Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents)
20. The obligations imposed on the controlled persons by the non-derogating control orders made by the Secretary of State in each of their respective cases were in more or less standard form. Lord Carlile of Berriew QC, the independent reviewer appointed under section 14 of the Act, annexed to his First Report a pro forma of the schedule of obligations "imposed on most but not quite all of the controlees so far" (report, para 42), and Sullivan J annexed to his judgment a list, in almost identical terms, of the obligations imposed on the controlled persons in this case. An obligation was imposed under almost all the heads specifically identified in the paragraphs of section 1(4) of the Act, and some under heads not so identified. The general effect of the obligations was helpfully summarised by the Court of Appeal in paragraph 4 of its judgment :
It may be added that the controlled persons were required to wear an electronic tag and to report to a monitoring company on first leaving their flat after a curfew period and on returning to it before a curfew period. They were forbidden to use or possess any communications equipment of any kind save for one fixed telephone line in their flat maintained by the monitoring company. They could attend a mosque of their choice if it was in their permitted area and approved in advance by the Home Office. Some of the controlled persons are not permitted, because of their immigration status, to work; those who are permitted have not done so in the six hour period between 10am and 4pm. They received benefits of £30-£35 per week, mostly in vouchers, but in JJ's case £57.45. A request by JJ to study English at a college outside his area was refused.
21. In the course of a careful and detailed judgment Sullivan J reviewed the authorities mentioned above, and other authorities: in particular Secretary of State for the Home Department v Mental Health Review Tribunal (PH)  EWCA Civ 1868 (Court of Appeal, 19 December 2002), where attention is drawn to the significance of the purpose for which restrictions are imposed, distinguishing between those which are for the benefit of the subject and those which are for some other purpose. He regarded the orders made in these cases, although in force for only twelve months at a time, as of indefinite duration (para 48). He confined himself to facts which were agreed or were apparent on the face of the control orders (paras 57-58). He took as his starting point the confinement of the controlled persons for 18 hours each day of the week in a small flat where (save in the case of GG) they had not previously lived in a significantly different location (paras 60-62). He noted that the controlled persons were all single men, and accepted that the requirement to supply the name, address, date of birth and photographic identification to obtain prior Home Office approval of anyone wishing to visit the flat for social purposes during curfew hours deterred all but the most courageous of visitors (para 66). He expressed his conclusion in paragraph 73 of his judgment :
He regarded the controlled persons' concrete situation (para 74) as the antithesis of liberty and more akin to detention in an open prison.
22. At the outset of his judgment (para 3) the judge had noted Lord Carlile's description of the proforma obligations as "On any view extremely restrictive They fall not very far short of house arrest, and certainly inhibit normal life considerably." He found reassurance for his conclusion in the observations of the House of Lords and House of Commons Joint Committee on Human Rights in their Twelfth Report of Session 2005-2006 (HL Paper 122, HC 915), para 38, addressing the proforma obligations without reference to any specific case :
The judge also noted (para 82) the recognition by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human Rights, in paragraph 17 his report (8 June 2005) of a visit to the United Kingdom, of the difficulty under the 2005 Act of distinguishing between derogating and non-derogating obligations :
23. On his appeal to the Court of Appeal the Secretary of State contended, as he was bound to do, that the judge had erred in law. He identified (para 7 of the Court of Appeal judgment) five errors of principle : that the judge had identified liberty too broadly, as freedom to do as one wishes; that he had wrongly had regard to the extent to which the obligations interfered with "normal life"; that he had wrongly had regard to restrictions on human rights protected by other specific articles of the Convention; that he had extended the meaning of liberty beyond that laid down in Guzzardi; and that he had concentrated excessively on the individual features of the idiosyncratic cases. The Court of Appeal reviewed these criticisms seriatim, but found no merit in any of them. The judge had clearly and correctly taken the confinement of the controlled persons to a small flat for 18 hours a day as his starting point (para 11). He had properly had regard to other features of a régime at the heart of which was physical confinement (para 19). At the end of the day the judge had to make a value judgment as to whether, having regard to the "the type, duration, effects and manner of implementation" of the control orders, they effected a deprivation of liberty (para 22). The judge's appraisal of the likely duration of the orders, although based on a false premise, was realistic (ibid). The Court of Appeal shared the judge's view that the facts of these cases clearly fell on the wrong side of the dividing line and amounted to a deprivation of liberty contrary to article 5 (para 23).
