Introduction: Procedural innovations in national security litigation

There has been a range of procedural innovations in national security litigation. They generally attempt to reconcile state interests in secrecy with the increased use or relevance of secret intelligence in criminal trials, administrative proceedings, and civil litigation related to counter-terrorism. A fundamental question that runs throughout the three pieces in this focus feature is whether the innovations can be justified as being consistent with a fair and impartial application of the rule of law.

Security-cleared special advocates now play an important role in national security litigation, and this focus issue features contributions from two leading special advocates. Martin Chamberlain, QC, outlines in his contribution the evolving and expanding role of special advocates in the United Kingdom (UK). They were first used in immigration procedures, but are now used in civil litigation and judicial review proceedings and even in appellate proceedings. Chamberlain describes how judges in the UK have tended to think that special advocates make proceedings before them fair, whereas many of the special advocates themselves have expressed more scepticism. He also examines a number of ethical issues confronted by UK special advocates.

John Norris focuses in his contribution on recent proposals by the Canadian government to make significant changes to both criminal and civil national security litigation. Drawing on his experience as a special advocate and barrister, he argues that special advocates can play a helpful adversarial challenge role in the ex parte part of public interest immunity litigation conducted under section 38 of the Canada Evidence Act in the Federal Court.¹ He also argues that criminal court trial judges lack the expertise of the Federal Court in such matters and that they should only be able to make and revise non-disclosure orders with respect to late breaking issues at trial and not at the pre-trial stage.

Kent Roach and Craig Forcese argue in their contribution that Canadian criminal trial judges, like British and American trial judges, should be able to make and revise non-disclosure orders that seek to protect national security secrets. They warn that special procedures can undermine the legitimacy of legal proceedings by accommodating the sometime excessive demands of intelligence agencies for secrecy. They also argue against the Canadian government’s recent proposal to follow the British example of allowing the use of closed proceedings in civil litigation where plaintiffs could be excluded, but their interests represented by special advocates, something that Chamberlain notes has allowed some national security cases to be litigated that would not otherwise have been litigated.

The contributors do not agree on all issues. But their disagreements highlight the difficult issues raised for the rule of law by the existing and proposed procedural innovations that are significantly changing national security litigation in Canada and the UK.