There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology
University of Copenhagen
Columbia Human Rights Law Review, Vol. 42, No. 2, 2011
In the last ten years, many countries other than the United States have experimented with new, controversial forms of government powers to control, deport, or detain suspected terrorists. With this decade-long perspective, one can now better assess how other democracies have tried to balance their twin commitments to national security and the rule of law, how they have worked together to do so, and how judges and policymakers can best use comparative law in these transnational counter-terrorism efforts. Accordingly, this article considers questions of practical comparative methodology by focusing on one remarkable example of comparative anti-terrorism law gone wrong – the development of “special advocates” in the United Kingdom and Canada. In the 1996 decision of Chahal v. United Kingdom, the European Court of Human Rights found that British immigration procedures violated the European Convention on Human Rights because they denied deportees both legal representation and access to security-sensitive evidence in ex parte, in camera administrative hearings, from which the individual concerned and his legal counsel were excluded. In considering more proportional measures for balancing the State’s national security interests with due process, the Court referred in dicta to a Canadian practice of using special advocates – lawyers who could examine secret evidence withheld from a deportee on security grounds. The Court’s description of this Canadian practice, however, was seriously flawed and was the product of a poor comparative law methodology. As a result of Chahal’s dicta, the United Kingdom adopted a system of special advocates that greatly limited due process rights. Ironically, Canada itself would eventually get rid of its own special advocates system and adopt the procedurally-defective British model, based on Chahal’s erroneous description of the earlier Canadian one.
Number of Pages in PDF File: 77
Keywords: Special advocates, secret evidence, anti-terrorism, due process, comparative law, Chahal
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945679