Secretary of State for the Home Department v MB [House of Lords

In a judgment given on 28 June 2006 Sullivan J held that obligations imposed on the respondents in control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 deprived the respondents of their liberty in breach of article 5 of the European Convention on Human Rights and that the orders should be quashed: [2006] EWHC 1623 (Admin). The Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) dismissed the Secretary of State's appeal against that decision on 1 August 2006: [2006] EWCA Civ 1141, [2007] QB 446. On this appeal to the House the Secretary of State challenges both limbs of the decisions below, contending that the obligations imposed on the respondents did not deprive them of their liberty and that, if they did, the orders should have been modified and not quashed.

This is one of four appeals heard by the House together. The facts of the four appeals are different. Some issues are common to more than one appeal, and some are not. Separate judgments were given below at first instance and (in three of the appeals) by the Court of Appeal. It is convenient to give separate judgments in this appeal, in the appeal involving E, and in the appeals involving AF and MB, making such cross-reference as is necessary to avoid repetition.

There are six respondents, to whom I shall refer as "the controlled persons" save where it is necessary to distinguish between them. Five of the controlled persons are Iraqi nationals. The sixth (LL, who has absconded and is not represented in this appeal) is either an Iraqi or an Iranian national. Three have leave to remain in this country and three have temporary admission. All are suspected by the Secretary of State to have been involved in terrorism-related activities and are assessed to pose a threat to the public within the United Kingdom or overseas. None has been charged with or prosecuted for any offence related to terrorism.

The Prevention of Terrorism Act 2005 was enacted on 11 March 2005. It repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001, including section 23, which the House had found to be incompatible with articles 5 and 14 of the Convention in A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68. The purpose of the 2005 Act, as expressed in the long title, was "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." At the forefront of his argument the Secretary of State stresses the grave threat presented to the public by the criminal activity of terrorists; the imperative duty of democratic governments to do what can lawfully be done to protect the public against that threat; and the balance inherent in the European Convention between the rights of individuals and the rights of the community as a whole. These considerations provide the important backdrop to these appeals, but they need not be elaborated since they are not controversial.

As will be seen in paragraph 7 below, the 2005 Act is drafted with express reference to article 5 of the European Convention. Article 5 provides that "Everyone has the right to liberty and security of person". The article continues: "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law". There follows a list ((a) to (f)) of cases in which a person may be deprived of his liberty in accordance with a procedure prescribed by law. The cases listed are those in which any democratic state is likely to exercise a power to detain: on sentence following conviction, breach of a court order, arrest on suspicion of crime, infectious disease, mental illness, unlawful entry, pending action to deport or extradite, and so on. This list, as the European Court of Human Rights has repeatedly emphasised, is exhaustive and is to be narrowly interpreted (see, for instance, Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 57; Kurt v Turkey (1998) 27 EHRR 373, para 122; Mancini v Italy (App no 44955/98, 12 December 2001), para 23. This reflects the importance attached by the Convention to the right to liberty and security. Thus a person may not be deprived of his liberty unless his case falls within one of the listed classes of case. That proposition, however, is subject to one qualification. By article 15 of the Convention, given domestic effect by sections 14 and 16 of the Human Rights Act 1998, a state party to the Convention may derogate from article 5, subject to certain formalities, "[1] in time of war or other public emergency threatening the life of the nation … to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law". It is common ground that none of the cases subject to this appeal fall within any of the categories listed in (a) to (f) of article 5 of the Convention, and the United Kingdom has not derogated from its obligation to comply with that article. It necessarily follows that if, as the controlled persons (with the support of Justice) contend and the Secretary of State strongly denies, the effect of the obligations imposed on the controlled persons under the control orders is to deprive them of their liberty, such orders are inconsistent with article 5 of the Convention.

The 2005 Act

The core of the 2005 Act is found in section 1. Subsection (1) defines a control order as meaning "an order made against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism". Subsection (4) specifies the obligations which a control order "may include, in particular". It is not therefore an exclusive list. But it is a detailed list, containing sixteen potential obligations running from (a) to (p). It is unnecessary to recite the full list. Among the listed obligations are: "(d) a restriction on his association or communications with specified persons or with other persons generally; (e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence; (f) a prohibition on his being at specified places or within a specified area at specified times or on specified days; (g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom; (j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access; (k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened; …". A person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence punishable, on conviction on indictment to imprisonment for a term of up to five years (s.9(1) and (4)(a)).

The Act draws a categorical distinction between what it calls a "derogating control order" and what it calls a "non-derogating control order". The former is defined in section 15(1) to mean "a control order imposing obligations that are or include derogating obligations" and a "derogating obligation" is defined in section 1(10) to mean "an obligation on an individual which - (a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but (b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order." A "non-derogating control order" is defined in section 15(1) to mean "a control order made by the Secretary of State": it is one that does not consist of or include derogating obligations. Thus the premise of the Act is that control orders made under section 1 of the Act and including obligations within the scope of section 1(4) may, or of course may not, be incompatible with the controlled person's right to liberty under article 5 of the Convention.

The power to make a control order against an individual, in the case of an order imposing obligations that are or include derogating obligations, is exercisable by the court on an application by the Secretary of State (s.1(2)(b)); save where the order imposes obligations that are incompatible with the individual's right to liberty under article 5, the power is exercisable by the Secretary of State (s.1(2)(a)), with the permission of the court (s.3(1)(a)) save where the urgency of the case requires an order to be made without permission (s.3(1)(b)). In each case there is a preliminary hearing by the court, but...