Witness IIA126, R (on the application of) v Chair of Independent Inquiry Relating to Afghanistan [2025] EWHC 2842 (Admin)

[2025] EWHC 2842 (Admin)Case No AC-2025-LON-002497
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3/11/2025
Before
THE HON. MRS JUSTICE STEYN DBE
Between
THE KING (on the application of WITNESS IIA126)ClaimantCHAIR OF THE INDEPENDENT INQUIRY RELATING TO AFGHANISTANDefendantSECRETARY OF STATE FOR DEFENCEInterested PartyTHE AFGHAN FAMILIESInterested PartyTHE GREEN HEARING RESTRICTION ORDER APPLICANT(S)Interested PartyTHE ROYAL MILITARY POLICEApplicant
Kate Grange KC, Caroline Stone and Max Mills (instructed by the Government Legal Department) for ClaimantJonathan Glasson KC, Jonathan Polnay KC and Paul Skinner (instructed by the Solicitor to the Independent Inquiry Relating to Afghanistan) for DefendantAndrew O’Connor KC, Steven Gray and Edward Pleeth (instructed by the Government Legal Department) for First Interested PartyHelen Law, Jessica Jones and Sarah Dobbie (instructed by Leigh Day) for Second Interested PartyMatthew Butt KC (instructed by Kingsley Napley) for Third Interested PartyPaul Greaney KC, John Goss and Paige Jones (instructed by the Government Legal Department) for ApplicantHearing Hearing date: 3 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 3 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HON. MRS JUSTICE STEYN DBE

Introduction

[1]The claim seeks judicial review of two linked decisions made by Sir Charles Haddon-Cave, Chair of the Independent Inquiry relating to Afghanistan (‘the Inquiry’), namely:(i) the ‘Ruling on Approach to Green Hearing Restriction Orders’ (‘the Approach Ruling’); and(ii) the ‘Ruling on Application for Green Hearing Restriction Orders (‘the RO Ruling’). The reasons for the RO Ruling were given in OPEN and CLOSED rulings. The question whether to grant or refuse permission to apply for judicial review on any or all grounds has not yet been considered.[2]This case management hearing was listed by the Order of Chamberlain J dated 8 September 2025 to consider, among other matters: “OPEN and CLOSED submissions in relation to: (a) The jurisdictional basis for any closed material procedure; … [and] (e) any further directions necessary (including as to the appointment of any special advocate).”

… [and]

[3]The first of those matters raises a novel issue regarding the interplay between the statutory power to order a closed material procedure (‘CMP’) pursuant to the Justice and Security Act 2013 (‘the JSA 2013’) and the separate jurisdiction to do so identified by the Supreme Court in R (Haralambous) v Crown Court of St Albans [2018] UKSC 1, [2018] AC 236.[4]A preamble records that the Order was made upon:
“the Court deciding that, in light of the agreement of the parties that the determination of permission will require consideration of CLOSED material, the Court may receive CLOSED material pursuant to the inherent jurisdiction for the sole purpose of deciding procedural issues in advance of any consideration whether to grant permission to apply for judicial review.”
[5]Accordingly, I held an OPEN hearing attended by all the parties and interested parties, and then a short CLOSED hearing from which the Claimant and the Afghan Families, as well as the public, were excluded.[6]The parties agree (at least provisionally, pending the appointment of any special advocates) that the Court should order a CMP. However, an order for a CMP will not be made simply because the parties consent. In accordance with the principle of open justice, ordinarily the administration of justice takes place in public. Any derogation from the principle of open justice is a decision for the court.[7]The parties disagree as to whether such an order should be made pursuant to(i) the JSA 2013; or(ii) applying Haralambous; or(iii) on both bases. In short, the Defendant (supported by the Green Hearing Restriction Order Applicant(s), ‘GHROA’) submits that a CMP should be ordered under the Haralambous jurisdiction. Whereas the Claimant contends that if and to the extent that the statutory basis in the JSA 2013 enabling the adoption of a CMP is available, the court does not have a free choice as to which jurisdictional basis to adopt. It must apply the JSA 2013, albeit the court may, in parallel, use the Haralambous jurisdiction to protect material which does not fall within the definition of “sensitive material” in the JSA 2013.[8]For the reasons given in this judgment, supplemented by a separate CLOSED judgment, I will make a declaration under s.6 of the JSA 2013 that the proceedings are proceedings in which a closed material application may be made to the court; and, further, that a closed material application may be made pursuant to the inherent jurisdiction. In other words, I conclude that a CMP should be adopted on both bases. I will also make directions for the appointment of special advocates to represent the interests of each excluded party.

