Monday, November 26, 2007

Special advocates system in UK does not protect liberties.

This comes from the Lawyer's Weekly. Harper seems not to be much interested in human rights when they are those of suspected terrorists, the one exception being the Arar case when he and Day both stood up to the barbarian administration on our southern border. I doubt though that Harper will reform his bill so that a government case could be exposed as has been done by the SIRC as the article notes.
There will be no more Arar inquiries either as the secrecy bound Iacobucci Inquiry shows.

British-style ‘special advocate’ scheme fails to protect liberties, experts urge

By Cristin Schmitz
November 23 2007

The federal government’s proposed new “special advocate” regime falls far short of what legal experts and law societies say is required to protect the rights of non-citizens who are subject to security certificates.

Ian Macdonald, a prominent British QC who resigned as a special advocate in 2004, calling his country’s law “an odious blot on our legal landscape,” said he hopes Canada rethinks its reforms to the Immigration and Refugee Act to the extent that they mirror flaws in the much-criticized special advocate system pioneered by the U.K. in 1998.

“The reason I quit as a special advocate was because I didn’t think that it was conscionable for me to lend, as it were, legitimacy to a system of internment without trial based on reasonable suspicion,” Macdonald told The Lawyers Weekly in a telephone interview from Garden Court North Chambers in Manchester, England.

During seven years as one the U.K.’s first 15 special advocates, Macdonald represented more than 10 foreigners, including a handful who were detained after 9/11, based on secret evidence, on suspicion of links to al-Qaida.

“Obviously when I took appointment in 1998 I felt that the role of the special advocate in certain types of cases was a much fairer procedure than what had previously existed,” said Macdonald, author of the U.K.’s leading immigration law textbook.

“My real objection was that after 9/11 the government decided to have internment of suspected terrorists,... and tacked this on to the jurisdiction of the special immigration appeals commission. As a special advocate[,] I felt that I was in an impossible situation because I knew things when I got the [secret] closed material which I was not in any way able to take instructions on from the man who was being interned. What was impossible about it was there was no way of knowing, and no way of finding out, what the person being interned had to say about this particular allegation against him, and there was no way that he would know what the allegation against him was because it was only in the closed material. And so there was a fundamental unfairness in the procedure, and that’s what the majority of the House of Lords have held in their latest decision, Secretary of State v. MB, [2007] UKHL 46.”

Macdonald warned “it would be a mistake” to adopt the British system “lock, stock and barrel” in light of the law lords’ decision in late October condemning the inability of judges in national security proceedings to order the disclosure of secret information which is necessary to preserve a fair trial.

“As our House of Lords has now recognized[,] there has to be in-built into any legislation of this kind, involving special advocates, a much greater system of fairness in the very fundamental sense of letting the person accused know the substance of the accusation to the extent that that person can” defend him or herself, Macdonald said.

Notwithstanding widespread criticism of the special advocate immigration scheme within Britain, Bill C-3 closely tracks the U.K. model. It diverges substantially from what was recommended to Parliament by the Federation of Law Societies.

Two years ago, the national umbrella group for the country’s 14 legal regulators urged that those who are subject to proceedings where secret evidence is presented should have the right to be represented by a lawyer of their own choice. Their lawyer should be granted access not only to all the material and information submitted to the court, but also to the underlying government files, subject to the government’s right to have the counsel first undergo a security check, the law societies argued.

Failing that, the Federation recommended that such persons be entitled to choose from special security-cleared advocates. The law societies stressed that the special advocate should be given access to the government’s underlying file, as well as scope to discuss the case with the individual’s own counsel throughout the entire proceeding (while at all times ensuring that the secret information is not disclosed to anyone, including to the individual and his or her own counsel).

The federation also emphasized that the government should properly resource special advocates so they can effectively perform their difficult role by retaining experts in national security investigations, translators, or other experts to help review the secret evidence.

The federation’s concerns were echoed by University of Ottawa law professor Craig Forcese and Toronto immigration law specialist Lorne Waldman, who co-authored an in-depth study last August on the use of special advocates in national security proceedings in the U.K. and New Zealand.

“In the early days in the U.K. it was the lonely special advocate, a single barrister usually assisted by a junior, against MI5” (the British intelligence service), Forcese told The Lawyers Weekly. “There was no equality of arms. No balance in terms of resources. So the special advocate was left to fight this phalanx of government lawyers.” In the meantime, however, the U.K. has established a special advocate support office which provides institutional knowledge, a database, and training for special advocates, he said. “We really need that.”

Echoing Macdonald’s concern, Forcese said Bill C-3 should be changed to ensure that the special advocate can maintain contact with the person named in the security certificate, even after the special advocate sees the government’s secret case. Bill C-3 stipulates that after a special advocate sees the secret material, she or he must seek judicial approval before discussing the case with the person named in the security certificate.

Forcese said the same rule in the U.K. has meant in practice that special advocates do not continue to communicate with the named person, since they have only been allowed to do so in writing, after the government vets all the questions.

Forcese and Waldman suggest that concerns about the risk of involuntary disclosure of sensitive information by the special advocate can be allayed by requiring the presence of a third, independent person, such as a member of the Security Intelligence Review Committee (SIRC) or its legal counsel, who are well-versed in such matters.

SIRC is the independent agency which reviews CSIS, including complaints that the intelligence service has improperly denied security clearances. Unlike what is proposed for special advocates in security certificate cases, SIRC counsel have full access to CSIS files (excepting Cabinet confidences) and may communicate with a complainant after they have seen the secret security information.

Forcese said the importance of continuing communication between the special advocate and the named person throughout the proceeding has already been demonstrated in other contexts involving secret CSIS information, when the government’s case has collapsed after SIRC counsel reviewed the CSIS file and then was able to glean key information by speaking with the person in question.
Forcese and Waldman argue C-3’s “minimalist” U.K.-style approach to constitutional rights should be jettisoned in favour of the robust SIRC system which has worked successfully in Canada for more than two decades.

They note that special advocates in the U.K. have complained that their government has withheld relevant, and sometimes exculpatory, information in its possession.

Forcese and Waldman therefore argue for an amendment to Bill C-3 that would impose an express obligation on the government to disclose all relevant information to the court and to the special advocate, while giving the special advocate the right to ask SIRC to thoroughly review the government’s secret files, and then certify that full disclosure has been made.

The pair also urge that Bill C-3 clarify the relationship between the person named in the security certificate and the special advocate.

The proposed law states clearly that there is no solicitor-client relationship; however, Forcese and Waldman recommend the addition of express language affirming that a special advocate nevertheless owes a duty of confidentiality to the named person and therefore cannot be compelled to reveal information disclosed by that person.

Bill C-3 should also be amended to ensure that special advocates are sufficiently independent of government, including an express stipulation that government lawyers are not to be special advocates, they say.

In Britain, independence has not been a live issue in the sense that special advocates have all been senior and experienced barristers who are widely seen to be independent of the government.
Macdonald told The Lawyers Weekly Waldman and Forcese’s recommendations would avoid many of the pitfalls in the U.K. regime. “I think that’s a preferable way to go than the way that seems to have been chosen by the Canadian government,” he remarked.

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