Monday, 12 November 2012

What's this SIAC all about?

The Abu Qatada case got me wondering about who sat on the Special Immigration Appeals Commission.  The statute sets this much out

The Commission shall be deemed to be duly constituted if it consists of three members of whom—

(a) at least one holds or has held high judicial office (within the meaning of [Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council], and

[(b) at least one is or has been [a judge of the First-tier Tribunal, or of the Upper Tribunal, who is assigned to a chamber with responsibility for immigration and asylum matters]].

Mitting J was (a) and Judge Peter Lane was (b) in Abu Qatada.  Dame Denise Holt DCMG was the third member of the Commission in Abu Qatada.  Who's she? Well she is a former Ambassador to Spain and Mexico.  She now holds lots of Non-Execs positions and other sinecures.  The MOJ website says that The third member will usually be someone who has experience of national security matters  so that must be Dame Denise.  She doesn't sound that independent given her career?  Still one presumes she has taken the judicial oath like her co-commission members?  Who else sits on the Commission in a similar capacity -  apparently there are 12 other lay members?  It is a bit hard to tell.  Looking at past judgments,Sir Brian Donnelly, KBE, CMG our former man in Zimbabwe appears to be one.  Sir Paul Lever, our former man in Berlin also appear to be a lay member.  I think we have got the flavour of the independent lay members of the Commission.  A knighthood and Ambassadorial rank appear to be prerequisites.  Our former man in all sort of places Sir Brian Barder had this to say on the subject, shortly after resigning as such a lay member:

The chairman of each SIAC hearing is a high court judge. The second member is drawn from a panel of judges with experience in hearing appeals on ordinary immigration matters. The third member, a layperson, is someone with experience of analysing and assessing secret intelligence and with high security clearance. When SIAC was first established, only three lay members were appointed. Since then, as its role has expanded, many more lay members have joined the panel. Most are retired senior civil servants, diplomats, or ex-members of the armed forces and the intelligence and security services. The lay member is there to advise his judicial colleagues on how much weight should be given to the various kinds of secret information submitted in evidence: how to allow for the possibility that intercepted communications may have been deliberately planted, that informers may have embellished their reports in order to please their paymasters, or that raw intelligence may have been misunderstood and misinterpreted by the agent providing it or by the intelligence and security officers who receive and process it. This is an area of which few serving judges have much, if any, direct knowledge. (The recently retired Lord Hutton may be an exception, though his past experience of the intelligence world seems to have had a questionable effect on his findings.)
My experience suggests that the lay member’s views on legal questions, though diffidently expressed, can also sometimes be helpful. It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials. But this, sadly, is the least of SIAC’s problems.

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