that is just inconvenient, and it is difficult to fix up times in the usual way.

  Q31  Lord Morris of Handsworth: Mr Garnham, I note your earlier comment that you have not done a control order case, but from your experience of acting as a special advocate would it be helpful or unhelpful for Parliament to clarify the statutory framework in light of the recent House of Lords judgment, in particular concerning the procedure fairness of control orders?

  Mr Garnham: I think it would be helpful. I suspect what will happen now is there will be a whole sheaf of cases that make their way up through the appellant courts testing the limits of what the House of Lords said in the recent case, and I suspect if that were overtaken by a Parliamentary amendment that set out clearly what it was it would help.

  Q32  Lord Morris of Handsworth: Have you got any special procedural advice that you want to offer on that?

  Mr Garnham: Not beyond what I have said so far and beyond perhaps turning the qualification, the reading, into the statutory framework that was suggested by Baroness Hale. I can see good sense in making that statutory instead of case law.

  Lord Morris of Handsworth: Thank you.

  Q33  Baroness Stern: Are you saying it would make control order proceedings fairer if there were an obligation on the Secretary of State to give a fuller explanation of why she considers there are grounds for making the order at the time the order is made?

  Mr Garnham: Yes, I do, but I can foresee the nature of the objection that there would be to that, because it is in giving that greater disclosure that the Security Service would fear damaging disclosure. This is not something I think easily solved by a piece of draftsmanship.

  Q34  Baroness Stern: Because?

  Mr Garnham: Because as soon as you start gisting the Secretary of State's case you start giving away that which is regarded by the Security Service as potentially damaging to national security, and that is the nub of the problem.

  Baroness Stern: Thank you.

  Q35  Earl of Onslow: Are there any other amendments to the statutory regime of control orders, would you say, that are necessary or desirable in the light of the House of Lords judgment?

  Mr Garnham: I cannot think of any, I have to say, beyond what I have talked about already. The difficulty from a practitioner's point of view with the House of Lords judgment is that the three principal speeches, or at least the three that followed the single consistent line, Lord Brown, Baroness Hale and Lord Carswell, urge on the court and on the special advocates that they really must try harder to make this fairer, and that is easier said than done. I doubt, and I have not detected in the cases I have been in, there is any want of enthusiasm or hard work either on the part of the Court or the special advocates to try and make this work; it is just intrinsically difficult.

  Q36  Chairman: So you have no bright ideas, going beyond MB, about what could be done to make them fairer?

  Mr Garnham: Beyond the one I have suggested, which is provision for an ex parte application, and that would not be a tinkering. If it were acceptable that would be a substantial change because it would mean for the first time we could find a way of putting questions to the person whose interest we are trying to represent without being overlooked by the Secretary of State.

  Q37  Chairman: But what about calling your own witnesses? Do people exist who are experts in the field that you could use as expert witnesses?

  Mr Garnham: No, they all work for the Security Service. All those who are going to be any good at it are employed by the Security Service. Occasionally one hears the name of a retired person with an independent mind, and we have raised this collectively as a possibility of obtaining the assistance of such a person, but it is not easy, and they are not ready available.

  Q38  Chairman: Well, if they were readily available, could you or should you be able to call them?

  Mr Garnham: Yes, we should, if Baroness Hale's reading of the rules is right, and yes, we can, but the latter point is not without its difficulties. I think it might be useful to have it made express that special advocates are empowered to call witnesses. It has been contemplated in various amendments to the rules and I confess I cannot recollect whether it is now in or not, but I think it would be a good addition.

  Lord Lester of Herne Hill: My only experience, like yours, has been with SIAC and in relation to proscribed terrorist organisations in one case, and I must just remind myself about the sub judice rule, because the case I was in was the People's Mojahedin Organisation of Iran and I am not sure whether it is on appeal or not.

  Chairman: I think you had better be careful on that.

  Q39  Lord Lester of Herne Hill: That is why I am being careful but, anyhow, I think I can ask my question without breaching parliamentary privilege. I am interested by your proposal for the ex parte application. My difficulty with the current procedure on the basis of my experience is that suppose the allegation is that the organisation blew up a lorry at such-and-such a place and undesirable things were said at such-and-such a meeting, but not enough particularity is given to enable the advocate for the suspected body or whatever it is to be able to answer the allegation; it is simply too vague. My experience was that it was impossible to get particularity because immediately it was claimed that all this was very secure and therefore nothing should be disclosed to counsel for the applicant. Under your procedure, if you and I were doing a case of that character, whether it was control order or otherwise, could I then go to you and say: Would you make an ex parte application to get greater particulars of so-and-so, so-and-so and so-and-so?

  Mr Garnham: Yes. That is how I foresee it operating.