Witness IIA126, R (on the application of) v Chair of Independent Inquiry Relating to Afghanistan

A court must use the statutory closed material procedure under the Justice and Security Act 2013 for material whose disclosure would damage national security where the statutory conditions are met. It cannot replace that regime with an inherent-jurisdiction procedure merely because the statutory definition of sensitive material is narrow. The inherent jurisdiction remains available for material falling outside that definition, including material withheld to protect other important public interests. Both procedures may operate together in one case, with the inherent-jurisdiction procedure replicating the statutory safeguards where appropriate.

The claimant sought judicial review of two rulings by the Chair of the Independent Inquiry Relating to Afghanistan concerning restrictions on hearings involving protected witnesses. The court had to determine the jurisdictional basis on which it could consider closed material before deciding permission to bring the judicial review.

The parties agreed that a closed material procedure was required but disagreed whether it should be ordered under the Justice and Security Act 2013, under the inherent jurisdiction identified in Haralambous, or under both jurisdictions. The court also considered whether it could make a statutory declaration of its own motion and whether special advocates should be appointed.

1. The court made a declaration under section 6 of the Justice and Security Act 2013 and directed a closed material procedure under the inherent jurisdiction. Special advocates were to be appointed for the claimant and the Afghan Families.

2. The Haralambous jurisdiction is an inherent common-law jurisdiction. It is not an implied power derived from the legislation governing the lower court or body whose decision is under review. The reasoning in Haralambous nevertheless applies to judicial review of a judicial ruling made by the chair of a statutory inquiry under the Inquiries Act 2005.

3. Where material is sensitive material within section 6(11) of the Justice and Security Act 2013, any application to withhold it from disclosure on national-security grounds must proceed under that Act and Civil Procedure Rules 1998, Part 82. The court cannot use the inherent jurisdiction instead of the statutory regime or expand the statutory definition because it considers that definition insufficiently broad.

4. The statutory and inherent jurisdictions may operate concurrently. The statutory procedure applies to national-security material, while the inherent jurisdiction may protect and permit consideration of material withheld for other reasons. The court may direct that the inherent-jurisdiction procedure replicate the statutory safeguards, producing in practical terms a single procedure with one set of rules.

5. The court may make a section 6 declaration of its own motion where the statutory conditions are satisfied. The declaration must remain under review and may be revoked under section 7. In this case, excluding the closed reasons for the challenged ruling would create a serious risk of injustice and make a fair and effective determination impossible.