The role of the special advocate as an alternative to non-disclosure: examining and looking beyond the balancing act
In the post-cold war period, a number of countries, including the UK, Canada, and Australia, sought to detain and in some cases deport asylum seekers and refugees where they were believed to pose a security risk to the state. In this context, governments claimed that security related evidence should not be disclosed to the individual or their legal representative as this would harm state security interests. However, as this stance compromised entrenched procedural fairness rights, it inevitably became the subject of protests and extensive litigation. In response, the special advocate procedure was devised by the UK government (and later adopted in Canada) on the basis that it reconciled the competing interests of state security and individual procedural fairness. In light of this, it has been suggested that the regime could prove a useful addition to the laws of other states. This, together with the notion that the regime has been subjected to transplantation and yet continues to be contested (appearing in recent litigation and advisory body publications) presents an opportunity to consider its effectiveness and the broader implications of its adoption. Reflecting upon its use to date this paper discusses the implications of the regime including how effective it is in achieving the balance it is intended to deliver and therefore whether or not the regime (or a reformed version) should continue to be used and be adopted by additional states. In doing so, the paper considers whether it is in fact possible to assess the security side of the balancing act and analyses the regime in light of its impact upon the separation of powers in a state, including its effect upon the accountability of executive decision makers and long-term sustainment of public confidence in the court system. Beyond this, the regime’s potential to become normalised, that is, applied within other areas of law beyond the forced migration context is also explored.