Secretary of State for the Home Department v MB

A statutory scheme for judicial supervision of non-derogating control orders must be construed, so far as possible, to provide an effective and current review of the control order and to meet the procedural requirements of Article 6(1). A judicial-review formulation does not prevent the court from deciding for itself whether there are objectively reasonable grounds for suspicion, or from scrutinising proportionately the necessity of each obligation.

Closed material may be used where national security makes non-disclosure strictly necessary, provided that safeguards, including a special advocate procedure, adequately counterbalance the resulting prejudice. On that construction, Prevention of Terrorism Act 2005 procedures were compatible with Article 6(1).

The Secretary of State made a non-derogating control order against MB under the Prevention of Terrorism Act 2005. The order imposed reporting, residence, travel, port-access and monitoring obligations. Material said to justify the order was withheld from MB and his representatives on national-security grounds; no summary could safely be given.

Sullivan J declared the statutory supervisory procedure incompatible with Article 6(1), principally because it was confined to judicial review of the Secretary of State’s earlier decision and permitted reliance on undisclosed material: [2006] EWHC 1000 (Admin). The Secretary of State appealed. The central issue was whether the statutory procedure could provide a fair Article 6 review of the continuing control order.

1. Appeal allowed. The declaration of incompatibility could not stand. The validity of the control order was to be reconsidered using the correct legal approach.

2. Section 11(2), read with section 3 of the Human Rights Act 1998, required the court to consider the controlled person’s Convention rights by reference to the circumstances when it determined the case. Section 3(10) of the Prevention of Terrorism Act 2005 could and should therefore be read as requiring review of the Secretary of State’s continuing decision to keep the order in force, rather than only the original decision.

3. The requirement to apply judicial-review principles did not prevent a review compliant with Article 6(1). The court had procedural powers sufficient, where Article 6 required it, to reach its own judgment. It had to determine for itself the objectively factual issue whether there were reasonable grounds for suspecting terrorism-related activity. The reasonable-suspicion threshold was a substantive statutory criterion, not a reduced standard of proof for establishing that activity.

4. The necessity of imposing the order and each individual obligation required proportionality review. The Secretary of State was entitled to a degree of deference on national-security measures, but the court had to scrutinise the necessity of each obligation intensely, especially where it was onerous or intrusive, and consider less restrictive alternatives.

5. Article 6 did not impose an absolute rule requiring disclosure of all material. National-security interests could justify closed material if the restriction was strictly necessary and adequate safeguards counterbalanced the disadvantage to the controlled person. The statutory disclosure provisions, Part 76 procedure and special advocate arrangements provided such safeguards. The fact that no usable summary could be supplied to MB did not, in itself, make the proceedings incompatible with Article 6(1).

6. The court also expressed the non-essential view that proceedings concerning a non-derogating control order did not determine a criminal charge.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and held that the control-order review procedure, properly construed, was compatible with Article 6(1): [2006] EWCA Civ 1140.
• High Court, Administrative Court: Sullivan J declared under section 4(2) of the Human Rights Act 1998 that the section 3 procedure was incompatible with Article 6(1): [2006] EWHC 1000 (Admin).