Counter-Terrorism and the Culture of Legality: The Case of Special Advocates

Abstract

The pre-emptive shift that marks the reaction to the September 11, 2001 attacks has had a profound effect on the operation of both security services and law enforcement agencies. States identify threats based on intelligence and subject them to restrictive measures that seek to protect the public not just from terrorism but also from the risk of terrorism. Administrative and judicial tribunals have developed rules of procedure for the use of evidence that the state is unwilling, or sometimes unable, to disclose to the subject of the proceedings. The key component of the UK solution to secret evidence is the use of special advocates: lawyers with high security clearance given access to secret evidence that cannot be disclosed to those for whom the advocates act. These special advocates act in closed material proceedings. In such proceedings the individual subject to state action and his legal representatives are excluded but the special advocate acts on the subject’s behalf. The first part of this paper charts the rise of special advocates and closed material proceedings in the UK legal system after the decision of the European Court of Human Rights in Chahal v United Kingdom. It examines the extension of use of closed material proceedings beyond the confines of immigration law into counter-terrorism including in preventive detention and proscription and into other areas of civil law. The second and third parts of the paper highlight the flaws of closed material proceedings. The second part considers the special advocate’s ability to ensure that rule of law principles are upheld in closed material proceedings. It notes several limitations on the special advocate’s role and concludes that the system as it currently works does not comply with the rule of law and is corrosive of the culture of legality. The third part takes a critical turn, examining the special advocate and closed material proceedings as part of a legal grey hole. As the UK tends to be a model for other counter-terrorism systems the final part of the paper examines the potential for these problems to manifest in a new legal setting: the European Union. When Advocate General Sharpston sought to develop ideas on the use of secret evidence before the European Court of Justice it was the UK system to which she turned. This paper advocates the elimination of legal grey holes in UK law and cautions against an erosion of the strong culture of legality in proceedings before the European Court of Justice.