Section 79.26

Where the appropriate Minister applies in accordance with rule 79.25 for permission to withhold closed material the court will fix a hearing for the appropriate Minister and the special advocate to make oral representations, unless— the special advocate gives notice to the court that the special advocate does not challenge the application; the court— has previously considered an application for permission to withhold the same or substantially the same material; and is satisfied that it would be just to give permission without a hearing; or the appropriate Minister and the special advocate consent to the court deciding the issue without a hearing. If the special advocate does not challenge the application, the special advocate must give notice of that fact to the court and to the appropriate Minister— within 14 days after the appropriate Minister serves on the special advocate the material under rule 79.25(2); or within such other period as the court may direct. Where the court fixes a hearing under paragraph (1)— the special advocate may file with the court and serve on the appropriate Minister a reply to the appropriate Minister’s application; the appropriate Minister may file with the court and serve on the special advocate a response to the special advocate’s reply; and the appropriate Minister and the special advocate must file with the court at least 7 days before the hearing a schedule identifying the issues which cannot be agreed between them and which must— give brief reasons for their contentions on each issue in dispute; and set out any proposals for the court to resolve the issues in dispute. A hearing under this rule must take place in the absence of the specially represented party and that party’s legal representative. The court will give permission to the appropriate Minister to withhold closed material where it considers that disclosure of that material would be contrary to the public interest. Where the court gives permission to the appropriate Minister to withhold closed material, the court will— consider whether to direct the appropriate Minister to serve a summary of that material on the specially represented party or that party’s legal representative; but ensure that such a summary does not contain material, the disclosure of which would be contrary to the public interest. Where the court does not give permission to the appropriate Minister to withhold closed material from, or directs the appropriate Minister to serve a summary of that material on, the specially represented party or that party’s legal representative— the appropriate Minister is not required to serve that material or summary; but if the appropriate Minister does not do so, at a hearing on notice, the court may— where it considers that the material or anything that is required to be summarised might adversely affect the appropriate Minister’s case or supports the case of the specially represented party, direct that the appropriate Minister must not rely on such material in the appropriate Minister’s case, or must make such concessions or take such other steps, as the court may specify; or in any other case, direct that the appropriate Minister does not rely on the material or (as the case may be) on that which is required to be summarised.

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Source: legislation.gov.uk · retrieved 2026-08-15