The use of secret evidence in the special immigration appeals commission (Siac) has long been controversial. Simply put, the legal teams defending Siac appellants – who are appealing a decision to deport them on the grounds of national security – have had to give countless submissions while only knowing part of the evidence held against their clients.
A hearing in the supreme court recently concerned the use of what is called "reverse secret evidence" for seven Algerian appellants – Y, W, Z, G, BB, U and PP – whom Theresa May wants to deport on grounds of national security. These men have challenged their deportation orders in Siac proceedings. For Y, Z, G and BB, the home secretary's team relied upon closed evidence to establish the risk they allegedly pose to national security.
Although called a commission, Siac is in fact a court, presided over by a high court judge without a jury. When the court goes into closed session only the Siac panel, the Home Office team and a special advocate can attend. The special advocate attempts to represent the interests of the appellant, but is not permitted to speak to them at all – or even to their legal team on matters related to the case, once the secret evidence has been served.
Ian MacDonald QC, who resigned as a special advocate in 2004, described the Siac process as "like conducting a case with two hands tied behind your back". Y, one of the Algerian appellants, says he is "fighting ghosts", with no idea of the evidence against him.
Historically, the home secretary's legal team have valiantly argued the case for the use of secret evidence. In a move reminiscent of the star chamber, the government is proposing, through its justice and security green paper, to extend the use of closed material in all civil proceedings. The Guardian has submitted strong criticism of the proposal, which has alarmed many within the justice system. But with Labour unlikely to offer any opposition – given the stance towards civil liberties it adopted after 9/11 – the proposals are likely to come to pass.
In light of this, it might seem ironic that the Home Office argued in the supreme court last week against proposals for more secrecy in Siac hearings. Appellant Z has obtained information relevant to his safety in Algeria if he is deported, which he wants to present in Siac. However, the source refuses to allow it to be used without a guarantee that it will not be disclosed to the Algerian authorities. Siac refused to give an order preventing the home secretary from disclosing the information, which is why the supreme court was hearing Z's appeal.
The proposal is for a two-stage process, with an initial hearing restricted to the appellants' legal team and the Siac panel. Here an outline of the closed material would be presented and the judge would decide whether to authorise an irrevocable order to protect the confidentiality of the evidence and the source. This would initiate the second hearing, where the home secretary's legal team would be allowed to hear all the sensitive material but would be bound to secrecy by the order.
It is to this that the Home Office is opposed, citing national security as a reason. But if national security were truly at stake, it is unlikely that Siac would issue the order allowing a second hearing to go ahead. The appellants' legal team provided scenarios where a source would warrant protection, such as a prison doctor carrying out checks on detainees and finding evidence of torture. Algeria's human rights record is of concern. It is not a country where a source necessarily wants to be identified.
In stark contrast to its usual calls for secret evidence, the Home Office team, led by Robin Tam QC, called these proposals "novel" and "reaching too far". Rather than producing any substantial counter-argument, his submission reinforced the notion that the use of closed material is largely a weapon wielded by the state rather than an instrument for seeking outcomes in complex cases where discretion, anonymity and national security are at risk.
In truth, the Home Office's stance is a camouflage to protect diplomatic and trade relations and safeguard the security services lest they make the kind of error they did in the Binyam Mohamed case, which inspired large parts of the justice and security green paper. Anything else – such as protecting a source in fear of reprisals, imprisonment and torture – is simply not a viable use of closed hearings, according to the Home Office.
As Michael Fordham QC told the supreme court, nothing ought to trump the right to protection against torture in article 3 of the European convention on human rights – even preserving diplomatic relations.