|Judgments - Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action
97. It does not follow from the result of these appeals that the executive cannot be given by Parliament power to impose control orders on individuals accompanied by judicial procedures that do not comply with Article 6(1), or with common law, fair hearing requirements. The result of these appeals does mean that the executive has not yet been given such powers by Parliament. If the words read by Baroness Hale into the 2005 Act statutory power enabling relevant material to be withheld from the individual on whom a control order is sought to be imposed except where to do so would be incompatible with the right of the controlled person to a fair trial", a reading-in, as I have said, accepted by the Secretary of State, were to be expressly excluded by Parliament, the legislation would achieve what was, I assume, originally intended. The government would, of course, not propose such an express exclusion unless wholly satisfied that the discharge of its responsibility for the protection of the public from the risk of loss of life or limb from terrorist activity required such a thing. Parliament would not enact such an express exclusion unless so satisfied. Such an exclusion would leave the legislation potentially incompatible with the Convention and, unless the exclusion could be justified under Article 15 of the Convention, would leave this country in breach of its treaty obligations. But the courts would be bound, nonetheless, faithfully to apply the legislation. The underlying problem, as I see it, with the 2005 Act and the governments attitude to it, is that the government, having formed the view that the provisions of the Act were necessary for the safety of the public from terrorism and, accordingly, having promoted and obtained the enactment of the 2005 Act, has been unwilling publicly to accept that the implementation of these provisions may require the curtailment of fair hearing rights, and to face up to whatever may be the political consequences of that acceptance. The function of the courts is to apply the law. It is not the function of the courts to water down the concept and requirements of a fair trial so as to render Convention compatible legislation that may be incompatible. I am in no doubt that for the reasons given by Lord Phillips these appeals should be allowed.
LORD RODGER OF EARLSFERRY
98. I have had the advantage of considering the speech of my noble and learned friend, Lord Phillips of Worth Matravers, in draft. I agree with it and would accordingly allow the appeals. Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum - Strasbourg has spoken, the case is closed.
LORD WALKER OF GESTINGTHORPE
99. I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Phillips of Worth Matravers. I am in full agreement with it, and for the reasons given by Lord Phillips I would allow these appeals and make the orders which he proposes.
BARONESS HALE OF RICHMOND
100. I agree that these appeals must be allowed, for the reasons given by my noble and learned friend, Lord Phillips of Worth Matravers. I wish to add a few words of my own, out of courtesy to, and sympathy with, those judges who have had to grapple with my enigmatic opinion (and those of my colleagues) in Secretary of State for the Home Department v MB and AF  UKHL 46,  AC 440.
101. For what it is worth, which I agree is not much, my opinion now is that the views of Mitting J in Secretary of State for the Home Department v AN  EWHC 372 (Admin) and Stanley Burnton J in Secretary of State for the Home Department v AF  EWHC 453 (Admin) and  EWHC 689 (Admin) come much closer to the opinions which I was expressing then than do the views of Silber J  EWHC 132 (Admin) and  EWHC 585 (Admin) and the Court of Appeal  EWCA Civ 1148;  2 WLR 423. The ability to make an effective challenge to the case put against the controlled person is the key. However, I did not say so as clearly as, with hindsight, I should have done. And I was also far too sanguine about the possibilities of conducting a fair hearing under the special advocate procedure. There are reasons for this.
102. As to the first, it was not then clear precisely what test Strasbourg would employ in judging whether any difficulties caused to the defence by a limitation on its rights [are] sufficiently counterbalanced by the procedures followed by the judicial authorities (the principle which had clearly emerged from the Strasbourg jurisprudence up to that point). My noble and learned friends, Lord Hoffmann and Lord Bingham of Cornhill, took very different views on the point. Hence the main issue for us was whether the special advocate procedure would always be sufficient, or would rarely if ever be sufficient, or might be sufficient depending upon the nature of the case, how much had been disclosed and how effectively the special advocates had been able to challenge what was not disclosed. The majority took the view that it would not always be sufficient but might sometimes be so. Reading down the statute and rules so that the judges were no longer required to make the order, even though the Secretary of State was not willing to make sufficient disclosure to enable the controlled person to have a fair hearing, was the way to reconcile the competing interests. Despite considerable provocation to do so in the course of this hearing, the Secretary of State has not sought to persuade us to depart from that reading down. She has accepted that control orders cannot be confirmed by the court if the controlled person has not had a fair hearing. She and her counsel deserve full credit for taking that principled stance.
