COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MITTING J and (SILBER J)
REF NO: PTA/33/2006, PTA/4/2007, PTA/23/2008, PTA/13/2009
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE RIX
LORD JUSTICE STANLEY BURNTON
| (1) AN
|Secretary of State for the Home Department
|(2) Secretary of State for the Home Department
|- and -
|AE and AF
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Mr Timothy Otty QC and Mr Ali Naseem Bajwa (instructed by Chambers) for AE
Mr Timothy Otty QC, Mr Zubair Ahmad and Mr Tom Hickman (instructed by Middleweeks) for AF
Mr James Eadie QC, Mr Tim Eicke and Mr Paul Greatorex (instructed by Treasury Solicitors) for the Secretary of State
Hearing date : 21 May 2010
Crown Copyright ©
Lord Justice Maurice Kay :
The principal statutory provisions
"(a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and
(b) in the case of an order imposing obligations that are in or include derogating obligations, by the court on the application of the Secretary of State."
"(1) 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.
(3) A control order made by the Secretary of State is called a non-derogating control order."
"(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 that order and has been granted that permission;
(b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission; or
(c) [not material]
(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."
"(10) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
(b) his decisions on the imposition of each of the obligations imposed by the order.
(11) In determining –
(a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or
(b) the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review.
(12) If the court determines … that a decision of the Secretary of State was flawed, its only powers are –
(a) power to quash the order;
(b) power to quash one or more obligations imposed by the order; and
(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(13) In every other case the court must decide that the control order is to continue in force."
AN: the judgment of Mitting J
"If I had been persuaded that the order was a nullity, I agree that it would have to be quashed, like the order which the Secretary of State had no power to make in Secretary of State v JJ  UKHL 45 … Article 6 applies to 'control order proceedings': see Lord Bingham's summary of the Secretary of State's concession in MB at paragraph 15. Whether or not the procedure used has involved significant injustice to the controlled person must be determined by looking at the process as a whole: paragraph 35. The making of the order by the Secretary of State is part of that process. But it is the Court which determines, when granting or withholding permission to make the order under section 3(2), whether the decision of the Secretary of State is obviously flawed. The obligation to disclose or gist to the controlled person the essence of the case only arises at the stage when the Secretary of State's decisions are reviewed under section 3(10). Subject to the qualification made below, when the Secretary of State decides to apply for permission to make the order and makes it, he is not inhibited from relying on closed material which, in due course, he may elect to withdraw rather than to disclose or gist. Further, when the Secretary of State decided to make the order it was reasonable to suppose that she would be permitted to rely on the closed material without gisting or disclosing it [because of her reasonable understanding of what the law was, prior to later decisions of the House of Lords] … On the principle that a decision of a properly constituted Court on an issue within its jurisdiction is binding unless and until set aside, [the submission on behalf of AN] is untenable. I am satisfied that both elements of the proceedings at the inception of the control order (Collins J's permission, and the Minister's decision, to make the order) were lawful and that neither was a nullity. Taken together, that stage of the proceedings cannot be so described. It follows that I am not required by ordinary judicial review principles to quash the order."
AE and AF: the judgment of Silber J
(1) he construed the speeches of Baroness Hale and Lord Bingham in Secretary of State for the Home Department v MB and AF  1 AC 440 as requiring that result;
(2) he considered that the approach of Lord Hope (with whom Lord Scott agreed) in AF(No.3) was to like effect;
(3) a "particularly important" reason was the "landmark decision on natural justice" of Ridge v Baldwin  AC 40;
(4) anything less than quashing ab initio would make the controlees' Article 6 rights, as explained in AF(No.3), ineffectively secured; and
(5) "if the Secretary of State had at any time during the life of any of the control orders been obliged to comply with the disclosure obligations in accordance with what was eventually decided in AF(No.3) by disclosing to the controlees the essence of the case against them, he would have refused as he actually did after the House of Lords had reached its decision". (Paragraph 79).
"The quashing of the whole order under section 3(12)(a) should be reserved for cases where it was clear that none of the obligations could be justified, or where the Secretary of State failed to establish the factual basis of his evaluation of terrorist-related activity or qualifying risk."
"An administrative order made without power to make it is, on well known principles, a nullity … It is true that, because public law remedies are generally discretionary, the court may in special circumstances decline to quash an order, despite finding it to be a nullity … But no such circumstances exist here, and it would be contrary to principle to decline to quash an order, made without power to make it, which had unlawfully deprived a person of his liberty."
"Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed … But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed."
"The difficulties that less than full disclosure gives rise to must be counterbalanced in such a way that the controlled person has the possibility effectively to challenge the allegations made against him. If that cannot be done, the judge must exercise the power that he is given by section 3(12) … and quash the control order."
(1) The statutory role of the Secretary of State
(2) An administrative act
(3) The reasonableness and good faith of the Secretary of State
"… when the Secretary of State decided to make the order it was reasonable to suppose that she would be permitted to rely on the closed material without gisting or disclosing it."
(4) The fallacy
(5) Section 3(12)(c)
"If, following the clarification of the law in AF(No.3), when applying for permission, the Secretary of State intended not to disclose or gist the material, it may be an abuse of the court's process to make the application. What the Secretary of State would have done would have been to apply for permission to make a control order which he had no intention of seeking to sustain at the section 3(10) review. In those circumstances, it may well be right to quash the order."
"the Secretary of State would not have made any of the control orders against any of the controlees if he had appreciated the nature and extent of the disclosure of closed evidence which was required by AF(No.3)."
"In Eshugbayi Eleko v Officer Administering the Government of Nigeria  AC 662, a habeas corpus case, Lord Atkin observed, at p.670, that 'no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice'. Recently, with the approval of the other members of the House, I cited Lord Atkin's observations in the Eleko case: Boddington v British Transport Police  2 AC 143, 173F. It represents the traditional common law view."
Lord Justice Rix:
Lord Justice Stanley Burnton: