Limits on Cross-Case “General Directions” and Judicially-Mandated Executive Policy in Closed Proceedings

1. Introduction

RA & Anor, R (On the Application Of) v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] EWCA Civ 3 arose from litigation linked to two Afghanistan relocation schemes: the Afghan Relocations and Assistance Policy (“ARAP”) and the Afghanistan Response Route (“ARR”). An MoD data breach (kept secret for almost two years under a super-injunction) created an unprecedented environment: heavy reliance on closed material procedure (“CMP”) under section 8 of the Justice and Security Act 2013, Special Advocates, and heightened judicial concern about candour and fairness in secret proceedings.

The Court of Appeal considered three High Court orders made by Swift J: (i) two “general directions” in ARAP-related CMP cases requiring senior-official witness statements for any timetable-variation applications across a class of cases; and (ii) a further order (made outside any subsisting proceedings) mandating changes to internal ARR policy documentation and requiring service and ongoing notification to the Special Advocates’ Support Office (“SASO”) and filing with the Administrative Court (Judge in Charge).

The key issues were constitutional and jurisdictional: the limits of judicial case-management powers and inherent jurisdiction, the separation of powers when courts interact with executive policy, and the role of SASO/Special Advocates in closed litigation.

2. Summary of the Judgment

The Court of Appeal allowed all appeals and set aside each challenged order. It held that:

• A High Court judge’s case-management powers under the CPR are directed to the case before the court, and do not extend to making “general directions” intended to have direct effect in other existing cases before other judges, still less future claims not yet issued.
• The High Court exceeded its jurisdiction by making a mandatory order that effectively dictated executive policy content and operation (even if aligned with an earlier finding of unlawfulness), thereby crossing a separation-of-powers boundary.
• The ARR order’s requirements involving SASO misconceived SASO’s institutional function; SASO is not an information-sharing hub for Special Advocates.
• The procedure adopted for the ARR order was unfair: the Secretary of State had no advance notice of the specific orders the judge intended to make.

While emphasising the abnormality and seriousness of the data breach and the secrecy regime, the Court concluded that the orders, “though made with the best of motives”, went beyond lawful judicial power.

3. Analysis

3.1 Precedents Cited

(a) The secrecy context: open justice and the super-injunction

Ministry of Defence v Global Media and Entertainment Limited and others [2025] EWHC 1806 (Admin) was central background: it records the extraordinary super-injunction preventing disclosure of both the data breach and the injunction itself. The Court of Appeal treated the secrecy context as heightening the importance of the duty of candour and judicial vigilance—yet not as expanding jurisdiction.

(b) The ARR policy unlawfulness and remedial boundaries

R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892 ('CX1') had found the ARR cohort-based approach unlawful insofar as it excluded individuals at equivalent risk, and directed reconsideration. Swift J’s later “In the matter of…” order attempted to implement CX1 by mandating an internal policy amendment and creating notification duties. The Court of Appeal accepted the judge’s objective (ensuring compliance with CX1) but held the chosen mechanism transgressed constitutional limits.

The Court noted that the executive’s complex-case approach had been approved and applied in subsequent closed cases, including R (QP1) v Secretary of State for Defence [2024] EWHC 1905, upheld by [2025] EWCA Civ 825, undermining any necessity for the court to become the “primary actor” by dictating policy text.

(c) Inherent jurisdiction and its limits

The respondents relied on Connelly v DPP [1964] AC 1254; [1964] 2 All ER 401; [1964] 2 WLR 1145 for the proposition that courts possess inherent powers necessary to act effectively within their jurisdiction and prevent abuse. The Court of Appeal treated Connelly as illustrating the existence of inherent powers, but not as authority for prospective, class-wide directions across other litigation.

Raja v Van Hoogstraten (No 9); Tombstone v Raja and Another [2008] EWCA Civ 1444; [2009] 1 WLR 1143 was cited to emphasise that inherent jurisdiction can supplement the CPR but cannot cut across the rules’ scheme or create inconsistent procedures. This supported the Court’s conclusion that case-management powers remain case-bound.

Serious Fraud Office v Litigation Capital Ltd [2020] EWHC 1280 (Comm) (obiter) was invoked as an example where notification/barring orders affected non-parties and future litigation in an asset-distribution context. The Court of Appeal found such authorities of limited assistance, stressing instead the absence of any precedent for an order designed to have direct operative effect in other cases before other judges, outside established procedural frameworks.

(d) Procedural frameworks that legitimately extend beyond a single claim

The Court contrasted the impugned “general direction” with established mechanisms:

• Group litigation orders and related management examples: Society of Lloyd's v Jaffray [2002] EWCA Civ 1101; Serious Fraud Office & Ors vs Litigation Capital Limited & Ors [2021] EWHC 1272 (Comm).
• Orders binding non-parties or “newcomers” in specific contexts: Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] AC 983; [2024] 2 WLR 45; [2024] 2 All ER 431.

These cases served to show that where the system intends cross-case or broader effects, it provides structured routes—unlike an ad hoc “general direction” in one judicial review claim.

(e) Judicial review remedies and separation of powers

The Court anchored remedial principle in R (Imam) (Respondent) v London Borough of Croydon [2023] UKSC 45; [2025] AC 335; [2023] 3 WLR 1178; [2024] 2 All ER 93, emphasising that a mandatory order makes the court “the primary actor” and can undermine a public authority’s capacity to fulfil statutory functions. This supported the Court’s view that dictating policy text, even to reflect CX1, “almost certainly” crossed the constitutional boundary.

The Court also recalled Lord Scarman’s warning in R v Secretary of State for the Environment, Ex p Nottinghamshire County Council [1986] AC 240; [1986] 2 WLR 1; [1986] 1 All ER 199 about observing constitutional limits in judicial review.