24. The Secretary of State's argument on appeal, presented with skill and moderation, repeated, no doubt inevitably, the contentions advanced to and rejected by the Court of Appeal. It is unnecessary to rehearse them since they cannot in my opinion survive a careful reading of the judge's judgment and I would reject them for the reasons which the Court of Appeal gave. No legal error in the reasoning of the judge or the Court of Appeal is shown, and it is not for the House to make a value judgment of its own. I would, however, add that on the agreed facts of these individual cases I would have reached the same conclusion. The effect of the 18-hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for self-entertainment and with knowledge that their flats were liable to be entered and searched at any time. The area open to them during their six non-curfew hours was unobjectionable in size, much larger than that open to Mr Guzzardi. But they were (save for GG) located in an unfamiliar area where they had no family, friends or contacts, and which was no doubt chosen for that reason. The requirement to obtain prior Home Office clearance of any social meeting outside the flat in practice isolated the controlled persons during the non-curfew hours also. Their lives were wholly regulated by the Home Office, as a prisoner's would be, although breaches were much more severely punishable. The judge's analogy with detention in an open prison was apt, save that the controlled persons did not enjoy the association with others and the access to entertainment facilities which a prisoner in an open prison would expect to enjoy.
25. The Secretary of State submitted that if, contrary to his submission, the effect of these control orders was to deprive the controlled persons of their liberty in breach of article 5, the courts below were wrong to quash the orders. They should instead have quashed one or more obligations imposed by the orders or directed the Secretary of State to modify them. This argument depended on section 3(12) of the Act, which provides that if the court determines, at a hearing pursuant to directions given at a preliminary hearing, 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." Here, it was said, the court should not have quashed the whole orders, which had detrimental practical results (as when LL absconded before a new order could be made).
26. Sullivan J did not accept this argument, holding (para 92) that since the Secretary of State had no power to make the order, there was nothing to revoke. The Court of Appeal questioned (para 26) whether the Secretary of State's decision was flawed within the meaning of section 3(10) and (12), but found (para 27) the judge's reasons for quashing the orders compelling. This was also the conclusion reached by Beatson J in Secretary of State for the Home Department v E  EWHC 233 (Admin) (16 February 2007), para 310. Ouseley J in Secretary of State for the Home Department v AF  EWHC 651 (Admin) (30 March 2007), para 89, having found the control order under review to deprive the controlled person of his liberty, similarly held the order to be a nullity.
27. This conclusion is in my opinion irresistible. As recorded in paragraph 8 above, section 1(2) of the Act provides that the court on the application of the Secretary of State has power to make an order imposing obligations that are or include derogating obligations, while the power to make a control order is exercisable by the Secretary of State "except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under article 5" of the Convention. Thus the Secretary of State has no power to make an order that imposes any obligation incompatible with article 5. An administrative order made without power to make it is, on well-known principles, a nullity: see the recent decision of the Privy Council in Dr Astley McLaughlin v Attorney General of the Cayman Islands  UKPC 50. The defects in the orders cannot be cured by amending specific obligations, since what the Secretary of State made was a series of orders, applicable to the individuals named, and these are what he had no power to make. 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: ibid, para 16. 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.
28. This conclusion make it unnecessary to decide, in this case, whether control order proceedings involve the determination of a criminal charge within the meaning of article 6(1) of the Convention, a question discussed in paragraphs 13 to 24 of my opinion in MB and AF.
29. I would dismiss this appeal with costs.
30. The questions in these appeals are whether the terms of certain control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 are compatible with article 5.1 of the European Convention on Human Rights and whether the procedure by which they were made is compatible with article 6.
31. The long title of the 2005 Act is "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 " Section 1(1) defined a "control order" as "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 power to make the orders is contained in section 2(1):
32. Section 1(4) sets out, in 16 lettered paragraphs, the various kinds of obligations which a control order may impose. Since there is no dispute that all the obligations in these appeals fell within the statutory powers, it may be more useful, instead of quoting section 1(4), to set out the terms of one of the most restrictive orders in issue, which was made against an individual referred to as LL. He lives in a one-bedroom flat provided by the National Asylum Support Service (NASS) in an inner London borough, having arrived in the United Kingdom as an asylum seeker.
33. The order provides that he shall:
34. The purpose of these obligations is to make it easier for the security services to keep a close watch on what LL is doing and inhibit his participation in terrorist conspiracies. They are plainly a substantial interference with his privacy and freedom of movement. They engage article 8 of the Convention ("Everyone has the right to respect for his private and family life, his home and his correspondence") and would engage article 2 of Protocol 4 ("Everyone shall have the right to liberty of movement") if the United Kingdom had ratified that Protocol. They may well engage articles 9, 10 and 11 of the Convention (freedom of religion, freedom of expression and freedom of association) as well. In these appeals, however, no complaint is made on any of these grounds. The reason is that all these rights are qualified. They are subject to "such restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security " And there can be no doubt that the protection of the state and its people against terrorism is necessary in a democratic society. If, therefore, complaint were made under any of these qualified rights, the court would have to consider whether the particular restrictions could be justified as necessary and proportionate for the purpose of protecting the public.
35. But your Lordships have not been invited to carry out any such exercise. Instead, LL and the others allege that the orders infringe the rights under article 5.1, which says that "No one shall be deprived of his liberty", subject to various exceptions such as imprisonment for a criminal offence, none of which apply here. The point about the right not to be deprived of one's liberty under article 5.1 is that, subject to the exceptions, it is unqualified. Such is the revulsion against detention without charge or trial, such is this country's attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security. Only in time of war or "public emergency threatening the life of the nation" may the government derogate from the Convention, suspend habeas corpus and imprison people without trial.
