Witness IIA126 v Chair of Independent Inquiry relating to Afghanistan: Closed material procedures in judicial review

The High Court has provided important clarity on when courts can use closed material procedures (CMPs) in judicial review proceedings, ruling that both statutory powers under the Justice and Security Act 2013 and the inherent jurisdiction identified in Haralambous may operate concurrently.

Mrs Justice Steyn's judgement addresses a novel jurisdictional question arising from a challenge to rulings made by the chair of the Independent Inquiry relating to Afghanistan. The case concerns the appropriate legal basis for adopting a CMP when reviewing decisions that engage both national security concerns and other public interest considerations.

The competing jurisdictions

The JSA 2013 provides a statutory framework for CMPs in civil proceedings where "sensitive material" – defined narrowly as material whose disclosure would damage national security – requires protection. The Act establishes detailed procedural safeguards, including mandatory appointment of special advocates and specific conditions that must be satisfied before a section 6 declaration can be made.

The Haralambous jurisdiction, established by the Supreme Court in 2018, permits CMPs on judicial review of lower court decisions that themselves employed closed procedures under statutory authority. This inherent power ensures the reviewing court can properly evaluate challenged decisions on the same evidential basis as the original decision-maker.

Statutory framework takes precedence

The court firmly rejected arguments that it enjoys a free choice between jurisdictional bases. Mrs Justice Steyn held that where the JSA 2013 applies, its statutory provisions must govern the treatment of national security material. The inherent jurisdiction cannot displace this Parliamentary scheme.

This conclusion flows from identifying Haralambous as a common law power rather than one implied into legislation. Whilst Lord Mance in Haralambous relied upon provisions of the Senior Courts Act 1981, he was not construing those sections to find an implied power but rather demonstrating Parliament's understanding of how judicial review operates. The jurisdiction remains fundamentally rooted in common law.

As the court observed, "the JSA 2013 occupies the ground" in respect of material falling within its scope. Any attempt to use inherent jurisdiction instead of the statutory regime for national security material would impermissibly allow common law to displace Parliamentary enactment.

Concurrent application

However, Mrs Justice Steyn concluded that both jurisdictions may operate together in a single case. Where proceedings involve both national security material (requiring the JSA 2013 framework) and other sensitive material falling outside that narrow definition, the court retains inherent power to protect and consider the latter category through a Haralambous CMP.

This approach avoids the unsatisfactory outcome whereby the presence of any national security material would eliminate the court's inherent power to protect other sensitive material through closed procedures, potentially forcing reliance on public interest immunity with its attendant limitations.

The court made a section 6 declaration of its own motion – an unusual but permissible step – being satisfied that the defendant would otherwise be required to disclose sensitive material and that a CMP served the fair and effective administration of justice. Special advocates will represent excluded parties throughout the combined procedure, which will replicate statutory safeguards even for the inherent jurisdiction component.

The judgement provides a principled framework for managing complex cases involving multiple categories of sensitive material, whilst preserving Parliamentary primacy over the treatment of national security information in civil proceedings.