This paper explains the
proposed functions of a special advocate
and how it is proposed that a special advocate
should be selected in any particular case.
|
Background |
| 2. |
Paragraph 45 of Paper No. 53 explains
how it is envisaged that special procedures
could be applied in respect of an appeal
against a proscription. That paragraph
reads as follows.
"45. In particular -
| (1) |
the Court would decide whether
the Secretary for Security may refuse
to disclose to the appellant or its
legal representative any particular
information, reasons or evidence and,
before so deciding, a special advocate
could make representations on behalf
of the appellant;
|
| (2) |
if and to the extent that it
would be possible to do so without
disclosing information contrary to
the interests of the security of the
PRC, the Secretary for Security would
be required to provide a statement
of the undisclosed material in a form
which could be shown to the appellant;
|
| (3) |
the Court could only hear the
proceedings or any party of them in
the absence of the appellant and his
legal representative if that was necessary
in order to ensure that information
was not disclosed contrary to the interests
of the security of the PRC;
|
| (4) |
a special advocate could
represent the interests of the
appellant by -
| (a) |
making submissions to the
Court in any proceedings from
which the appellant and his legal
representative were excluded;
|
| (b) |
cross-examining witnesses
at any such proceedings; and
|
| (c) |
making written submissions
to the Court." |
|
|
| Functions of the special advocate |
| 3. |
It is proposed that the functions of
a special advocate would be modelled on
English legislation on this subject. This
provides that a special advocate -
| (1) |
is to represent the interests
of an appellant in any relevant proceedings
from which the appellant and any
legal representative of his are excluded;
|
| (2) |
shall not be responsible
to the person whose interests he
is appointed to represent.
|
|
| 4. |
The effect of these provisions is that
a special advocate is under a statutory duty
to represent the interests of an appellant,
but there is not the usual client/lawyer
relationship between the appellant and the
special advocate. |
| 5. |
Details of the functions of a special
advocate are found in (for example) the
Special Immigration Appeals Commission
(Procedure) Rules 1998 (annexed). The following
Rules are relevant : rules 7, 10(3), 11,
16, 22(2).
|
| Selection of the special advocate |
| 6. |
In England, a special advocate is appointed
by the Attorney General. However, it is
not proposed that a government official
should appoint a special advocate under
the proposed legislation.
|
| 7. |
The details of the selection process
will be contained in subsidiary legislation
that
will be subject to vetting by the Legislative
Council. In preparing that subsidiary legislation,
the following principles will need to be
taken into account -
| (1) |
the need to comply with Articles
39 and 35 of the Basic Law;
|
| (2) |
the need to ensure that the
appellant's interests are represented
by an experienced and independent lawyer
from the private sector; and
|
| (3) |
the need to ensure that information
is not disclosed contrary to the interests
of national security. |
|
| 8. |
The current thinking of the Administration
is that these three principles could be satisfied
by regulations that allowed the appellant
to select a special advocate from a panel
of experienced and independent lawyers that
had been approved by the Secretary for Justice. |