Al Rawi v Security Service

[9]The ordinary position is that the court should only have regard to and rely on material that is available to and seen by all parties to a claim. That ordinary position is maintained when the court determines that material should be withheld on grounds of public interest immunity (‘PII’) because the consequence of a successful PII claim is, in almost all cases Where the PII material is so central to the issues that it would not be fair for the proceedings to continue, the court may strike out the claim: see Carnduff v Rock [2001] 1 WLR 1786; Al Rawi v Security Service [2012] 1 AC 531, [15]; and the Administrative Court Guide, para 19.2.10. , that the court will disregard the PII material. A CMP is an exception to the ordinary position, as the effect is to allow a party to rely on material which, on public interest grounds, is withheld from disclosure to another party or parties (‘CLOSED material’); and the court can base its decision on such material.[10]In Al Rawi v Security Service [2012] 1 AC 531, [2011] UKSC 34 the Supreme Court considered the question whether a CMP may be employed in the absence of statutory authority. In Al Rawi the claimants alleged that the Security Service and other organs of the state had been complicit in their detention and ill-treatment at various locations abroad, including Guantanamo Bay. The causes of action pleaded included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998.[11]The Supreme Court held that, subject to two “narrowly defined” exceptions ([65]), it is not permissible for the court to adopt a CMP in an ordinary civil claim or a judicial review claim. Such a procedure requires parliamentary authorisation ([69]). The exceptions relate to cases where “the whole object of the proceedings is to protect and promote the best interests of a child [and] disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the whole object of the exercise” ([63]); and cases where “the whole object of the proceedings is to protect a commercial interest”, and where full disclosure would “render the proceedings futile” (such as intellectual property proceedings in which confidentiality rings are commonplace) ([64]). The Supreme Court left open the question whether, in addition, a CMP can be employed where the parties agree ([46]).[12]Although Al Rawi was a civil claim for damages founded in tort and the Human Rights Act 1998, Lord Lloyd-Jones observed in Ramoon v Governor of the Cayman Islands [2023] UKPC 9 (in a judgment given by the Privy Council, with which Lord Reed, Lord Hodge, Lord Briggs and Lord Kitchin agreed) “Lord Dyson was clearly correct in his view (at para 62) that there could be no principled basis for distinguishing between ordinary civil claims and claims for judicial review” ([41]).[13]Following Al Rawi, Parliament enacted the JSA 2013, which enables the court to adopt a CMP in “relevant proceedings” (as defined in s.6(11)) where certain conditions are met. The definition of “sensitive material” in s.6(11) is narrowly defined to mean “material the disclosure of which would be damaging to the interests of national security”. Consequently, a CMP under the JSA 2013 is not available in proceedings in a criminal cause or matter: see R (Belhaj) v DPP (No.1) [2018] UKSC 33, [2019] AC 593. Nor is it available to protect material which is required to be withheld only on public interest grounds other than national security.[14]Section 6(1) of the JSA 2013 provides:
“The court seised of relevant civil proceedings may make a declaration that the proceedings are proceedings in which a closed material application may be made to the court.”
[15]Such a declaration (‘a s.6 declaration’) may be made on the application of the Secretary of State (whether or not the Secretary of State is a party), or any party, or of the court’s own motion: s.6(2) of the JSA 2013. And it must identify the party or parties to the proceedings who would be required to disclose the sensitive material (referred to in the JSA 2013 as “a relevant person”): s.6(8) of the JSA 2013. Once a s.6 declaration has been made, the proceedings are known as “section 6 proceedings”: ss.8(1) and 14(1) of the JSA 2013.[16]The court has power to make a s.6 declaration if the two conditions in ss.6(4) and (5) are met “in relation to any material that would be required to be disclosed in the course of the proceedings” (i.e. a sample of relevant CLOSED material): ss.6(3) and (6) of the JSA 2013. Sections 6(4) and (5) provide: “(4) The first condition is that –(a) a party to the proceedings would be required to disclose sensitive material in the course of proceedings to another person (whether or not another party to the proceedings), or(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following – (i) the possibility of a claim for public interest immunity in relation to the material, (ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material, (iii) section 56(1) of the Investigatory Powers Act 2016 (exclusion for intercept material), (iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section. (5) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.” (i) the possibility of a claim for public interest immunity in relation to the material, (ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material, (iii) section 56(1) of the Investigatory Powers Act 2016 (exclusion for intercept material), (iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.[17]The court is required to keep a s.6 declaration under review, and must undertake “a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed”: s.7(2) and (3). At the formal review, if the court considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings, it must revoke the s.6 declaration; and it may revoke it at any time, if it reaches that conclusion: s.7(2) and (3).[18]Section 8 of the JSA 2013 provides for the creation of rules of court which govern applications for the withholding of sensitive material in section 6 proceedings, other than from the court, any person appointed as a special advocate and, if the Secretary of State is not the relevant person but is a party, the Secretary of State. Various other provisions of the JSA 2013 also provide for the creation of rules of court. CPR Part 82 contains the relevant procedural rules governing section 6 proceedings. It is a detailed code.

