A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
77
was the lex specialis as regards detention, that there was no right to
challenge binding primary legislation before a national court. This principle,
together with the system of declarations of incompatibility under the Human
Rights Act 1998, reflected the democratic value of the supremacy of the
elected Parliament.
197. On the applicants’ second point, the Government submitted that
there were valid public-interest grounds for withholding the closed material.
The right to disclosure of evidence, under Article 6 and also under Article 5
§ 4, was not absolute. The Court’s case-law from Chahal (cited above)
onwards had indicated some support for a special-advocate procedure in
particularly sensitive fields. Moreover, in each applicant’s case, the open
material gave sufficient notice of the allegations against him to enable him
to mount an effective defence.
3. The third party, Justice
198. Justice (see paragraph 6 above) informed the Court that at the time
SIAC was created by the Special Immigration Appeals Commission Act
1997, the use of closed material and special advocates in the procedure
before it was believed to be based on a similar procedure in Canada, applied
in cases before the Security Intelligence Review Committee (SIRC), which
considered whether a minister’s decision to remove a permanently resident
foreign national on national security grounds was well-founded. However,
although the SIRC procedure involved in-house counsel with access to the
classified material taking part in ex parte and in camera hearings to
represent the appellant’s interests, it differed substantially from the SIAC
model, particularly in that it allowed the special advocate to maintain
contact with the appellant and his lawyers throughout the process and even
after the special advocate was fully apprised of the secret information
against the appellant.
199. In contrast, the SIAC procedures involving closed material and
special advocates had attracted considerable criticism, including from the
Appellate Committee of the House of Lords, the House of Commons
Constitutional Affairs Committee, the Parliamentary Joint Committee on
Human Rights, the Canadian Senate Committee on the Anti-Terrorism Act,
and the Council of Europe Commissioner for Human Rights. Following the
judgment of the House of Lords in December 2004, declaring Part 4 of the
2001 Act incompatible with Articles 5 and 14 of the Convention, the House
of Commons Constitutional Affairs Committee commenced an inquiry into
the operation of SIAC and its use of special advocates. Among the evidence
received by the Committee was a submission from nine of the thirteen
serving special advocates. In the submission, the special advocates
highlighted the serious difficulties they faced in representing appellants in
closed proceedings due to the prohibition on communication concerning the
closed material. In particular, the special advocates pointed to the very
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