Obligations to the State Accepted as a Condition of Performing Work

While government has imposed exceptions to confidentiality and legal privilege for protection of the state, it has also sought to adjust professional legal ethics in other areas.

A. Special Advocacy

Special advocacy is a topic connected with the handling of terrorist suspects or oth­ers, usually immigrants or asylum seekers, in respect of whom sensitive material is held. The relevant legislation is the Special Immigration Commission Appeals Act 1997 and the Procedure Rules 2003, as extended by the Anti-Terrorism, Crime and Security Act 2001 and the Nationality, Immigration and Asylum Act 2002. In order to handle such cases, lawyers have compromised their role in relation to clients in order to accommodate the needs of the state.⁹⁸ This is often alleged to be necessary in order to protect national security.

The Special Immigration Appeals Commission (SIAC), created in 1997, has rules which allow immigration hearings to be held in private, when sensitive security issues are involved. The SIAC rules provide for the appointment by the Attorney General of ‘special advocates’ to represent the interests of the appellant. There is a pool of about 20 such advocates, mainly barristers, who are security vetted. The role of the special advocate is one for which barristers volunteer. This procedure has been extended

⁹⁸ A Boon and S Nash, ‘Special Advocacy: Political Necessities and Legal Roles in Modern Judicial Systems’ (2006) 9 Legal Ethics 101.

to cases whereby foreign nationals are certified as being terrorism suspects, for the removal of citizenship, and detention pending deportation.

Hearings involve severe compromises to clients’ legal rights, at least as they are conventionally conceived. Some parts of the hearing may be held in the absence of the appellant and his chosen lawyer. In this way the case is dealt with without revealing the evidence to either the appellant or his lawyer. The process provides very limited rights of cross-examination, a procedure that violates normal rules of procedural justice.

The special advocates’ brief is to review sensitive evidence and make representations to the Tribunal on behalf of the appellant at the closed hearing. They are instructed to act in the interests of the appellant, but must not reveal any of this sensitive evidence to the appellant. So seriously is this instruction taken that the special advocate is even forbidden from communicating with the appellant after the information has been revealed, a precaution designed to prevent inadvertent leakage.

Special advocates therefore act for the appellant ‘but without instructions and sometimes, even, consent’.^[2245] The advocate is a lawyer who ‘cannot take full instruc­tions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordi­nary lawyer-client relationship’.^[2246] This represents the antithesis of the conventional relationship of lawyer and client and, of course, is contrary to numerous professional conduct rules for both branches of the profession.

Special advocates are appointed by the state, ‘the client’ has a very limited choice restricted to members of the panel and the advocate works to detailed rules laid down by the state. The fundamental objection, however, is that the role cannot be reconciled with acting independently in the best interests of the ‘client’, except in the very limited sense that it may be better to have a shackled lawyer than no lawyer at all.

The role of the special advocate has obviously been found useful. It has been extended in a rather ad hoc fashion to other courts and tribunals dealing with national security issues. These include the Proscribed Organisations Appeal Commission and the Pathogens Access Appeal Commission. A further extension is to the ordinary courts, using their powers to regulate their own procedures. Such extensions have been controversial, giving rise to dissenting judicial opinions.^[2247] The pragmatic justification of special advocacy is that it helps the state to observe due process requirements by providing a degree of legal protection to alleged enemies of the state.

Special advocacy compromises the traditional legal role in relation to clients. If use of the system continues to expand, it will surely begin to undermine the ethics of the profession in a far wider category of cases. The alternative is to recognise that special advocates are in reality agents or employees of the state and not lawyers in the conventional sense. Although the role of special advocate drives a coach and horses through the Bar’s Code of Conduct, the Bar Council nominates suitable candidates and makes no special provision for special advocacy in its rules.

V.