(b) Haralambous

[19]In Haralambous, the claimant sought judicial review of a magistrate’s order for a warrant under section 8 of the Police and Criminal Evidence Act 1984 (‘PACE’), and of the Crown Court’s order under section 59 of the Criminal Justice and Police Act 2001 (‘CJPA 2001’). Those (and other) legislative provisions expressly enabled the magistrates’ court and the Crown Court to rely on CLOSED material: [26]-[27], [37], [40], [43]. But those provisions did not address the position of the High Court on an application for judicial review. It was common ground that the JSA 2013 was inapplicable (because the proceedings concerned a criminal cause or matter and/or the grounds for withholding the material did not relate to national security) ([11]).[20]The Supreme Court held that “judicial review can and must accommodate a closed material procedure, where that is the procedure which Parliament has authorised in the lower court or tribunal whose decision is under review” ([59]), thus expanding the exceptions that had been identified in Al Rawi.[21]In Haralambous, the court considered the situation was analogous (albeit not precisely so) to that in Bank Mellat v HM Treasury (No.1) [2013] UKSC 38, [2014] AC 700 ([54] and [56]). In Bank Mellat, the Supreme Court held that it had the power to adopt a CMP on appeal in circumstances where the courts below had adopted a CMP when considering applications to set aside financial restriction orders made pursuant to s.63 of the Counter-Terrorism Act 2008, pursuant to express statutory powers under that Act. The power was derived from s.40(2) of the Constitutional Reform Act 2005, which states that “an appeal lies to the court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings”, read together with s.40(5) of that Act, which provides that the Supreme Court “has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment”. The term “any judgment” in s.40(2) extends to a judgment which is wholly or partly closed, and it is implicit that for an appeal against such a judgment to be effective, the hearing before the Supreme Court would involve, at least in part, a CMP.[22]In Haralambous, at [54], Lord Mance DPSC (with whom all members of the Court agreed) noted “the alternative possibilities to a closed material procedure identified by Lord Neuberger PSC in Bank Mellat”:
“If a closed material procedure was not permissible, the alternative analyses were that (a) the appeal could not be entertained (compare Carnduff v Rock [2001] 1 WLR 1786) or (b) the Supreme Court could consider the closed material in open court, or (c) the court could determine the appeal without looking at the closed material (compare the Concordia case [2018] Bus LR 367), or (d) the court would be bound to allow the appeal or (e) the court would be bound the dismiss the appeal (compare the Rossminster case [1980] AC 952). Lord Neuberger of Abbotsbury PSC, speaking for the majority, said ... that analysis (a) ran contrary to section 40(2), analysis (b) would wholly undermine Part 6 of the [Counter Terrorism Act 2008], analysis (c) ‘would be self-evidently unsatisfactory and would seriously risk injustice, and in some cases it would be absurd’ (p738, para 41), and each of analyses (d) and (e) was ‘self-evidently equally unsatisfactory’: p.738, para 42.”
[23]Lord Mance observed that judicial review “is in origin a development of the common law, to ensure regularity in executive and subordinate legislative activity and so compliance with the rule of law, but it is now regulated by the Senior Courts Act 1981” ([56]). At [57], Lord Mance said:
“Although there are differences between judicial review and an appeal in the normal sense of that word, many of the considerations which were of weight in the Bank Mellat case ... on an appeal from lower courts conducting closed material procedures are also of weight in relation to judicial review of lower courts conducting such procedures. In Bank Mellat, a determination by the Supreme Court on a basis different from that required and adopted in the courts below would have been self-evidently unsatisfactory, risk injustice and in some cases be absurd. So too in the present context it would be self-evidently unsatisfactory, and productive potentially of injustice and absurdity, if the High Court on judicial review were bound to address the matter on a different basis from the magistrate or Crown Court, and, if it quashed the order, to remit the matter for determination by the lower court on a basis different from that which the lower court had quite rightly adopted and been required to adopt when first considering the matter. ...”
[24]Lord Mance cited subsections (2A), (3C), (5) and (5A) of s.31 of the Senior Courts Act 1981 ('the SCA 1981'). He considered that “subsections (5) and (5A), read together, only work on the basis that it is open to the High Court to consider and, where appropriate, itself give effect to the decision which the lower court or tribunal should have reached, if there is only one such decision which it could have reached” ([57]). Those subsections “will not work” if the High Court cannot by a CMP have regard to CLOSED material. Subsections (2A) and (3C) also “postulate that the High Court will be considering the outcome on the same basis as the lower court or tribunal” ([58]).[25]In light of those statutory provisions (i.e. s.31 of the SCA 1981), and having considered the alternative possibilities, Lord Mance reached the conclusion I have quoted in paragraph 20 above. He observed that the Supreme Court in Al Rawi had not directed its attention to this very special situation, which was similar to the two exceptions it did identify ([59]). Lord Mance concluded at [59]:
“I consider that the scheme authorised by Parliament for use in the magistrates’ court and Crown Court, combined with Parliament’s evident understanding and intention as to the basis on which judicial review should operate, lead to a conclusion that the High Court can conduct a closed material procedure on judicial review of a magistrate’s order for a warrant under section 8 of PACE or a magistrate’s order for disclosure, or a Crown Court judge’s order under section 59 of the CJPA. I add, for completeness, that even before judicial review was regulated by statutory underpinning, I would also have considered that parallel considerations pointed strongly to a conclusion that the present situation falls outside the scope of the principle in the Al Rawi case and that a closed material procedure would have been permissible on a purely common law judicial review.”
Developments since

