Chapter 4 Notes on key legislation

Due process

Fifth Amendment provides that no person shall be deprived of life, liberty or property without due process of law.

Section 6(1) provides that it is unlawful for a public authority to act incompatibly with a Convention right.

Article 6 outlines the ‘right to a fair trial’ but in reality extends to require due process in administrative decision-making.
Article 5 (the right to liberty) gives special procedural protection for people detained by the Government.
The Convention has been held to impose a positive obligation on governments to have processes enabling them to establish facts and protect people’s lives (Article 2), liberty (Article 5) and freedom from inhumane treatment (Article 3).

These rules provide an example of an elaborate scheme regulating all the aspects of process for a particular class of public decisions.

Legislation relating to special advocate procedures:

Schedule 4 provides for non-disclosure of relevant information, and for the appointment of special advocates, in TPIM proceedings and appeals.

[SI 2003/1034]

This Commission is responsible (inter alia) for decisions to remove foreigners from Britain on national security grounds when some of the evidence is top secret.
Rules 34 - 36 provide that special advocates can be used before the Special Immigration Appeals Commission,
The special advocate procedure is outlined in Special Immigration Appeals Commission Act 1997 Section 6.

[SI 2001/443]

This Commission was set up to hear appeals against designation as a terrorist organisation.
Rule 10 provides that special advocates can be used before the Proscribed Organisations Appeal Commission.

Section 8 provides that special advocates can be appointed on national security grounds to ‘represent the interests’ of a claimant in proceedings under the Race Relations Act 1976.

Planning and Compulsory Purchase Act 2004 Section 80, amending the Town and Country Planning Act 1990 s 321

If the Secretary of State decides a local planning inquiry is to be held in secret on national security grounds (Town and Country Planning Act 1990 Section 321) the Attorney General may appoint a special advocate to represent the interests of any person prevented from being there.

New Part 76 to the Civil Procedure Rules (Proceedings under Prevention of Terrorism Act 2005) [introduced by SI 2005/656]

Rules 76.23 - 76.25 cover the appointment of special advocates in proceedings for the making of control orders under the Prevention of Terrorism Act 2005.