(f) Functus officio in judicial review

In addressing whether the HR proceedings could have been used as a vehicle, the Court referred to R (ECPAT UK) v Kent County Council and others [2023] EWHC 2199 (Admin) at [11] on the normal position that, after determining issues and granting relief, the court is functus officio. This reinforced the caution against courts creating ongoing supervisory roles outside recognised structures.

(g) The nature and limits of SASO and Special Advocates

On the “In the matter of…” order, the Advocate to the Court relied on Home Office v Tariq [2011] UKSC 35; [2011] IRLR 843; [2012] 1 AC 452; [2012] 1 All ER 58 to explain SASO’s structure and purpose. The Court accepted that SASO supports Special Advocates appointed in particular cases; it is not a general repository or distribution hub for closed policies across the system. That undermined the lawfulness and practicality of orders requiring service of evolving policy on SASO absent any extant case needing it.

3.2 Legal Reasoning

(a) Case-management powers are case-specific

The Court rejected reliance on CPR 1.1, 1.4, 3.1(2)(p) and CPR 23.6 as a foundation for cross-case directions. It drew a clear line: the CPR’s overriding objective and active case management are framed around the management of “the case” before the court. The absence of any “established procedure” for a judge in one case to make an order intended to have direct effect in another case was treated as decisive, especially given the risk of interfering with other judges’ conduct of other proceedings.

(b) Inherent jurisdiction cannot create an ad hoc cross-litigation regime

Even accepting the High Court’s inherent jurisdiction, the Court held it could not be used to invent a prospective, class-wide affidavit obligation across separate proceedings. The problem was not merely novelty but a jurisdictional mismatch: the judge was not regulating abuse or process within a single proceeding, but attempting to regulate the future conduct of the executive across a category of cases.

(c) Separation of powers and remedies: courts review policy but do not write it

The Court treated the “In the matter of…” order as constitutionally impermissible because it required ministers to adopt and operationalise a specified policy formulation. Quashing a policy (as in CX1) stays within orthodox judicial review; mandating policy text and circulation mechanisms “almost certainly” crosses the line by turning the court into the primary actor in governance.

(d) Procedural fairness

The Court found unfairness because the Secretary of State had no advance notice of the specific mandatory directions the judge intended to impose. Given their unusual (and arguably unprecedented) nature, fairness required a proper opportunity to address the proposed terms before they were ordered.

(e) The Court’s constructive alternatives

Importantly, the Court did not minimise the underlying risks (data breach; secrecy; heightened duty of candour). It suggested lawful alternatives:

• In the ARAP CMP cases, make a discrete order within the case, accompanied by a closed judgment stating an expectation—grounded in the duty of candour—that ministers would draw that order to the court’s attention when seeking extensions in other ARAP data-breach litigation, leaving other judges to decide appropriate steps.
• On ARR policy delay, direct the closed judgment to be drawn to the personal attention of responsible Ministers, communicating the seriousness of concern without dictating policy text or creating an institutional reporting pipeline to SASO.

3.3 Impact

This decision is likely to be cited for three practical propositions:

1. No “general directions” across other proceedings absent a recognised framework. Even in highly unusual contexts (CMP, secrecy, systemic administrative failure), case-management powers remain tied to the case before the court.
2. Clear remedial restraint where policy is concerned. Courts may identify unlawfulness and quash, but must be slow to grant mandatory relief that dictates policy formulation—especially at national level—because of separation-of-powers concerns.
3. Institutional clarity in closed justice. SASO supports Special Advocates in particular cases; it is not a standing conduit for executive policy updates. Courts should avoid orders that effectively convert SASO (or Special Advocates) into a system-wide supervisory mechanism.

More broadly, the judgment will influence how courts respond to systemic disclosure/candour failures in closed proceedings: the answer lies in robust orders within the case, careful articulation of expectations, and (where appropriate) reporting mechanisms that respect existing procedural architectures—rather than cross-case directives.

4. Complex Concepts Simplified

• Closed Material Procedure (CMP): A process (here under section 8 of the Justice and Security Act 2013) allowing the court to consider sensitive national-security material in “closed” session. The affected party and their open lawyers cannot see the closed material.
• Special Advocates / SASO: Special Advocates are security-cleared counsel appointed to represent an excluded party’s interests in closed proceedings. SASO is the support office that assists Special Advocates; it is not an independent litigant or a general disclosure hub.
• Super-injunction: An injunction preventing publication of specified information and preventing disclosure that the injunction exists. Here it prevented public scrutiny and increased the importance of governmental candour to the court.
• Duty of candour: The heightened obligation on public authorities in judicial review to put before the court full and accurate explanations, including on procedural matters like extensions of time—especially acute where secrecy prevents normal scrutiny.
• Quashing order vs mandatory order: A quashing order sets aside an unlawful decision/policy and requires it to be reconsidered lawfully. A mandatory order compels a public body to do a specific act; it is more intrusive and raises stronger separation-of-powers concerns.
• Functus officio: The general principle that once a court has finally disposed of a judicial review and granted appropriate relief, it normally has no continuing role in supervising the matter.

5. Conclusion

[2026] EWCA Civ 3 reasserts foundational constitutional and procedural boundaries in an extreme factual setting. The Court endorsed the High Court’s concern for fairness and candour in secrecy-heavy Afghanistan relocation litigation, but held that: (i) case-management powers cannot be used to impose operative obligations across other cases or future claims; and (ii) courts must not become policymakers by mandating policy text and circulation mechanisms, particularly outside subsisting proceedings and without fair notice. The decision provides a durable template: respond to systemic risks through robust, case-tied orders and principled judicial communication—without creating new cross-case regimes or executive-policy mandates by judicial fiat.