Special Advocates in Closed Proceedings

Introduction

Closed material proceedings (CMPs) are used when the court must consider sensitive material that cannot be shared with one party for security reasons. To reduce the unfairness that would otherwise result, the court can appoint a special advocate (SA). An SA is a security‑cleared barrister who represents the interests of the excluded party during the closed stage of the case.

This system sits at the meeting point of national security and fair trial rights under Article 6 ECHR. It is used in several settings, including civil claims under the Justice and Security Act 2013, the Special Immigration Appeals Commission (SIAC), Terrorism Prevention and Investigation Measures (TPIMs), and some employment and tribunal contexts.

SAs work independently. They can review closed evidence, challenge the case for secrecy, and argue for disclosure or “gisting” (summary disclosure) where possible. Once they have seen closed material, they cannot communicate with the excluded person or their open lawyers without the court’s permission. This guide explains the legal framework, day‑to‑day practice, common criticisms, and what effective case management looks like for all involved.

What You’ll Learn

• Where and when CMPs can be used in the UK
• Who special advocates are and how they are appointed
• The communication ban after an SA sees closed material, and how to seek permission to talk to the excluded person
• How disclosure, redaction, and gisting work in practice
• How key cases (including Al Rawi, AF (No 3), Bank Mellat (No 2), and Tariq) shape fairness in CMPs
• Typical criticisms of the SA model and reform proposals
• Ethical duties for SAs and open representatives
• International approaches from Canada, Australia, and others
• Practical steps for claimants, defendants, and SAs to improve fairness

Core Concepts

Closed Material Proceedings: the basics

• Purpose: CMPs allow a court to consider sensitive material (e.g., intelligence) without risking harm to national security through disclosure.
• Legal basis:
  • Justice and Security Act 2013 (Part 2) for civil cases in the High Court, Court of Appeal, and the Supreme Court.
  • Special Immigration Appeals Commission Act 1997 and SIAC Procedure Rules for immigration/nationality cases.
  • TPIM Act 2011 and related rules for terrorism prevention measures.
  • Employment and tribunal settings where specific rules permit closed evidence.
• Open vs closed:
  • Open material is shared with all parties.
  • Closed material is withheld from the excluded party but seen by the court, government lawyers, and the SA.
  • The court should use the least restrictive option that protects national security while keeping the hearing as open as possible.

Who are Special Advocates?

• Status: SAs are independent, security‑cleared barristers appointed from a panel (arranged through the Attorney General/Special Advocates’ Support Office) when the court directs.
• Role:
  • Represent the interests of the excluded person in the closed stage.
  • Test the government’s assertions about secrecy, necessity, and proportionality.
  • Seek further disclosure or a usable gist, and challenge closed evidence (including cross‑examining witnesses in closed session).
  • Make both written and oral submissions in closed hearings and propose alternatives to full non‑disclosure (e.g., redactions).
• Independence: SAs do not take instructions in the usual way and owe duties to the court; they also act in the interests of the excluded person within the limits of the closed process.

Confidentiality and communication rules

• The golden rule: Once an SA sees closed material, they must not communicate with the excluded person or their open team without the court’s permission.
• Seeking permission: The SA can draft focused requests to ask the court to allow limited communication (e.g., to ask clarifying questions that do not reveal closed content).
• Practical impact:
  • The SA will exploit all pre‑closure contact to gather background and potential lines of enquiry.
  • After seeing closed material, the SA may ask the court to permit narrow questions to the excluded person to test potential defences or alibis—framed so they reveal nothing sensitive.
• Ongoing review: The government is expected to keep disclosure under review and agree to further open disclosure or gists when risk reduces or precision becomes possible.

Fairness standards and legal tests

• Article 6 ECHR: The right to a fair hearing applies. The court must ensure the excluded person can effectively challenge the case against them, so far as possible.
• Gisting: Following cases such as Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, fairness may require a sufficient gist of the closed allegations to allow meaningful instructions, subject to strict limits where disclosure would cause real harm to national security.
• Judicial control: Judges decide whether CMP is necessary, whether less restrictive measures would work, and how to structure the open/closed boundary. They press parties to maximise open material and provide reasons in open judgments wherever possible.

Ethics in practice

• Duties: SAs must act with independence, maintain strict confidentiality, avoid conflicts, and assist the court to reach a fair outcome.
• Tensions: The communication ban can leave SAs short of instructions. They must balance their duty to the court with their role in protecting the excluded person’s interests in closed.
• Professional guidance: Bar Council and Bar Standards Board materials help SAs and open counsel manage these tensions, including how to seek permission to communicate and how to record and justify decisions affecting fairness.

