AC-2025-LON-002497 - [2025] EWHC 2842 (Admin)

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.”

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.

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.

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.”

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.

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.

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.

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]).

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.

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.

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 (2^nd 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).