The role of special advocates
| Author | John Jackson |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| DOI | http://doi.org/10.1177/1365712716659806 |
| Subject Matter | Articles |
Article
The role of special advocates:
Advocacy, due process and
the adversarial tradition
John Jackson
University of Nottingham, UK
Abstract
The rise in secret courts or ‘closed material proceedings’ (CMPs) in recent years has called into
question our commitment to long-cherished principles of open justice and due process. This
debate has somewhat overshadowed the role of special advocates, who are appointed to
represent the interests of parties excluded from such hearings. These advocates pose a
challenge to the traditions of advocacy in the adversarial system but an international consensus
across the common law world appears to be emerging that they may be justified on human
rights grounds of fairness in that they bring a measure of procedural fairness to closed material
proceedings. This paper examines this claim and considers the extent to which the rise of
special advocates poses a threat to the adversarial tradition.
Keywords
adversarialism, advocacy, procedural tradition, special advocates
Introduction
The last decade and a half has seen an unprecedented rise in the use of ‘special advocates’ in secret
hearings or ‘closed material proceedings’ (CMPs) where non-governmental parties are excluded in order
to protect intelligence sources in the interests of national security.
1
Special advocates are given access to
sensitive national security material and make representations to the court on behalf of excluded parties.
What began as being justified by the UK government as an exceptional measure in the context of appeals
from deportation decisions that would be used in a small number of cases extended in the post-9/11 era to
a range of other contexts. The original body established to conduct a CMP, the Special Immigration
Appeals Commission (SIAC),
2
can now conduct CMPs in immigration, deportation and deprivation of
Corresponding author:
John Jackson, University of Nottingham, University Park, Nottingham NG7 2RD, UK.
E-mail: j.jackson@nottingham.ac.uk
1. For a comparative overview of closed material proceedings, see Gray (2014) and Jenkins (2015: 266).
2. See Special Immigration Appeals Commission Act 1997.
The International Journalof
Evidence & Proof
2016, Vol. 20(4) 343–362
ªThe Author(s) 2016
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DOI: 10.1177/1365712716659806
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citizenship appeals when the Secretary of State has certified that the decision has been taken in reliance
on information which should not be made public in the interests of national security, of the relationship
between the UK and another country or otherwise in the public interest. Its jurisdiction has also been
extended to include reviews of certain exclusion, naturalisation and citizenship decisions taken by the
Secretary of State in reliance on information which should not be made public on similar grounds.
3
After
9/11 CMPs have been used in cases involving a range of counter-terrorism measures including the
proscription of terrorist organisations,
4
control orders,
5
terrorism prevention and investigation measures
(so-called ‘TPIMs’)
6
and asset-freezing orders.
7
In 2010 the Joint Committee on Human Rights reported
that there were a total of 21 different contexts in which special advocates may be used in the UK, not all
of them on a statutory basis.
8
Then in 2013 the Justice and Security Act extended the use of CMPs
involving special advocates generally to all types of civil li tigation in the UK when disclosu re of
sensitive material might be ‘damaging to the interests of national security’ and it is ‘in the interests
of the fair and effective administration of justice’ for proceedings to proceed on this basis.
9
Table 1 shows the types of different cases involving special advocates that were opened in 2014 by
the Special Advocate Support Office (SASO) which was established in 2006 to provide legal and
administrative support to special advocates in the exercise of their functions. Although the total volume
of cases is not large (an overall total of 22 cases), it can be seen how varied the types of cases involving
special advocates can be and how the types of courts involved range from specialist tribunals such as
SIAC, the Security Vetting Appeal Panel (SVAP), Employment Tribunals and Parole Commissioner
hearings to the ordinary courts such as the High Court and the Administrative Court. This is not just a
purely UK phenomenon. Special advocates have been exported to other common law jurisdictions as
well, including Canada, New Zealand and Hong Kong.
10
This is in keeping with what has been noted to
be the UK’s tendency to export its national security and counter-terrorism law to other countries (Roach,
2006: 374). In the light of the Justice and Security Act there is particular interest around the world in
their recent extension into civil proceedings and it has been suggested that if the legislation can be shown
to work effectively, it seems inevitable that it will be copied (Tomkins, 2014).
Table 1. Special advocate cases opened in 2014.
Naturalisation (SIAC): 10
Deportation (SIAC): 1
Travel documents (Admin Court): 1
Asset freezing (Admin Court): 1
Private law damages (High Court): (2 NI) 4
TPIM (High Court) 2
Security vetting (SVAP): 1
Employment (ET): 1
Parole commissioners NI: 1
Source: SASO.
3. Justice and Security Act 2013, s. 15.
4. See Terrorism Act 2000, sch. 3.
5. See Prevention of Terrorism Act 2005, sch. 1, now repealed.
6. See Terrorism Prevention and Investigation Measures Act 2011.
7. See Counter-Terrorism Act 2008, s. 68, Terrorist Asset-Freezing, etc. Act 2010.
8. Joint Committee on Human Rights (2010: 50–52). The information was based on a letter to the Chair from the Rt Hon David
Hanson, Minister of State, Home Officer dated 7 January 2010.
9. Justice and Security Act 2013, s. 6.
10. In relation to Canada and New Zealand, see Forcese and Roach (2015: 67–70), Ip (2008, 2009: 207) and Roach (2012: 187).
344 The International Journal of Evidence & Proof 20(4)
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