Ian Macdonald QC resigns from SIAC

Monday 1 November 2004

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After seven years as a Special advocate before the Special Immigration Appeal Court (SIAC), I intend to hand in my resignation on Monday morning.

I was one of the first batch of senior barristers to be appointed to the post by the then Attorney General in 1997 under laws, set up following the Chahal decision in the European Court of Human Rights in Strasbourg.

I have now been in post for some seven years and have been involved in the Appeals of over ten Appellants.

What is SIAC? Although it is called a Commission, in fact it is a Court, presided over by a High Court judge, who sits with an immigration judge on one side and someone with a background in security. Unlike a criminal court no-one wears wigs or gowns and, of course there is no jury. It is a secure court situated in a basement room just off Chancery Lane in London. The Appellant is represented by his or her own solicitor and counsel and can, and often is, present for the open sessions of the court. But the appellant and the appellant?s legal team and all members of the public must leave court, when it goes into closed session.

When I was first appointed, SIAC was an immigration court dealing exclusively with immigration cases involving questions of national security. Often the case would concern someone whose presence in the UK was undesirable for some reason involving national security and the government has decided to deport or exclude them. Previously there was no appeal in these cases, only a reference to three anonymous advisors. Appellants could not be represented; they had no idea of the extent of the accusations against them, and there was no-one with access to the sensitive and secret evidence, who could speak on their behalf. The creation of SIAC was, therefore, seen as a progressive measure, giving these appeals an element of fair procedure which had been missing previously.

After 9/11 however, Part 4 of the Anti-Terrorism, Crime and Security Act 2001 gave SIAC a new jurisdiction to hear appeals against the indefinite detention without trial of suspected international terrorists accused of having links to AQ. This applied only to foreigners who could not otherwise be deported or removed safely from this country.

In my view this was a wrong law brought in the wrong way to the wrong court. But like other Special Advocates, I thought I might be able to make a difference. So I stayed. This allowed me to see how everything worked from the inside. In fact, I represented the interests of five of the detainees on their appeals to SIAC. This meant that I received all the secret material prepared by the government in the case of each of them; I cross examined the intelligence officers and made a closing speech on behalf of the Appellant. All this was done in closed session.

In their landmark judgement the House of Lords have now ruled that a law, which imposes indefinite imprisonment without trial but is partial in its operation and only targets one of the groups who may be involved in terrorist planning, is unlawful. It is a disproportionate and discriminatory response to the threat to the nation.

This was not a judgement by a small majority, who have just edged it against the dissenters. It is an overwhelming condemnation by a majority of 8 to 1. And the language used in the speeches of the Judges was strong and forthright. There was little mincing of words. The government have got it wrong yet again.

Two things need to be said. First, the detainees have not been targeted simply as a group of foreigners suspected of involvement in international terrorism. The overwhelming focus has been on the fact that they are muslim. They are said to be part of an international jihad bent on destruction of the West. The implication is that what they are doing somehow represents the whole of Islam, which is patently untrue. But this is how the war against terrorism is often portrayed. It produces hatred and attacks not just on muslims, but on the whole Asian community. It has already eroded the confidence of British muslims and must, in the longer term, affect social cohesion. More importantly this kind of law alienates Britain in the international arena.

We await the government's response to the judgement, which brings me to the second point.The solution to the perceived threat of international terrorism is not, in my view, to pass new laws, which apply arbitrary arrest and indefinite detention without trial to every terrorist suspect, British and foreign alike.The point was trenchantly made by Lord Hoffman in his speech:

"I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to UK citizens as well. The real threat to the life of the nation, in the sense of people living in accordance with its traditional laws and political values comes not from terrorism but from laws like these."

Thursday's judgement in the House of Lords supports and vindicates my view. I now feel that whatever difference I might make as a special advocate on the inside is outweighed by the operation of a law, fundamentally flawed and contrary to our deepest notions of justice. My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial. For me this is untenable. No other country in Europe has felt it necessary to follow this course and derogate from Article 5 of the European Convention. Britain should not stand apart from the rest of Europe on this issue.

Such a law is an odious blot on our legal landscape and for reasons of conscience I feel that I must resign.

I would like to add that my action is not in any way intended as a criticism of the judges of SIAC, who have always acted fairly and conscientiously within the restraints imposed on them by this intolerable legislation, or of my fellow Special Advocates. They will have their own views of what is the right course of action.

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