Haralambous

[26]There have been relatively few cases invoking the Haralambous jurisdiction, and most have been warrantry cases.[27]In Competition and Markets Authority v Concordia International Rx (UK) Ltd [2018] EWCA Civ 1881, [2018] Bus LR 2452, the Court of Appeal applied Haralambous in the context of an appeal against a warrant issued under s.28 of the Competition Act 1998. There is no reason to think that the CLOSED material would have been “sensitive material” as defined in s.6(11) of the JSA 2013. So the way in which the Haralambous and JSA 2013 jurisdictions interact was not in issue.[28]In R (da Silva) v Sir John Mitting (sitting as chairman of the Undercover Policing Inquiry) [2019] EWHC 426 (Admin), Supperstone J adopted a CMP ([9]) in the context of a judicial review of a ruling made by the chairman of an inquiry set up pursuant to the Inquiries Act 2005 (‘the 2005 Act’) . It is clear from his order dated 8 October 2018 that the CMP was adopted by consent. It seems likely that he took the view that the Haralambous jurisdiction extended to judicial review of a ruling made by a statutory inquiry. However, there is no reference to Haralambous on the face of the order or judgment and it is possible that he considered such jurisdiction existed in light of the parties’ agreement. Supperstone J did not make a s.6 declaration and, having regard to the basis for the restriction orders ([31]), it seems likely that such a declaration could not have been made, as the CLOSED material was not “sensitive material” within the meaning of the JSA 2013. In the absence of analysis of the jurisdictional basis for adopting a CMP in that case, and given the likelihood that the JSA 2013 was of no relevance in da Silva, I do not consider that it is of any assistance on the interaction between the Haralambous and JSA 2013 jurisdictions. But it provides some support for the proposition that the Haralambous jurisdiction extends to statutory inquiries.[29]In R (Privacy International) v Investigatory Powers Tribunal [2019] EWHC 3285, in the context of a judicial review of a decision made by the Investigatory Powers Tribunal regarding sharing of bulk communications data and bulk personal data with foreign agencies, Supperstone J directed the appointment of a special advocate “under the court’s inherent power identified in Haralambous” ([8]). He observed at [4]:
“It is not in dispute that the court has inherent jurisdiction to adopt a closed material procedure in this claim: R (Haralambous) v Crown Court of St Albans [2018] AC 236.”
And then continued at [8]:
“I expressly leave open the question that has been raised as to whether if this claim proceeds the basis of the CMP should be the inherent power or s.6 of the JSA.”
[30]The claim was heard by a Divisional Court and CLOSED material was considered in theCMP directed by Supperstone J, pursuant to the Haralambous jurisdiction: [2022] EWHC 770 (QB), [2022] 4 WLR 75, at [5]-[6] and [79]. The procedure he directed replicated that which would have applied if the special advocate had been appointed under the JSA 2013. It is apparent that material was withheld from disclosure to the claimant in the interests of national security ([5]). However, the argument as to the proper jurisdictional basis for adopting a CMP that Supperstone J had expressly left open was not the subject of submissions or of any decision. So this authority, too, although more pertinent because it is a civil judicial review relating to national security, leaves the issue open.[31]In Secretary of State for Defence v Persons Unknown [2023] EWHC 2999 (KB), Chamberlain J considered CLOSED material in the context of a claim for a super-injunction contra mundum (i.e. against the world) preventing the disclosure of information about the compromise of a highly sensitive dataset. He determined that the JSA 2013 was inapplicable because the applicant was the only party. There was no “excluded party” whose interests a special advocate could be appointed to represent and CPR 82.13(1)(b) precludes reliance on sensitive material unless a special advocate has been appointed. In determining that, in these circumstances, it was necessary to adopt a bespoke CMP (replicating insofar as necessary and relevant the safeguards in CPR Part 82), and that doing so promoted rather than undermined the objects of the JSA 2013, Chamberlain J said at [22]:
“I have borne in mind that it is in general undesirable, and in most circumstances impermissible, for the court to create under the inherent jurisdiction bespoke regimes for considering CLOSED evidence. In general, the JSA 2013 occupies the ground and the court should be slow to supplement it.”
[32]Haralambous has been extended beyond warrantry cases to encompass judicial review of the Investigatory Powers Tribunal and (it seems: see da Silva) a statutory inquiry. The parties are at one that, subject to consideration of how it interacts with the JSA 2013, the Haralambous jurisdiction is available in this case. I agree. Although I do not consider that the Inquiry falls within the definition of “court or tribunal” in s.31 of the SCA 1981 (see paragraph 40 below), Lord Mance’s reasoning in Haralambous applies with equal force to judicial review of a judicial ruling made by the chair of a judicial inquiry held pursuant to the Inquiries Act 2005 (‘the 2005 Act’).