103. This is all the more creditable, given that Strasbourg has now, in A and others v United Kingdom, Application No 3455/05, Judgment, 19 February 2009, made it entirely clear what the test of a fair hearing is. The test is whether the controlled person has had the possibility effectively to challenge the allegations against him. For this he does not have to be told all the allegations and evidence against him, but he has to have sufficient information about those allegations to be able to give effective instructions to his special advocate. This is the way in which Mitting J put the principle in para 9 of his open judgment in AN and he too deserves credit for his prescience.
104. Since then we have also had the benefit of very full submissions by the special advocates, explaining just what it is that they are and are not able to do in the course of a typical closed control order hearing. In particular, they have set out, probably for the first time in public, the principles which have been generally applied by the courts in relation to the disclosure of closed material. It is not for us, in these proceedings, to decide whether they are correct. For the time being, they represent the law. It is worth setting them out here:
(a) Issues of relevance and materiality are irrelevant. There is no balance to be struck between the harm to the public interest if disclosure were to be made and the harm to the interests of justice flowing from non-disclosure: the interests of justice play no part in disclosure decisions on the routine application of CPR Part 76.
(b) The fact that closed material may contain documents that are exculpatory is not relevant in seeking to contend for disclosure to the controlled person.
(c) Any disclosure is assumed to be not just to the controlled person, but to the world at large;
(d) The test is met by mere contemplation by any party of the nature of the primary source of the information, rather than that persons actual identification of that source of information. Therefore disclosure of information is harmful where it may lead to a suspicion in the mind of the controlled person, or a hardening of an existing suspicion, even falling short of actual knowledge or information. Accordingly, for example, the fact the respondent may already suspect that his landline or principal mobile phone has been intercepted would not of itself justify disclosure of that fact.
(e) National security concerns advanced by the Security Service are within its particular expertise and accordingly very convincing material is required before such powerful considerations can be overcome.
105. The result, the special advocates tell us, is that the scope for contesting the Secretary of States objections to disclosure is very limited and the vast majority of those objections are upheld. It appears that the objections are often in the nature of class claims, relating to the sort of information it is, rather than specific to the particular case. This makes them very different from the other cases mentioned in my opinion, relating to children and mental patients, where non-disclosure may be permissible. These days, a Mental Health Review Tribunal would be unlikely to uphold a non-disclosure claim on the general ground that disclosure would be damaging to the doctor patient relationship. They would want to know precisely what it was in this doctors evidence that might cause serious harm to this patient or to some other person and to weigh that damage against the interests of fairness (see Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699(L16)), rule 14(2)). It will be an individualised balancing act carried out after discussion with the patients own advocate and in the light of the opinions of the patients own independent medical adviser.
106. Under the principles applied to control order cases, that balancing act is largely left to the Secretary of State. So there are bound to be many more cases than I anticipated where the judge is forced to conclude that there cannot be an effective challenge without further disclosure and the Secretary of State is left to decide whether she can agree to it. But the bottom line is that the control order cannot be upheld if the hearing cannot be fair. That seems to me to be an entirely proper and principled conclusion. If the Government adjudges that it is necessary to impose serious restrictions upon an individuals liberty without giving that individual a fair opportunity to challenge the reasons for doing so, as to which it is not for us to express a view, then the Government will have to consider whether or not to derogate from article 6 of the Convention. Until that time, judges will have to grapple with precisely how much disclosure is necessary to enable the controlled person to mount an effective challenge and the Secretary of State will have to grapple with whether to agree to it. The principles are clear, although by no means easy to apply in particular cases, and in common with my noble and learned friend Lord Brown of Eaton-under-Heywood, I hope that they will not have to trouble the appellate courts again.
107. When the majority of the Appellate Committee in Secretary of State for the Home Department v MB  UKHL 46,  AC 440, of whom I was one, expressed their conclusions they were of the view that there may be cases in which it is possible to accept that the person subject to a control order (the controlee) has received a fair trial, even though the material adduced by the Secretary of State in support of the control order may have been based solely or to a decisive degree on closed material. They were of opinion that the fairness of the procedure would depend on all the facts and that in some cases of this nature the special advocate might be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee (see para 85 of my opinion in that appeal). This approach contained a degree of flexibility, which might be said to be in accord with the spirit of the common law.
108. The Grand Chamber in A v United Kingdom (Application No 3455/05, judgment 19 February 2009) has expressly opted for an absolute rule, especially in the last sentence of para 220 of the judgment of the Court:
Where, however, the open material consisted purely of general assertions and SIACs decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5(4) would not be satisfied.
As your Lordships have pointed out, section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account. Whatever latitude this formulation may permit, the authority of a considered statement of the Grand Chamber is such that our courts have no option but to accept and apply it. Views may differ as to which approach is preferable, and not all may be persuaded that the Grand Chambers ruling is the preferable approach. But I am in agreement with your Lordships that we are obliged to accept and apply the Grand Chambers principles in preference to those espoused by the majority in MB.