International models (brief overview)

• Canada: Immigration and refugee cases use special advocates under the Immigration and Refugee Protection Act. There is a similar communication restriction and focus on gisting where feasible.
• Australia: The National Security Information (Criminal and Civil Proceedings) Act 2004 enables closed processes and the use of security‑cleared counsel in some contexts, though the model differs from the UK/Canada SA system.
• Takeaway: Different systems face the same core problem—how to let a court consider sensitive material while keeping the process fair. Comparative practice supports strict judicial control, regular disclosure review, and the use of clear gists where safe.

Key Examples or Case Studies

Al Rawi v Security Service [2011] UKSC 34

• Context: Could CMPs be used in ordinary civil claims without an Act of Parliament?
• What the court said: No. There is no general common law power to run civil trials in secret; Parliament must authorise it.
• Practice point: This judgment led directly to the Justice and Security Act 2013, which now provides the statutory route for CMPs in civil cases.

Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28

• Context: Control orders relied on secret material.
• What the court said: Fairness requires that the individual is given enough of the case (a “gist”) to enable meaningful instructions, even in national security cases, unless giving that gist would cause unacceptable harm.
• Practice point: Gisting is a live issue in CMPs. SAs should press for it; courts should keep the need for gists under constant review.

Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39

• Context: A challenge to financial restrictions imposed on an Iranian bank, involving both open and closed hearings.
• What the court said: The court scrutinised the government’s case closely and gave as much of its reasoning as possible in open. Closed reasoning should be kept to what is strictly necessary.
• Practice point: Expect robust judicial control of secrecy claims and pressure to put matters into open where risk allows.

Tariq v Home Office [2011] UKSC 35

• Context: An employment tribunal case involving national security material and a closed process.
• What the court said: Closed procedures can be compatible with Article 6. The exact scope of gisting depends on context, but fairness remains the guiding principle.
• Practice point: In employment and tribunal settings, the court or tribunal will balance fairness and security; SAs and open counsel should tailor gisting requests to what is needed for effective instructions.

Practical Applications

• Before a CMP is declared

  • Consider alternatives: public interest immunity (PII), confidentiality rings, anonymisation, redaction, agreed summaries, or staged disclosure.
  • If CMP is sought, challenge necessity and scope. Ask the court to require a detailed schedule of closed material and why each item cannot be disclosed or summarised.

• Preparing for a closed stage

  • Open team: Front‑load instructions. Provide the SA with detailed background, proposed lines of challenge, and questions for witnesses before any closed material is seen.
  • Government team: Maintain and update disclosure schedules; consider redactions and safe gists; keep necessity under review; narrow closed issues where possible.
  • Court directions: Seek timetables that allow the SA to apply for permission to communicate after reviewing closed material.

• During the closed stage

  • SA focus areas:
    • Test whether secrecy is truly needed for each item.
    • Push for redactions or gists where safe.
    • Challenge reliability, provenance, and weight of closed evidence (including hearsay and intelligence assessments).
    • Cross‑examine in closed where appropriate and ask for targeted permission to put non‑sensitive questions to the excluded person.
  • Judicial management:
    • Regularly review what can move from closed to open.
    • Ensure reasons are provided in an open judgment as far as possible.

• After judgment

  • Open team: Check the open judgment captures the key reasons; consider whether closed reasons have unduly influenced the outcome; take advice on appeal rights.
  • SA: Consider whether any further gist can now be released; if appealing, liaise with the court about handling closed grounds and materials.

• Ethical and professional practice

  • Record decisions about disclosure and communication requests.
  • Use Bar Council guidance on managing confidentiality and conflicts.
  • Keep in mind equality of arms: if the closed case relies on contested assertions, the court may need to push for a gist or further disclosure.

• International comparisons for context

  • Cite Canadian case law and practice on gisting in immigration security cases to show workable alternatives.
  • From Australia, note judicial insistence on narrow secrecy claims and the use of redaction rather than full non‑disclosure where possible.

Summary Checklist

• Confirm the statutory basis for any CMP (e.g., Justice and Security Act 2013; SIAC Act 1997).
• Challenge the need for CMP and press for narrower alternatives first.
• Appoint an SA promptly; make full use of pre‑closure contact to equip them with context and proposed lines of challenge.
• Remember the communication ban after the SA sees closed material; use targeted permission applications.
• Seek gists that allow meaningful instructions, bearing in mind AF (No 3).
• Keep disclosure under rolling review; move material from closed to open wherever safe.
• Expect judges to keep reasons as open as possible and to scrutinise secrecy claims.
• Use case law authorities: Al Rawi (statutory basis needed), AF (No 3) (gisting), Bank Mellat (open reasoning), Tariq (fairness in tribunals).
• Record and justify disclosure decisions and communication requests to assist any appeal.
• Consider comparative practice (Canada/Australia) to support proposals for safe gists and redactions.

Quick Reference