36. There has been no derogation and the question is therefore quite simply whether the effect of the obligations imposed under the control order is to deprive LL and the others of their liberty. It is in my opinion clear from the unqualified nature of the right to liberty and its place in the scheme of the other qualified Convention rights that it deals with literal physical restraint. The right is not infringed by restrictions on liberty in a broader sense, such as restrictions on the right to communicate, associate or pray with others, each of which is protected by a separate qualified right, or with restrictions on movement, which (so far as it is protected at all) is dealt with in article 2 of Protocol 4. So much was stated by the European Court of Human Rights in Engel v The Netherlands (No 1) (1976) 1 EHRR 647. The Court said (at p.669) that the article contemplates "individual liberty in the classic sense, that is to say the physical liberty of the person". The paradigm case of deprivation of liberty is being in prison, in the custody of a gaoler.
37. Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.
38. That is the paradigm case. Obviously, however, one may have some degree of deviation from the standard case without it ceasing to be to a deprivation of liberty. The question of what amounts to a deprivation of liberty was discussed by the European Court of Human Rights in Guzzardi v Italy (1980) 3 EHRR 333. Mr Guzzardi, suspected of association with organised crime, was sent for three years to live under "special supervision" on the small island of Asinara, off the coast of Sardinia, which was then mainly used as a high security prison. (It is now a nature reserve). About 2.5 km 2 of the island lay outside the prison and was available for residence by people under special supervision like Mr Guzzardi. Virtually the only people living on that small piece of land were other internal exiles and carabinieri.
39. The Court decided by a majority of 11 votes to 7 that Mr Guzzardi had been deprived of his liberty. It is clear that both majority and minority regarded the case as very near the borderline. They agreed that the question was one of degree and, as the majority said, that "account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question". It is of course helpful to know that the question is one of degree and the matters which should be taken into account in answering it. But one also needs to be told what the question is. What is the criterion for deciding whether someone has been deprived of liberty or not? In the majority judgment that is not easy to discover. The nearest one gets is the statement (in paragraph 95) that "in certain respects the treatment complained of resembles detention in an 'open prison' or committal to a disciplinary unit." That suggests that the question was whether Mr Guzzardi's situation approximated sufficiently closely to the paradigm case of imprisonment. In his dissenting judgment, Judge Matscher said at paragraph 3 that deprivation of liberty was:
40. That is the same idea that I have tried to express by saying that imprisonment is the paradigm case but that the concept may include situations which lack certain features of the paradigm case. There is a similar statement of principle in the dissenting judgment of Sir Gerald Fitzmaurice, in paragraph 6, where he says that, taking into account the separate treatment of freedom of movement in article 2 of Protocol 4:
41. I do not think that the majority would have disagreed with this statement of principle. It was approved by the Court of Appeal in R (Gillan) v Commissioner of Police of the Metropolis  QB 388, 406 and the Court of Appeal's approach was approved by the House of Lords: see  2 AC 307, 343. The conclusion of the majority in Guzzardi that his situation was comparable with being in an open prison or a disciplinary unit suggests that they would have agreed with Sir Gerald's criterion - "confinement so close as to amount to the same thing" but thought that "on balance" the case fell on the wrong side of that line.
42. It is therefore clear that the absence of certain features of the standard case of imprisonment - for example, locked doors or institutional surroundings - are not essential to the concept of deprivation of liberty. One may be deprived of liberty by being placed in an open prison where the doors are not locked but one will be punished if one leaves without permission. Or one may be imprisoned under house arrest in one's own home: see Pekov v Bulgaria (30 June 2006). But that does not mean that these features are irrelevant in the assessment of whether one has been deprived of liberty. For example, to be placed under actual physical constraint for any length of time is, for that period, a deprivation of liberty. So in Gillan's case  2 AC 307, 343, where the appellants had been stopped and searched, Lord Bingham of Cornhill said that they had been kept waiting rather than deprived of their liberty and distinguished the case of a person who is "arrested, handcuffed, confined or removed to any different place." These amount to a deprivation of liberty. So, for example, in X v Austria (1979) 18 DR 154 the Commission expressed the view that to detain someone forcibly, even for a short time for the purpose of taking blood for a test, was a deprivation of his liberty.
43. However, when neither physical restraint nor removal from one's home is present, the Court takes a broader view. It does not confine its attention only to those times at which the person's liberty is most restricted (for example, when he is subject to a curfew) but asks in more general terms, as in Guzzardi's case, whether his situation approximates sufficiently closely to being in prison. Thus in Trijonis v Lithuania (17 March 2005) the applicant was placed under "home arrest" which required him to stay at home all week-end and between 7 pm and 7 am on work days. The court said that his movements had been restricted but he had not been deprived of his liberty. It did not say that he was deprived of his liberty at the week-ends, even though he could not then leave his house.