17th January 2005
Dear Attorney General,
I was away in Hong Kong when the House of Lords gave judgment in A(FC) and others on 16th December 2004.Although aware that judgment had been given I was unaware until my return of the reaction to the judgment, particularly at Government level.
Since my return I have been giving careful consideration to my position as a Special Advocate, a role which I have undertaken since my appointment in 1998.
When first appointed the Special Immigration Appeals Commission dealt exclusively with immigration cases involving questions of national security. Its creation following the decision of the European Court of Human Rights in Chahal v United Kingdom was a progressive measure and I was pleased to accept the appointment. There was at that stage no power of indefinite detention of foreign nationals based only on reasonable suspicion. My consideration of my position arises only in the context detention under the Anti-terrorism, Crime and Security Act 2001.
I was particularly disappointed by the statements made by the Home Secretary at the time of the decision in A(FC) and others that, in spite of the House of Lords' decision, those detained under provisions of the Anti-terrorism, Crime and Security Act 2001 were neither to have their certificates revoked nor be released. Moreover I understand that the Home Secretary also stated that Parliamentary approval would be sought for further renewal of the legislation in the New Year. This of course is required since the Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2004 (SI 2004 No 751) only extends sections 21 to 23 of the ACSA until 13th March 2005.
Since then there has been plenty of time for reflection, but there has been no indication that the Government proposes any different course. On the contrary, the Prime Minister?s remarks on the Today programme in the first week of January implied that the position remains precisely as explained by the Home Secretary in the immediate aftermath of the judgment.
Moreover, I know that various hearings remain scheduled to take place before SIAC commencing in late January/ early February, which will carry out the reviews of the section 21 certificates on which the detention is based; that special advocates continue to receive instructions in these cases; that one bail application remains part heard before SIAC; and that in the case of 'G' the Home Secretary is seeking to have bail rescinded.
In all these circumstances I am forced to conclude that any initial optimism on my part, that the Government might take a different course after time for reflection, was misplaced.
In light of the Government's continued maintenance of detention under ACSA powers and the Government's apparent determination to extend those powers I consider my continued participation in a system condemned by the House of Lords to be wholly untenable. I do not feel able in good conscience to continue to act as a Special Advocate in proceedings which would purport to test the 'lawfulness' ofcontinued detention in circumstances where the House of Lords has declared the very provisions on which such detention is based to be incompatible with the detainees' human rights under Articles 5 and 14 ECHR. My conscience is not assuaged in any way by the limited effect under the Human Rights Act 1988 of a declaration of incompatibility.
In these circumstances I feel that I have no alternative but to tender my resignation as Special Advocate with immediate effect. This course would not be necessary if the detainees were released and Parliamentary approval was no longer sought for the continued use of ACSA detention powers, nor if, instead of the use of ACSA detention powers, the detainees were charged and detained within the criminal system.
I must emphasise that in taking this action, I intend no criticism whatsoever of the judges of SIAC who have always acted fairly and conscientiously within the restraints imposed on them by the legislation, nor of my fellow Special Advocates for whom I continue to have the highest respect.