Interaction between the JSA 2013 and the Haralambous jurisdiction

[33]The Defendant contends that both jurisdictional bases for ordering a CMP apply, and that it is open to the court to choose between them. The Defendant submits that as the Inquiry’s restriction order, which is under challenge in this claim, was based on a conclusion that there was a risk of serious harm to witnesses and to national security, and those two harms may, or may not, overlap in any given case, it would be preferable to adopt a Haralambous CMP in which the narrow definition of “sensitive material” given in the JSA 2013 would not apply.[34]The Claimant submits, and I agree, that the starting point for resolving the apparent overlap of these two different CMP jurisdictions is a close analysis of the basis on which the Supreme Court determined that the Haralambous jurisdiction existed.

Is the Haralambous jurisdiction based on common law or statute?

[35]In his written submissions, the Defendant asserts that the High Court’s ability to conduct a Haralambous CMP is derived from an implied power in the statutory regime governing the lower court or body, here the 2005 Act. Pursuant to s.17(1) of the 2005 Act, subject to any provision of the Act or rules, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct. Section 19 of the 2005 Act expressly provides:
“(1) Restrictions may, in accordance with this section, be imposed on- (a) attendance at an inquiry, or at any particular part of an inquiry; (b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry. (2) Restrictions may be imposed in either or both of the following ways- (a) by being specified in a notice (a ‘restriction notice’) given by the Minister to the chairman at any time before the end of the Inquiry; (b) by being specified in an order (a ‘restriction order’) made by the chairman during the inquiry. (3) A restriction notice or restriction order must specify only such restrictions- (a) as are required by any statutory provision, assimilated enforceable obligation or rule of law, or (b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4). (4) Those matters are- (a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern; (b) any risk of harm or damage that could be avoided or reduced by any such restriction; (c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry; (d) the extent to which not imposing any particular restriction would be likely- (i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or (ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). (5) In subsection (4)(b) ‘harm or damage’ includes in particular- (a) death or injury; (b) damage to national security or international relations; (c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom; (d) damage caused by disclosure of commercially sensitive information.” (a) attendance at an inquiry, or at any particular part of an inquiry; (b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry. (a) by being specified in a notice (a ‘restriction notice’) given by the Minister to the chairman at any time before the end of the Inquiry; (b) by being specified in an order (a ‘restriction order’) made by the chairman during the inquiry. (a) as are required by any statutory provision, assimilated enforceable obligation or rule of law, or (b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4). (a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern; (b) any risk of harm or damage that could be avoided or reduced by any such restriction; (c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry; (d) the extent to which not imposing any particular restriction would be likely- (i) to cause delay or to impair the efficiency or effectiveness of the inquiry, or (ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). (a) death or injury; (b) damage to national security or international relations; (c) damage to the economic interests of the United Kingdom or of any part of the United Kingdom; (d) damage caused by disclosure of commercially sensitive information.”
[36]In my judgment, it is incorrect to say that in Haralambous the Supreme Court found that the High Court’s power to hold a CMP could be implied into the legislation governing the lower courts. The provisions of PACE and of the CJPA 2001 were an important backdrop to the Supreme Court’s decision because it was those provisions which gave the lower courts their powers to hold a CMP. But the Supreme Court did not find in PACE or the CJPA 2001 an implied power for the High Court, on a claim for judicial review, to hold a CMP. Nor did the Supreme Court, in Bank Mellat,find its own power to hold a CMP in the provisions of the Counter-Terrorism Act 2008. Again, the latter Act was the critical backdrop because it gave the Court of Appeal, whose judgment was the subject of appeal, the power to hold a CMP.[37]Of course, whether such a power can be implied will depend on the terms of the particular statute. But I can see no proper basis, applying ordinary principles of statutory construction, for reading into s.19 of the 2005 Act – which provision says nothing about the powers of the High Court - a power to hold a CMP on judicial review of an inquiry ruling.[38]In his oral submissions on behalf of the Defendant, Mr Jonathan Glasson KC shifted emphasis away from the 2005 Act, relying instead on s.31 of the SCA 1981. The subsections cited by Lord Mance state:
“(2A) The High Court- (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. ... (3C) When considering whether to grant leave to make an application for judicial review, the High Court- (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. ... (5) If, on an application for judicial review, the High Court makes a quashing order in respect of the decision to which the application relates it may in addition- (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in according with the findings of the High Court, or (b) substitute its own decision for the decision in question. (5A) But the power conferred by subsection (5)(b) is exercisable only if- (a) the decision in question was made by a court or tribunal, (b) the quashing order is made on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached.” (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in according with the findings of the High Court, or (b) substitute its own decision for the decision in question. (a) the decision in question was made by a court or tribunal, (b) the quashing order is made on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached.”
[39]The Defendant contends that the Supreme Court held that these provisions impliedly gave the High Court power to hold a CMP, in order to address the matter on the same basis as the lower courts, and so the Haralambous jurisdiction, like the JSA 2013 jurisdiction, is statutory.[40]I note that there is no definition of the term “court or tribunal” for the purposes of s.31(5A). In my judgment on the Royal Military Police’s (‘RMP’) application to be joined as an interested party, addressing the RMP’s reliance on para 4.6(2) of Practice Direction 54A, I ruled that the term “court or tribunal” in the Practice Direction should be interpreted consistently with that same term where it appears in s.31 of the SCA 1981. I held that the Inquiry does not fall within that term. It is obviously not a “court”. Ordinarily, a tribunal would be understood to be a judicial body which determines certain types of dispute. The Inquiry has not been set up to determine a dispute. There is no lis between the Core Participants before the inquiry. There are no parties as such before the Inquiry. It follows that s.31(5)(b) and (5A) are inapplicable. Nevertheless, the point remains that s.31(2A), (3C) and s.31(5)(a) “postulate that the High Court will be considering the outcome on the same basis” (Haralambous, [58]) as the public body whose decision is subject to challenge.[41]Ms Kate Grange KC, on behalf of the Claimant, contends that the correct analysis is that the basis for a Haralambous CMP is the High Court’s inherent jurisdiction at common law. I agree.[42]First, although Lord Mance placed reliance on “the statutory underpinning” provided by s.31 of the SCA 1981, he did not analyse the statutory language or explain how, applying ordinary principles of construction, a power to hold a CMP could be read in. That is because he was not construing the section, but relying on it to demonstrate “Parliament’s evident understanding and intention as to the basis on which judicial review should operate”, bearing in mind that judicial review is a common law procedure, the continuing existence of which is not dependent on the SCA 1981 (General Medical Council v Michalak [2017] 1 WLR 4193, [31]-[35]).[43]Secondly, while the High Court’s power “to substitute its own decision” only applies where the challenged decision is that of a court or tribunal (s.31(5)(b) and (5A)), there may – depending on the High Court’s findings – be no difference, in effect, between substitution and a direction to reconsider the matter and reach a decision in accordance with the court’s findings. The latter remedy is available in respect of any “authority” whose decision is challenged on judicial review (s.31(5)(a)). Equally, subsections (2A) and (3C), on which Lord Mance relied, are not restricted to challenges to decisions of courts or tribunals. It follows that if the Supreme Court had found an implied power to hold a CMP in s.31(2A), (3C) or (5)(a), the Haralambous jurisdiction would extend to all judicial review claims. Plainly, it is not so far-reaching.[44]Thirdly, the Court’s first basis for finding the existence of the Haralambous jurisdiction – based on the unsatisfactory and absurd state of affairs that would result were it otherwise ([55], [57]) – is free-standing and not dependent on analysis of s.31 of the SCA 1981. And Lord Mance noted the “similarity” with the two exceptions identified in Al Rawi ([59]), both of which were derived from the court’s inherent jurisdiction.[45]Fourthly, some support for this conclusion is provided by Supperstone J’s description in Privacy International of the Haralambous jurisdiction being “inherent” ([4]) and of the choice being between “the inherent power” identified in Haralambous and the s.6 power ([8]). This also reflects the analysis in National Security Law, Procedure and Practice (2nd ed., 2024), Ward and Blundell (eds.), para 16.143:
“the Supreme Court held that when considering a judicial review of a lower court’s decision made pursuant to a statutory CMP in that court, the reviewing court is also able – through the common law – to hold a CMP”
(emphasis added).

What follows from identifying the Haralambous jurisdiction as being derived from the common law?

