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

As the Supreme Court observed in R (Miller) v Prime Minister (Lord Advocate and ors intervening) [2019] UKSC 41, [2020] AC 373, “laws enacted by the Crown in Parliament are the supreme form of law in our legal system”. The JSA 2013 was enacted to enable CMPs to be held in a broader range of civil proceedings than was possible prior to its enactment. Its provisions provide a mechanism whereby a court can consider (and rely upon as part of its determination) material which cannot be disclosed on national security grounds (other than to the court, special advocate and, where relevant, the Secretary of State). It follows from the identification of a Haralambous CMP as a creature of common law that it cannot displace the specific statutory provisions enacted by Parliament to govern the protection and use in civil proceedings of “material the disclosure of which would be damaging to the interests of national security”.

The GHROA raised a further argument that the court should conclude that the only available option is a Haralambous CMP because the “second condition” identified in s.6(5) of the JSA 2013 is not met. The argument runs that the court should not conclude that it is “in the interests of the fair and effective administration of justice” to make a s.6 declaration because only a Haralambous CMP can mirror the protections of the 2005 Act and ensure that the material which was protected in the Green Hearings can be protected in a CMP in the present proceedings.

They submit that the inherent jurisdiction is “the great safety net which lies behind all statute law”: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, per Lord Donaldson MR at 13D (cited by the Supreme Court in T (A Child) [2021] UKSC 35, [2022] AC 723 at [67]. The inherent jurisdiction can be used to supplement a statutory scheme “to fill a gap or to avoid injustice” and to avoid harm (Tameside v AM [2021] EWHC 2472 (Fam), [50]; T (A Child), [67] and [145]).

In my judgment, caution needs to be exercised in relying upon case-law concerned with the inherent jurisdiction of the High Court with respect to children, which derives from the royal prerogative, as parens patriae, to take care of those who are not able to take care of themselves, in this very different context. In any event, as the GHROA acknowledge, the inherent jurisdiction cannot be used to contradict, cut across or displace the statutory regime.

In my judgment, any application to withhold material from disclosure to any party on the grounds its disclosure would be damaging to national security can only be made pursuant to the JSA 2013, and the court can only consider such “sensitive material” in accordance with the provisions of that Act and of CPR Part 82. As the Claimant has rightly identified, on proper analysis, it is not open to the court to choose to adopt a CMP pursuant to its inherent jurisdiction, instead of applying the bespoke statutory regime. At least where s.6 proceedings are available, “the JSA 2013 occupies the ground” (as Chamberlain J put it in Secretary of State for Defence v Persons Unknown, [22]).

The effect of the Defendant’s and the GHROA’s contention would be to displace the bespoke statutory regime with a common law procedure. The common law’s ability to replicate the statutory regime in a Haralambous CMP does not alter the position. In respect of national security material, the court is required to apply the statutory regime. If, in any proceedings, a JSA 2013 CMP would be contrary to the “fair and effective administration of justice in the proceedings”, the consequence would be that any “sensitive material” would be subject to the PII regime. It is not open to the court to decide that the definition Parliament chose to adopt in s.6(11) is too narrow for a JSA 2013 CMP to be fair and effective in respect of “sensitive material”, and then to consider that material in a Haralambous CMP.

If a CMP is employed in respect of “sensitive material”, it has to be pursuant to the JSA 2013, and that leaves open two possibilities in respect of non-national security sensitive material. Either such material can be considered in a CMP pursuant to the inherent jurisdiction, or it may be subject to PII. In CF v Security Service [2013] EWHC 3402 (QB), Irwin J noted that in restricting the ambit of the JSA 2013 to material affecting national security, Parliament has created problematic anomalies. But the JSA 2013 and the PII regime can and do co-exist. The co-existence of CMPs pursuant to two parallel jurisdictions, if permissible, would be less problematic, not least as the court could give directions replicating the statutory regime, so that it would, in effect, be a single CMP to which a single set of rules apply (albeit with different derivations).