Emma Sutton KC has successfully acted as Advocate to the Court in the case of In the Matter of the Secretary of State for Defence [2026] EWCA Civ 3; one of 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]. The Court of Appeal was asked to determine the scope of judicial powers exercisable by the Judge in Charge of the Administrative Court to make directions/orders:

(1) Which extended beyond the particular case before the court;
(2) Related to future or other related litigation not yet commenced;
(3) (in the case of In the Matter of the SSD) Where there was no existing judicial review claim.

The appeals arose from orders made in the context of two policies operated by the UK Government in connection with UK operations in Afghanistan: the Afghan Relocations and Assistance Policy (‘ARAP’) and the Afghanistan Response Route (‘ARR’). The latter policy was passed in response to a data breach in February 2022, in which an MoD dataset containing personal information and contact details of persons who had applied for relocation to the UK from Afghanistan under ARAP had been compromised. The policies were considered necessary to protect individuals and their families from the risk of ill-treatment or death at the hands of the Taliban.

The appellants sought permission to appeal which was granted by Elisabeth Laing LJ. She required an Advocate to the Court to be appointed, and it was highlighted by the Court of Appeal in its judgment that “the role has been expertly performed by Ms Emma Sutton KC”

Key pointers

(1)   Know the limits of Administrative Court powers: the judgment clarifies that the court does not have (i) a supervisory power over executive policy (there are constitutional boundaries between the court’s powers and executive policy choices), or (ii) an inherent case management power over future claims.

(2)   Closed Material Procedure: the judgment reinforces the role and importance of Special Advocates and SASO in CMP cases where non-disclosure risks the right to a fair hearing, whilst emphasising that there must be a party to whom a Special Advocate is appointed to represent.

Background

In September 2023, the MoD obtained a super-injunction preventing disclosure of both the data breach, and the existence of the injunction itself (MOD v Global Media and Entertainment Limited and Others [2025] EWHC 1806 (Admin)).

The super-injunction prevented applicants from being informed of the breach and the increased risk it might have created for them. Consequently, a series of ARAP-related cases arose in which a CLOSED procedure was used to enable applicants to be represented by Special Advocates. It remained in place until 4 July 2025.

As Lord Justice Peter Jackson emphasised in the decision handed down on Thursday (8 January 2026), when granted, it was anticipated that the super-injunction would be necessary for 4 months. That it remained in force for almost two years was, he said, “an extraordinary departure from the principle of open justice”, justified only by the acute need to protect individuals named in the breach, and their families, from the risk of ill-treatment or death at the hands of the Taliban. He went on to stress that the scope and duration of the super-injunction, which prevented all public scrutiny of these proceedings, meant that “the duty of candour owed by the public authorities towards the court and the other parties was of exceptional importance; moreover, that the court had to be especially vigilant to ensure that there were no further encroachments on the fair hearing rights of the other parties”. (at [5]).

In March 2024, the Secretary of State for Defence proposed a new route for the relocation of high profile individuals, however this was declared unlawful by the Divisional Court in R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892 (‘CX1’). The Secretary of State for Defence responded by developing the ARR policy in April 2024, and corresponded with the court to ensure it complied with the decision in CX1.

In July 2024 the revised approach regarding complex cases was approved. Some months later, while hearing two linked judicial review claims brought by HR, an unsuccessful ARAP applicant, Swift J became aware of the ARR policy and ordered the Secretary of State for Defence to provide a note explaining what steps had been taken to amend the policy statement following the decision in CX1. Not content with the response received, Swift J listed a closed hearing on 25 October 2024 under the title ‘In the matter of the Secretary of State for Defence, Listed by the Court of its own motion’.

During this hearing, the judge expressed considerable concern about what he considered was the extensive delay in amending the ARR policy in line with CX1. He made a mandatory order requiring the Ministers to update and operate its policy in line with the decision in CX1, and to require that any future policy changes be reported to the Special Advocates’ Support Office (‘SASO’) and the Judge in Charge.

–

The appeals

Eight grounds of appeal were submitted in ‘In the matter of the Secretary of State for Defence’. The thrust was that the judge had exceeded the jurisdiction of the Hight Court both in purporting to exercise functions that rest with the Executive, and in making an order that attempted to bind a person who was not before the Court, and where there was no existing litigation in which an order could be made. It was further submitted that it exceeded the High Court’s power to make an order requiring service of material on SASO, when there was no party whom a Special Advocate could represent, and therefore no role for SASO. It was also procedurally unfair to the Secretary of State in the manner in which it was heard.

The Court of Appeal considered that these appeals “engaged two fundamental legal principles. The first concerns the extent of judges’ powers and the second concerns the constitutional position of the judiciary in relation to the executive” (at [53]). On the first, while the court emphasised that “judges in our system, whatever their roles, decide the cases that are listed before them”, it recognised that “there are circumstances in which the impact of a decision in an individual case will extend beyond the parties themselves” (at [54]). The court explained the various mechanism by which the court, or individual judges, can bind the world at large (such as via reporting restrictions) or provide guidance (such as the issuing of formal Practice Guidance).

On the constitutional question, the Court of Appeal was unequivocal in stating that “under our system of separation of powers, judges do not make policy” (at [58]). The court may be called upon to identify whether a policy is lawful, but it does not and should not write the policy itself. On this basis, the quashing order made by the High Court in CX1 was lawful and legitimate, while the mandatory order made by Swift J in ‘In the matter of the Secretary of State for Defence’ was not. It had crossed “the constitutional boundary” (at [58]), as was submitted by Emma as Advocate to the Court.

In ‘In the matter of the Secretary of State for Defence’, the appeal succeeded on several grounds. The mandatory order was held to have “transgressed a fundamental boundary between the role of the court and the role of the executive”, while the “strictures” in relation to SASO were also accepted as well-founded. The unprecedented nature of the order meant that the process was “less than fair”.

The Court of Appeal was at pains to recognise the good intentions behind the orders, stating “As Judge in Charge of the Administrative Court, the judge was centrally concerned with this endeavour and we strongly endorse his commitment to upholding the overriding objective of dealing justly with these extremely sensitive cases.” Ultimately, however, it was held that all three orders, “though made with the best of motives”, were unlawful as Swift J had gone beyond the court’s powers.

Imogen Goold

12 January 2026