109. I therefore have to agree that the appeals should be allowed and each case remitted to the judge for further consideration.
LORD BROWN OF EATON-UNDER-HEYWOOD
110. I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Phillips of Worth Matravers. I gratefully take from it all the relevant facts, statutory materials, and arguments. I agree with it and add a short judgment of my own only because of my earlier close involvement in Secretary of State for the Home Department v MB  AC 440 with the issues now arising.
111. The UKs Memorial of February 2008 in A v United Kingdom (Application No 3455/05), judgment 19 February 2009, expressly invited the Grand Chamber to deal with the whole question of closed evidence and special advocates in the context of todays terrorist threat. All that the three appellants seek in these appeals to the House is that the Secretary of State should now accept and apply the Strasbourg Courts judgment. True, A was directly concerned, not with control orders imposed under the Prevention of Terrorism Act 2005 but with the earlier regime of detention (at Belmarsh Prison) under the Anti-terrorism, Crime and Security Act 2001, and accordingly with article 5(4) of the Convention rather than, as here, article 6. True too, the ECtHR in A, holding that article 5(4) must impose substantially the same fair trial guarantees as article 6(1) in its criminal aspect", took account of the dramatic impact of the lengthyand what appeared at that time to be indefinitedeprivation of liberty on the applicants fundamental rights". Whilst, however, non-derogating control orders, such as those under challenge here, by definition involve no deprivation of liberty, they involve the severest possible restrictions on a number of important Convention rights (and, of course, on freedom of movement albeit the UK have not ratified Protocol 4 so as to confer that particular right); they too (albeit reviewable annually) may appear indefinite, and it cannot sensibly be supposed that Strasbourg would take a different view about the application of the fair trial guarantees to them.
112. The essential similarities between the two regimes are altogether more striking than their differences. Both involve the making of orders on the basis only of reasonable suspicion of terrorist activity. And, of course, both involve identical schemes for the admission of closed material and the use of special advocates. That detention orders were appealable to SIAC, whereas control orders are subject to review by a single High Court judge, is an immaterial distinction.
113. There is, let me say at this point, all the difference in the world between both these regimes and the appeal jurisdiction exercised by SIAC under the SIAC Act 1997 such as was recently considered by the House in RB (Algeria) v Secretary of State for the Home Department  UKHL 10;  2 WLR 512. Those cases concerned the expulsion of undesirable aliens and the House roundly rejected the attack there on the use of closed material. As was pointed out, the process in those cases was beyond the reach of article 6 and in any event involved no case being made against the deportee but rather his case against the state to which it was proposed to deport him.
114. Your Lordships are therefore bound to apply A in the determination of these appeals. Section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account and A could hardly be more authoritative, contemporary or closer in point than it is. What then follows? Inexorably, as it seems to me, these appeals must be allowed and the Secretary of State be given now the option of disclosing further material as the price of maintaining the control orders, in their present or modified form. (Although by definition the courts have decided that any further disclosure in these cases would be contrary to the public interest, all agree that on their remission to the judges below, the Secretary of State would, in a final assessment of the public interest, have to balance that damage against the damage resulting from the control orders being discharged.)
115. The essence and effect of the Grand Chambers decision in A can be comparatively shortly stated. It comes to this:
(i) Although in the pastin cases like Chahal v United Kingdom (1996) 23 EHRR 413, Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Al-Nashif v Bulgaria (2002) 36 EHRR 655the Court has contemplated the use of special advocates as a means of counterbalancing procedural unfairness and thereby satisfying the requirements of articles 5(4) and 6, it has never previously actually decided the pointparas 209 and 211.
(ii) Special advocates can provide an important safeguard in ensuring that the fullest possible disclosure is made to the suspect as is consistent with the public interest (para 219). However, the special advocate cannot usefully perform his important role of "testing the evidence and putting arguments on behalf of the [suspect] unless the suspect is provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate (para 220, second sentence).
(iii) "Where . . . the open material consist[s] purely of general assertions and [the judges] decision [to confirm the control order is] based solely or to a decisive degree on closed material, the procedural requirements of [article 6 will] not be satisfied. (para 220, last sentence)
(iv) This is so despite the Courts express recognition (a) that there is a strong public interest in obtaining information about al'Qaeda and its associates and in maintaining the secrecy of the sources of such information (para 216) and (b) that no excessive or unjustified secrecy is employed; rather there are compelling reasons for the lack of disclosure (para 219).
116. In short, Strasbourg has decided that the suspect must always be told sufficient of the case against him to enable him to give effective instructions to the special advocate, notwithstanding that sometimes this will be impossible and national security will thereby be put at risk.
