Secretary of State for the Home Department v GG

The principle of legality prevents general or ambiguous statutory words from overriding fundamental common law rights. An intrusion must be authorised by express language or necessary implication. Necessary implication may arise from detailed statutory provisions showing that Parliament considered and closely regulated the intrusion.

The right to personal security and liberty protects a person against an official search of their clothing or body without statutory authority. Section 1(3) of the Prevention of Terrorism Act 2005 did not authorise a control order imposing a general obligation to submit to personal searches. Its broad reference to “any obligations”, the non-exhaustive statutory examples and the convenience of a search power did not establish the necessary implication.

GG, a foreign national, was subject to a control order made under the Prevention of Terrorism Act 2005. Following a full statutory review, Collins J upheld the control order generally but removed an obligation requiring GG to submit to personal searches for the purpose of monitoring compliance: [2009] EWHC 142 (Admin).

The Secretary of State appealed, accepting that the obligation as drafted was too broad but contending that it could validly require searches by police officers. The central issue was whether section 1(3), alone or in its statutory context, expressly or by necessary implication authorised a control order to require submission to personal searches.

1. Appeal dismissed. Section 1(3) of the Prevention of Terrorism Act 2005 did not authorise a control order containing a general obligation to submit to personal searches, whether demanded by any person authorised by the Secretary of State or only by a police officer. Sedley LJ and Dyson LJ delivered concurring judgments. Wilson LJ agreed with both.
2. The common law rights of personal security and personal liberty prevent an official search of a person or their clothing without explicit statutory authority. A personal search restrains freedom and affronts dignity and privacy. Those protections apply to a person subject to a control order as fully as to others.
3. Under the principle of legality, fundamental rights cannot be overridden by general or ambiguous statutory words. Parliament must use express language or confer the power by necessary implication. Detailed and closely regulated statutory arrangements may establish such an implication by showing that Parliament addressed the intrusion and its consequences. General words alone do not.
4. The expression “any obligations” in section 1(3) was general language. The detailed examples in section 1(4) included obligations less intrusive than personal searches but contained no personal-search power. Some listed obligations authorised conduct which would otherwise constitute civil wrongs or criminal acts. Their express inclusion supported the conclusion that section 1(3) alone did not authorise equivalent interference with fundamental rights.
5. A personal-search power was not necessarily implied as an adjunct to the listed controls. Although potentially useful, it was neither essential to their operation nor shown to have been used. Its possible convenience could not establish necessity, particularly when its exercise was undefined and wholly unregulated. The contrast with legislation expressly creating and regulating search powers reinforced that conclusion.
6. The court could not supply an omitted power affecting fundamental liberties, even if its absence resulted from legislative oversight. It was unnecessary to determine GG’s alternative arguments under article 8 of the Convention or whether the uniform imposition of the obligation meant that it was not individually necessary.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The removal of the personal-search obligation was upheld: [2009] EWCA Civ 786.
2. High Court, Administrative Court: Collins J upheld the control order generally but removed the personal-search obligation as being beyond the Secretary of State’s statutory powers: [2009] EWHC 142 (Admin).