Legal Definitions - special advocate

A special advocate is an independent lawyer appointed by a court or tribunal to represent the interests of an individual in legal proceedings, particularly when sensitive or classified information cannot be fully disclosed to that individual or their primary legal counsel. This situation often arises in cases involving national security, immigration, or other matters where public interest concerns prevent full transparency.

The special advocate's unique role is to review the restricted information, challenge its use or interpretation, and make submissions on behalf of the individual, all without revealing the classified details to the individual or their regular legal team. This mechanism aims to ensure a measure of fairness and due process in circumstances where the usual principles of open justice and full disclosure cannot be entirely met.

Here are some examples illustrating the role of a special advocate:

• Example 1: National Security Deportation Case

  An individual who is not a citizen faces deportation from a country because intelligence agencies claim they pose a national security risk. The specific evidence supporting this claim is classified and cannot be shared with the individual or their immigration lawyer. In this scenario, a special advocate would be appointed. This advocate would gain access to the classified intelligence, scrutinize its validity, challenge its interpretation, and argue against the deportation order in court, all while being unable to disclose the sensitive details of the intelligence to the individual they represent. This ensures the individual's interests are defended even when the full basis of the accusation remains secret from them.

• Example 2: Employment Vetting for Sensitive Roles

  A highly qualified professional applies for a senior position within a government agency that requires top-secret security clearance. Their application is denied based on undisclosed information held by security services. To challenge this denial, a tribunal is convened. A special advocate would be appointed to represent the professional's interests. The special advocate would review the classified reasons for the denial, question their relevance and accuracy, and present arguments to the tribunal on behalf of the professional, without revealing the specific classified details to the professional themselves. This process provides a mechanism for challenging decisions made on secret grounds.

• Example 3: Review of Terrorism Prevention Measures

  A government imposes strict control orders, such as curfews, travel restrictions, and communication bans, on an individual suspected of involvement in terrorism, based on classified intelligence. The individual wishes to challenge these measures in court. A special advocate would be appointed to act on their behalf. This advocate would examine the secret intelligence that forms the basis of the control orders, test its reliability, and argue against the necessity or proportionality of the measures in court, without being able to share the classified details with the individual. This ensures that even in cases involving highly sensitive information, there is an independent legal voice advocating for the individual's rights.