[46]As the Supreme Court observed in R (Miller) v Prime Minister (Lord Advocate and ors intervening) [2019] UKSC 41, [2020] AC 373, “laws enacted by the Crown in Parliament are the supreme form of law in our legal system”. The JSA 2013 was enacted to enable CMPs to be held in a broader range of civil proceedings than was possible prior to its enactment. Its provisions provide a mechanism whereby a court can consider (and rely upon as part of its determination) material which cannot be disclosed on national security grounds (other than to the court, special advocate and, where relevant, the Secretary of State). It follows from the identification of a Haralambous CMP as a creature of common law that it cannot displace the specific statutory provisions enacted by Parliament to govern the protection and use in civil proceedings of “material the disclosure of which would be damaging to the interests of national security”.[47]The GHROA raised a further argument that the court should conclude that the only available option is a Haralambous CMP because the “second condition” identified in s.6(5) of the JSA 2013 is not met. The argument runs that the court should not conclude that it is “in the interests of the fair and effective administration of justice” to make a s.6 declaration because only a Haralambous CMP can mirror the protections of the 2005 Act and ensure that the material which was protected in the Green Hearings can be protected in a CMP in the present proceedings.[48]They submit that the inherent jurisdiction is “the great safety net which lies behind all statute law”: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, per Lord Donaldson MR at 13D (cited by the Supreme Court in T (A Child) [2021] UKSC 35, [2022] AC 723 at [67]. The inherent jurisdiction can be used to supplement a statutory scheme “to fill a gap or to avoid injustice” and to avoid harm (Tameside v AM [2021] EWHC 2472 (Fam), [50]; T (A Child), [67] and [145]).[49]In my judgment, caution needs to be exercised in relying upon case-law concerned with the inherent jurisdiction of the High Court with respect to children, which derives from the royal prerogative, as parens patriae, to take care of those who are not able to take care of themselves, in this very different context. In any event, as the GHROA acknowledge, the inherent jurisdiction cannot be used to contradict, cut across or displace the statutory regime.[50]In my judgment, any application to withhold material from disclosure to any party on the grounds its disclosure would be damaging to national security can only be made pursuant to the JSA 2013, and the court can only consider such “sensitive material” in accordance with the provisions of that Act and of CPR Part 82. As the Claimant has rightly identified, on proper analysis, it is not open to the court to choose to adopt a CMP pursuant to its inherent jurisdiction, instead of applying the bespoke statutory regime. At least where s.6 proceedings are available, “the JSA 2013 occupies the ground” (as Chamberlain J put it in Secretary of State for Defence v Persons Unknown, [22]).[51]The effect of the Defendant’s and the GHROA’s contention would be to displace the bespoke statutory regime with a common law procedure. The common law’s ability to replicate the statutory regime in a Haralambous CMP does not alter the position. In respect of national security material, the court is required to apply the statutory regime. If, in any proceedings, a JSA 2013 CMP would be contrary to the “fair and effective administration of justice in the proceedings”, the consequence would be that any “sensitive material” would be subject to the PII regime. It is not open to the court to decide that the definition Parliament chose to adopt in s.6(11) is too narrow for a JSA 2013 CMP to be fair and effective in respect of “sensitive material”, and then to consider that material in a Haralambous CMP.[52]If a CMP is employed in respect of “sensitive material”, it has to be pursuant to the JSA 2013, and that leaves open two possibilities in respect of non-national security sensitive material. Either such material can be considered in a CMP pursuant to the inherent jurisdiction, or it may be subject to PII. In CF v Security Service [2013] EWHC 3402 (QB), Irwin J noted that in restricting the ambit of the JSA 2013 to material affecting national security, Parliament has created problematic anomalies. But the JSA 2013 and the PII regime can and do co-exist. The co-existence of CMPs pursuant to two parallel jurisdictions, if permissible, would be less problematic, not least as the court could give directions replicating the statutory regime, so that it would, in effect, be a single CMP to which a single set of rules apply (albeit with different derivations).

Is it permissible to adopt a CMP pursuant to both jurisdictions?

[53]No party seeks to argue against this course as their common aim is for a CMP to be adopted in which the court can consider all the material which was protected in the Green Hearings, rather than any part of that material potentially being held to be subject to PII, and so disregarded. Nevertheless, it has to be recognised that this course involves the court using the common law to “supplement” the JSA 2013, something the court should be slow to do, and to do so in a way which would, in effect, expand the definition of “sensitive material”.[54]I am, nonetheless, persuaded that the court may adopt a CMP pursuant to both the JSA 2013 and, in respect of material falling outside the s.6(11) definition, the Haralambous jurisdiction in a single case. If it were otherwise, the court would have inherent power to adopt a CMP in this case, with a view to protecting material the disclosure of which would be damaging to important public interests other than national security if there was no “sensitive material” as defined in s.6(11), but the existence of any such national security material would result in the court losing the power to protect and consider non-national security material in a CMP.[55]As I have said, the JSA 2013 was enacted to enable CMPs to be held in a broader range of civil proceedings than was possible prior to its enactment. In my judgment, Parliament did not intend to cut down or abrogate any inherent power to adopt a CMP in circumstances going beyond those addressed in the JSA 2013. Accordingly, I conclude that the court has the power to employ a CMP in this case in reliance on the JSA 2013 Act (in respect of “sensitive material”) and otherwise pursuant to the inherent jurisdiction. Application of the law to this case Should the court make a s.6 declaration of its own motion?

