The Court of Appeal has handed down judgment in three joined appeals brought by the Defence Secretary, Foreign Secretary and Home Secretary: RA and AA v SSFCDA, MZZ v SSD and SSHD and In the Matter of the SSD [2026] EWCA Civ 3 (link). The appeals concerned the powers of the Judge in Charge of the Administrative Court to make directions over cases being heard by other judges and future litigation not yet commenced. The Court of Appeal also considered the respective role of the judiciary and executive and the responsibilities of Special Advocates and the Special Advocates’ Support Office (SASO).
The appeals arose from the Government’s well-known Afghan Relocations and Assistance Policy (ARAP) and its Afghanistan Response Route (ARR), a separate, unpublicised, policy which was established following the 2022 MOD data breach and subsequent contra mundum super-injunction (see: MOD v Global Media and Entertainment Limited and Others [2025] EWHC 1806 (Admin).
From late 2023 onwards, the MOD disclosed the fact of the data breach and the Government’s response within closed material proceedings in existing ARAP cases, where claimants were potentially affected. In that context, the Judge (Swift J) became dissatisfied with MOD’s conduct of litigation and made a ‘general direction’ in January 2024 requiring any application for an extension of time in such cases to be supported by a witness statement from a civil servant of suitable seniority.
Subsequently, in October 2024, the Judge (by then no longer Judge in Charge) was hearing a CLOSED permission application in another ARAP case (‘HR’). He became concerned that the MOD had not updated aspects of its ARR policy, following the CLOSED judgment of the Divisional Court in R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892. He listed a CLOSED hearing on the Court’s own initiative and required counsel for the Secretary of State and instructing officials to attend, with the hearing on notice to SASO and ultimately attended by HR’s Special Advocate. At the hearing, he ordered the Secretary of State to amend the ARR policy in specified terms and to serve an updated policy on SASO with a copy filed for the attention of the Judge in Charge.
Allowing the appeals, Peter Jackson, Elisabeth Laing and Jeremey Baker LJJ held that even in the exceptional circumstances of the data breach of the super-injunction, the judge had exceeded his powers.
It was clear from the terms of the CPR (including rr.1.1(1) and 3.1.(2) that the courts’ case management powers relate to the management of individual cases and that there is no established procedure by which a judge presiding over one case can make an order intended to have direct effect in another case. It was telling that there was no real precedent for such orders, nor for orders made prospectively in relation to claims that had not yet been issued.
Furthermore policy-making is the responsibility of the executive. The court may be called upon to identify whether a policy is lawful, but it does not write policy itself. Making a quashing order (as occurred in CX1) crosses no constitutional boundary, but making a mandatory order in this context almost certainly did. In any event, the court had to have regard to a range of considerations when considering the choice of remedy, per Lord Sales in R (Imam) (Respondent) v London Borough of Croydon [2023] UKSC 45.
Arrangements for a hearing under the Court’s own motion In the Matter of the SSD had been less than fair to the Secretary of State. And the Judge was wrong to treat SASO as a separate entity, or hub, rather than an as an organisation providing assistance to individual Special Advocates in individual cases (most of whom would have no legitimate reason to see a new ARR policy).
John Bethell was instructed in the appeals with Cathryn McGahey KC, by the Government Legal Department. John did not appear at first instance but acted for the MOD throughout the super-injunction proceedings, 2023-2025, and (in CLOSED) in CX1.
