Re the Secretary of State for Northern Ireland’s Application for Judicial Review

The decision provides guidance on the correct test to be applied by an appellate or reviewing court considering an assessment of the public interest by a first instance court (or coroner). If the first instance court has misidentified the public interest, then it has gone wrong in law and the appellate or reviewing court is required to correct the error. In doing so, it ought to form its own view on the merits, including as to where the overall public interest lies.

In judging the existence and extent of prejudice to an aspect of the public interest (e.g. in protecting national security), the appellate or reviewing court will work on the basis of the assessment made by the public authority asserting it, subject to its compliance with normal public law principles.

In the national security context, the Secretary of State has the democratic authority and institutional competence to make the relevant assessment. Further, the Secretary of State will usually be best placed to do so among other public authorities with an interest and expertise in national security (such as the police services), as they may act as the clearing house to draw upon, consider and weigh up the views of other relevant authorities (which may be in conflict).

Sir James Eadie KC, Jason Pobjoy KC and Grant Kynaston acted for the Secretary of State for Northern Ireland and four Interveners (the Home Secretary, the Advocate General of Northern Ireland, the Foreign Secretary, and the Defence Secretary).

The full judgment is available here. The Court's press summary is available here.