Special Advocates in National Security Proceedings

“Special advocates” are security-cleared lawyers representing the interests of parties excluded from national security-related hearings in which the government leads secret information. They have been employed extensively in the United Kingdom and, to a lesser degree, in New Zealand in an effort to enhance the fairness of processes that, by denying the party the right to know the case against them, do not meet fair hearing standards. Canada has also used special security-cleared lawyers in proceedings before the Security and Intelligence Review Committee (SIRC), and the Arar Commission, among others, and is moving towards a fuller special advocate model in national security proceedings before the Federal Court (particularly in relation to security certificates under the Immigration and Refugee Protection Act). A study released August 31, 2007 by Craig Forcese and Lorne Waldman examines the role and utility of special advocates in Canada, the United Kingdom and New Zealand. Entitled Seeking Justice in an Unfair Process, the report draws on public source material, but mostly reflects insight obtained via telephone interviews and two London roundtables conducted during the summer of 2007 with over a dozen special advocates, the UK Special Advocates Support Office and several United Kingdom defence counsel and civil society organizations as well as other Canadian and foreign experts. The report concludes that the UK and New Zealand special advocate models suffer from a number of shortcomings, many of which do not exist in the model employed by the Canadian SIRC. The study was commissioned by the Canadian Centre for Intelligence and Security Studies, with the financial support of the Courts Administration Service. It is part of a larger project on the "Administration of Justice and National Security in Democracies."