TPL1, R (on the application of) v Secretary of State for Defence

Where national security is relied on to restrict disclosure, the court must scrutinise the objection and ensure the minimum derogation from open justice consistent with national security. It must give considerable respect to the executive’s assessment, while retaining responsibility for the legal decision. An inadvertent disclosure does not, by itself, require sensitive material to be published or reported. Where the material is unnecessary to the issues being decided and the national-security interest significantly outweighs the competing interests, disclosure may be restricted under the Justice and Security Act 2013 or, if necessary, under common-law public interest immunity principles.

The claimant, an Afghan national and former member of the Afghan Special Police Forces, brought judicial review proceedings concerning the Ministry of Defence’s Triples Review under the Afghan Relocations and Assistance Policy. The defendant had served two versions of caseworker guidance. One disclosed dates relating to UK Special Forces activity; the other redacted those dates but disclosed references to UK Special Forces. The defendant sought to prevent publication or reporting of the dates on national-security grounds. The claimant and the Special Advocates opposed the restrictions. The central issue was whether the court should permit reliance on the later version and restrict circulation of the earlier version despite the disclosure error.

1. Disclosure restrictions. The court permitted the defendant to rely in open session on Version 2 of the Guidance and ordered that Version 1 should not be published or reported upon on grounds of national security. The precise extent of any further confidentiality arrangements was left for agreement or further argument.
2. Judicial responsibility. The court has its own responsibility, under the Justice and Security Act 2013 or under common-law public interest immunity principles, to ensure that procedural consequences of a public-authority error do not damage the public interest. It must also ensure the minimum derogation from open justice consistent with national security.
3. Assessment of national security. The court must not reject a national-security objection without proper scrutiny, nor accept it without examination. It should show considerable respect for the executive’s assessment of national security, reflecting the judgment and policy entrusted to the executive: Secretary of State for the Home Department v Rehman [2001] UKHL 47.
4. Application. After hearing evidence from a senior UK Special Forces officer in closed session, the judge was satisfied that disclosure of the dates would damage national security. If section 8 applied, the statutory conditions for withholding the material were met. If common-law public interest immunity principles applied, the balance favoured restriction. The dates were not necessary for the claimant’s grounds, which could be advanced without them, and the national-security interests significantly outweighed the interests in disclosure.
5. Open justice. Open justice remains a fundamental principle and derogations require justification, reflecting Scott v Scott [1913] 417. That principle did not outweigh the established national-security objection on the evidence.
6. The court noted that the matter could be revisited if the national-security objection proved unfounded, but any further consideration would require the involvement of the Special Advocates in the usual way.