The point I was making to my noble friend is that we are dealing with a rare and exceptional circumstance where an excluded person has indicated that they do not wish to appoint or provide instructions to a special advocate. Before acceding to my noble friend’s point, one would have to consider the almost impossible position that would put a special advocate in. It would be very difficult, if not impossible. That is why this is phrased as it is. It is very unlikely that that would happen. I am not aware that it has happened, but no doubt others who have practised will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded person will want a special advocate appointed to do the very kind of job that my noble friend rightly articulates.
My noble friend Lady Williams referred to the particular provisions in Clause 8 and to Amendment 66, which would remove the fact that a special advocate is not responsible to the party whose interests they are representing. The noble Lord, Lord Pannick, expressed very clearly why that provision is there in the form in which it is. The Bill makes clear that while the excluded party is not the client of the special advocate, the special advocate is specifically appointed to represent the interests of the excluded person. We believe that it is not possible to go further and to permit the special advocate and the excluded party to have a lawyer-client relationship. I fully understand my noble friend’s point but I think that the subsection is a product of the way in which the role of special advocate has developed. The concept of a party’s legal representatives being
privy to information which is not disclosed to the client raises serious ethical and professional problems. That is why the provision is there. I think I am right in saying that it is reflected in some of the other statutory provisions where there are closed material proceedings.
Amendment 67 introduces a responsibility on the special advocate to provide a summary of closed material to the excluded party. There are two important aspects to that. First, the question of whether a summary should be provided is and should continue to be in the hands of the judge. It is the judge who will determine whether a summary of the evidence should be made available to the other party, whether this can be done without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the special advocate, as I have indicated, is not in a position to determine harm to national security by deciding what information can be passed on to the excluded party. Rather, it is for the security and intelligence agencies to undertake this assessment. Special advocates have accepted that communication to the individual regarding the substance of closed material presents difficulties and may well not be possible without the involvement of the court and, in particular, the Government, to avoid the risk that inadvertently damaging disclosures are made. Mr Nick Blake, who is now a High Court Judge, gave evidence to the Joint Committee on Human Rights in 2007 while still a special advocate. In that evidence session he acknowledged that changing the rules to allow communication after service of closed material would put enormous responsibilities on special advocates not to disclose information inadvertently. We know that special advocates take that responsibility very seriously indeed. That is why we do not believe that it would be appropriate for the special advocates to determine the summary of the evidence to be made available.
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Amendment 67 aims to confer a right on the special advocate to withdraw from proceedings. That point was made by my noble friend Lord Hodgson in moving the amendment and also by my noble friend Lady Berridge. We believe that it is not necessary to make provision for a special advocate to withdraw. The special advocate may already do so. In these circumstances, the appropriate law officer would appoint another special advocate of the excluded party’s choice.
Amendment 67 also proposes that special advocates write to the ISC after closed proceedings. The ISC is a parliamentary body with a specific role regarding the work of the agencies and the wider intelligence community. It would not be appropriate for it to take on a role of judicial scrutiny over the workings of a court proceeding. On the point of introducing a duty on a special advocate to maintain confidentiality as regards the proceedings, special advocates are security cleared and already bound by this duty. The rules of procedure for closed material proceedings make it clear exactly with whom the special advocate may or may not communicate regarding any matter connected with the proceedings. The exception of requiring a special advocate to refer something to the Crown Prosecution Service would put him or her in an extremely difficult position.
However, I recognise the point made by my noble friend and believe that in these circumstances it would be more appropriate for the special advocate to raise such a concern with the judge; in which case they would be fully able to do so.
It is important that we have discussed these different issues. I hope I have shown that the provisions in the Bill and the rules of court which will be made under these provisions will enable special advocates, in dealing with closed material proceedings, fully to deploy the skills in which they have already been shown to be more than competent. I ask my noble friend to withdraw his amendment.