117. Was this what the majority of the Committee (Baroness Hale of Richmond, Lord Carswell and myself) held in Secretary of State for the Home Department v MB  AC 440? I do not think so. Certainly we recognised that on occasion the special advocate procedure would fail to satisfy the requirements of article 6; but we contemplated that this would be so only in a few cases (Lady Hale, para 68), wholly exceptional[ly] (my opinion, para 90). More particularly, although I believe we felt the need to disclose to the suspect an irreducible minimum of allegation (to avoid an entirely Kafkaesque situation), we thought that in certain circumstances this might require very little information indeed, the position in AFs case itself (as to that, see para 42 of the opinion of Lord Bingham of Cornhill). Ouseley J, after all, had expressly regarded the special advocate as providing AF with a substantial and sufficient measure of procedural protection and on this account we expressly contemplated that, although the case had to go back to the judge, he might well still conclude that overall the hearing had been fair and in compliance with article 6 (Lady Hale, para 76; Lord Carswell para 87; myself para 92).
118. In my opinion the majority of the Court of Appeal in the present case, in paragraph 64 of its judgment, correctly summarised the decision of the majority of the House in MB (save perhaps for the first sentence of para 64(iv) as to the irreducible minimum). Plainly, however, certain aspects of that decision can no longer stand in the face of A. In particular A is inconsistent with MB (as summarised by the Court of Appeal below) at para 64(iv)that any requirement for an irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeedand para 64(vii): There are no rigid principles. What is fair is essentially a matter for the judge, with whose decision this court should very rarely interfere.
119. Plainly there now is a rigid principle. Strasbourg has chosen in para 220 of A to stipulate the need in all cases to disclose to the suspect enough about the allegations forming the sole or decisive grounds of suspicion against him to enable him to give effective instructions to the special advocate. In reaching this decision Strasbourg clearly rejected the argument set forth in the Governments Memorial, including, for example, that article 6 confers no absolute right which necessarily overrides the rights of others, including the right to life under article 2, and overrides the interests of the state in protecting secret sources of information so as to preserve the effectiveness of its intelligence, police and counter-terrorism services. Such an absolute right to disclosure would, if it existed, create a serious lacuna in the protection the State may offer its citizens and disregards the principle, inherent in the Convention as a whole, including . . . article 6, that the general interests of the community must be balanced against the rights of an individual (see eg Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69 [and] Soering v United Kingdom (1989) 11 EHRR 439, para 89).
120. That said, however, Strasbourgs solution to the problem itself plainly represents something of a compromise and gives some weight at least to the demands of national security. Although the Court (at para 217) spoke of importing substantially the same fair trial guarantees as article 6(1) in its criminal aspect and (at para 220) used the language taken from its earlier judgments (in cases such as Lucà v Italy (2001) 36 EHRR 807 and Doorson v The Netherlands (1996) 22 EHRR 330) concerning criminal convictionsof decisions based solely or to a decisive degree on closed material, the result arrived at is very different from that reached in the strictly criminal context. In criminal cases, Strasbourg has held that a conviction should not be based solely or to a decisive extent on anonymous statements (a principle recently applied by the House in R v Davis  AC 1128). If the defendant does not know who his accuser is, he is obviously at a disadvantage in challenging his credibility and reliability. This, however, is not the approach which A now dictates in a control order case. Plainly A does not require the disclosure of the witnesss identity or even their evidence, whatever difficulties that may pose for the suspect. What is required is rather the substance of the essential allegation founding the Secretary of States reasonable suspicion.
121. Sometimes, of course, it will be impossible to separate out allegations from evidence and, in turn, evidence from its sources (whether these be informants or techniques, neither of which can be disclosed). And in these cases national security may need to give way to the interests of a fair hearing. That is where the ECtHR has chosen to strike the balance between the competing interests. Some of your Lordships may consider that it could and should have been struck differently, perhaps as it was in MB. Plainly there is room for at least two views about this, as indeed the differing opinions expressed in MB and by the various first instance and Court of Appeal judges in the present cases amply demonstrate. But, as I suggested at the outset, the Grand Chamber has now pronounced its view and we must accept it. Judges exercising this jurisdiction in future will clearly have to follow A. Inevitably there will continue to be closed hearings and special advocates. Now, however, that the approach to all this has been declared as definitively as possible, I cannot think that it will ever again be necessary for the Court of Appeal, as opposed to the first instance judges, to consider closed material or hold closed hearings or itself deliver closed judgments. There is a right of appeal only in point of law. The judges who deal with control orders are highly experienced in this work. No one will be better placed than they are to decide what disclosure must be given to meet the requirements of article 6 as now determined by the Grand Chamber and described in para 220 of A.