Application of the law to this case

[56]Although all parties seek a CMP, no party has made an application for a s.6 declaration. The Claimant seeks such a declaration, but could not apply for one because, without access to the material withheld by the Defendant, he would not have been able to comply with CPR 82.22. The Defendant and the GHROA have not applied for a s.6 declaration because of the stance they have taken on the jurisdictional issue, and the Secretary of State has taken a neutral position.[57]The Claimant submits that, if the court is satisfied that the conditions in ss.6(4) and (5) are met, it would be in the interests of speed and efficiency for the court to make a s.6 declaration of its own motion. Subject to any representations a special advocate may make on sight of the CLOSED material, the Claimant anticipates that the need to consider the CLOSED RO Ruling, and the content of that ruling, ought to be sufficient to enable the court to make a declaration. It is common ground that a PII exercise can be no substitute for a CMP in the circumstances of this case.[58]For the reasons I have given in my CLOSED judgment, I am satisfied that the conditions in ss.6(4) and (5) are met. Although it is unusual for the court to make a s.6 declaration of its own motion, the court has the power to do so, and in the circumstances of this case I have sufficient material to enable me to reach a clear conclusion that the Defendant would be required, were it not for the possibility of a claim for PII, to make disclosure of “sensitive material” in the course of the proceedings. I am satisfied that it is in the interests of the fair and effective administration of justice in the proceedings to make a s.6 declaration. It would be self-evidently unsatisfactory, would seriously risk injustice, and indeed it might be considered absurd (cf Bank Mellat and Haralambous), if the CLOSED RO Ruling were to be subject to PII, with the consequence that the court would have to consider this challenge to the RO Ruling without considering the Defendant’s CLOSED reasons.[59]I bear in mind that at this stage I have not heard from any special advocates. However, in accordance with s.7 of the JSA 2013, the court must keep the s.6 declaration under review and may revoke it at any time. So the special advocates will have an opportunity to seek to revoke the s.6 declaration, if any of them consider it appropriate to do so.

Should the court make directions enabling a Haralambous CMP in respect of non-national security material?

[60]In his OPEN RO Ruling, the Defendant noted that the GHROA application was supported by evidence that:
“(1) should their identity become known within the military community, they will be the subject of adverse consequences from individuals within UK Armed Forces and UKSF in particular; (2) disclosure of the detail of their evidence may lead to their identification; (3) matters relating to the vulnerability of individual witnesses support the making of such an order; (4) without such an order the witnesses would be unwilling to give evidence.”
[61]The Defendant concluded at [10] of the OPEN RO Ruling:
“Having carefully considered the evidence filed in support of the application, I am satisfied that there is a real risk of serious harm to the witnesses and to National Security that could be avoided by making the Restriction Order sought.”
[62]So it is clear that the Defendant’s conclusion was based on harm to the witnesses as well as harm to national security. In these circumstances, and for the reasons I have given in my CLOSED judgment, I am satisfied that I should make directions for a Haralambous CMP to be held, to enable the court to consider material that is sensitive for reasons other than national security, and which would otherwise have to be subject to PII.[63]In my judgment, the sensible course is to give directions, subject to further order, for the procedure to be followed in the CMP held pursuant to the inherent jurisdiction to replicate the statutory procedure.

Appointment of special advocates

[64]Special advocates are required to be appointed to represent the interests of any excluded parties in any CMP held pursuant to the JSA 2013. Given the nature of the exercise, it is clearly necessary that their appointment should extend to the full CMP, encompassing that part of the CMP which will be held pursuant to the inherent jurisdiction as well as the statutory CMP. Any other course would be unworkable and contrary to the interests of justice.[65]Accordingly, I will invite the Attorney General to appoint a special advocate to represent the interests of the Claimant, and a special advocate to represent the interests of the Afghan Families, in any future CLOSED hearings, including any further case management hearings to determine outstanding matters (including the Claimant’s disclosure application) prior to the Court’s consideration of permission.

Conclusion

[66]I will invite the parties to seek to agree a draft order for my consideration, in light of this judgment, and the orders made at the hearing on 3 October 2025.

Cited in 1 later judgment