Khaled & Anor v The Secretary of State for Foreign and Commonwealth Affairs & Ors

Part 2 of the Justice and Security Act 2013 establishes a self-contained scheme governing closed material procedures in civil proceedings, including judicial review. The statutory concept of the fair and effective administration of justice has an autonomous meaning within that scheme. It does not permit common law disclosure rights which contradict the Act’s express protection of national security.

Section 7(3) enables the court to review a closed material declaration on the basis of the full evidential picture. It does not create a freestanding power to require disclosure of a core minimum of sensitive material. Revocation is appropriate where the rationale for the closed material procedure has disappeared, not merely because common law fairness would otherwise favour additional disclosure.

The claimants challenged decisions concerning their nomination, designation and continued listing under the United Nations sanctions regime. Their judicial review claims were heard alongside related civil claims, and the court had made declarations under section 6 of the Justice and Security Act 2013 permitting closed material applications.

The preliminary issue was whether, notwithstanding Part 2 of the Act, the common law required disclosure of a core minimum of material sufficient to enable the claimants to challenge the case against them. The claimants relied in particular on section 7(3), arguing that it preserved or provided a gateway for that common law entitlement. The defendants contended that the statutory scheme was exhaustive.

1. Claim dismissed on the preliminary issue. The claimants were not entitled to a core minimum of disclosure at common law because that entitlement would contradict the Justice and Security Act 2013.
2. Part 2 of the Act creates a carefully defined and self-contained system for civil proceedings involving sensitive material. The phrase “in the interests of the fair and effective administration of justice in the proceedings” has a unitary and autonomous meaning within that system. Parliament’s policy judgment is that the closed material procedure may provide a fair and effective route where disclosure would damage national security.
3. Section 7(3) has the same substantive test as section 6(5), although the court considers all material placed before it after pre-trial disclosure rather than only a sample. Its purpose is to enable the court to revisit whether the rationale for the closed material procedure remains. Examples include where material has subsequently been placed in the open, or where the litigation can fairly be tried without reliance on closed material because the relevant issues are subordinate or peripheral.
4. The court’s powers on review are dichotomous: the section 6 declaration is revoked or it stands. The statute does not recognise partial revocation in order to enforce a common law entitlement to core minimum disclosure. Sections 8 and 11(1), which protect national security, are inconsistent with such an entitlement.
5. The principles in R v Secretary of State for the Home Department, ex parte Doody and [1994] 1 AC 531 did not assist because the statutory provision there did not exhaust general fairness rights. The principle of legality in R v SSHD, ex parte Simms and [2000] 2 AC 115 was likewise inapplicable where the statutory language was neither general nor ambiguous.
6. The authorities concerning Article 6 or other statutory regimes did not bind the court on the novel submission advanced. They generally supported the view that the relevant statutory schemes were exhaustive, but did not establish that section 7(3) allowed common law disclosure rights inconsistent with the 2013 Act. Costs were in the case.

First-instance judicial review decision. The judgment records earlier procedural stages in the same proceedings, including the section 6 declaration under the Justice and Security Act 2013, but no lower court decision under appeal.