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

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents