Secretary of State for the Home Department v MB
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1140 |
| Docket Number | Case No: T1/2006/9501 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 August 2006 |
[2006] EWCA Civ 1140
The Lord Chief Justice of England and Wales
The Master of the Rolls and
The President of the Queen's Bench Division
Case No: T1/2006/9501
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
MR IAN BURNETT QC, MR PHILIP SALES, MR TIM EICKE & MS CECILIA IVIMY (instructed by the Treasury Solicitor)) for the Appellant
MR KEIR STARMER QC, MS KATE MARKUS & MR ALI BAJWA (instructed by Messrs Arani & Co)) for the Respondent
MR MICHAEL SUPPERSTONE QC AND MS JUDITH FARBEY (instructed by the Special Advocates Support Office) appeared as Special Advocates
LORD PHILLIPS, CJ :
This is the judgment of the court.
Introduction This is an appeal by the Secretary of State, with the permission of the judge, against an order made by Sullivan J on 17 May 2006. By that order he declared:
"Pursuant to section 4(2) of the Human Rights Act 1998 that the procedures in section 3 of the Prevention of Terrorism Act 2005, relating to the supervision by the Court of the non-derogating Control Orders made by the Secretary of State are incompatible with the Respondent's rights to a fair hearing under Article 6(1) of the European Convention on Human Rights"
The Secretary of State challenges this declaration of incompatibility.
The Prevention of Terrorism Act 2005 ('PTA') empowers the Secretary of State to make control orders that place obligations and restrictions on terrorist suspects. On 5 September 2005 he made a control order against the respondent MB. It is common ground that this control order interfered with MB's civil rights and that, if the PTA is to comply with the European Convention on Human Rights ('the Convention'), it must be possible for MB to challenge the validity of the control order by legal proceedings which satisfy the requirements of Article 6 of the Convention.
Section 3 of the PTA makes provision for supervision by the court of the type of control order made against the respondent. Section 3 requires the court, when performing this function, to consider whether any of the decisions of the Secretary of State in relation to the making of the control order and its content was flawed. In so doing the court is required to apply the principles applicable on an application for judicial review. The court is also required to follow a special procedure, involving closed material and the use of a Special Advocate, that is similar to the procedure applicable to proceedings before the Special Immigration Appeals Commission ('SIAC').
Before Sullivan J the debate focussed on the question of whether proceedings pursuant to section 3 of the PTA satisfied the requirements of Article 6. The debate did not extend to the significance of section 11 (2) of the PTA, which provides,
"The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a control order decision or derogation matter into question"
Astonishingly this provision was, it seems, overlooked both by counsel and the judge.
Before this court it seems unlikely that anything has been overlooked. We have had placed before us photocopies of some 150 authorities. Such an approach can make it more difficult to see the wood for the trees that have been sacrificed to provide the paper for the photocopying exercise.
The legislative scheme
The object of the PTA is apparent from the short title to the Act:
"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."
The PTA seeks to achieve this object by empowering the Secretary of State to impose control orders on those suspected of being terrorists. Section 1(1) defines a control order:
"In this Act 'control order' means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."
The PTA makes provision for two different types of control order. The more restrictive is a 'derogating control order'. This is a control order which imposes on the suspect one or more 'derogating obligations'. A derogating obligation is an obligation on an individual which 'is incompatible with his right to liberty under Article 5 of the Human Rights Convention' but which falls within the ambit of an order designating a derogation from the Convention pursuant to section 14(1) of the Human Rights Act 1998. No such order has been made and it is not suggested that the restrictions imposed by the control order against MB are incompatible with his rights under Article 5.
The other type of control order is one which is not incompatible with the suspect's rights under Article 5. This is described as a 'non-derogating control order'. The control order with which this appeal is concerned falls within this type. There is a stark contrast between the statutory regime which applies to non-derogating control orders and that which applies to derogating control orders. Sullivan J set out in his judgment the relevant statutory provisions and rules of court and we shall borrow freely from his judgment in repeating that exercise.
Section 2 of the PTA deals with the making of non-derogating control orders. Subsection (1) provides that:
"The Secretary of State may make a control order against an individual if he:
(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
"Terrorism-related activity" is defined in subsection 1(9) as any one or more of the following:
"(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
The obligations that may be imposed by a non-derogating control order are:
"… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity."
(see subsection 1(3)).
Subsection 1(4) sets out a lengthy list of obligations which may be included in a control order. We shall in due course set out the obligations in the control order made against MB. It is common ground that these fell within subsection 1(4) and that they were not incompatible with MB's Article 5 rights. Thus the control order made against MB was a non-derogating control order.
Subsection 1(9) provides:
"It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."
The court's supervisory role in relation to a non-derogating control order is set out in section 3 of the PTA. The relevant provisions are as follows:
"(1) The Secretary of State must not make a non-derogating control order against an individual except where—
(a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;
…
(2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and –
(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
(b) the court may give that permission unless it determines that the decision is obviously flawed; and
(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."
…
(5) The court may consider an application for permission under subsection (1)(a) …—
(a) in the absence of the individual in question;
(b) without his having been notified of the application or reference; and
(c) without his having been given an opportunity (if he was aware of the application or reference) of making an representations to the court;
but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.
…
(7) The directions given under subsection 2(c) … must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its...
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