AN v Secretary of State for the Home Department

A non-derogating control order is an administrative act made exclusively by the Secretary of State. The court supervises its legality but does not make the order. An order which was legally flawed when made will ordinarily be quashed from its inception.

The Secretary of State cannot establish an order’s legality by relying on material which he will not disclose or gist sufficiently to permit an effective challenge. Good faith and a reasonable misunderstanding of the law do not preserve the order. Prospective revocation under section 3(12)(c) of the Prevention of Terrorism Act 2005 is appropriate where a valid order later becomes unsustainable because circumstances change. It is not the proper remedy where the order was flawed throughout.

Following the House of Lords’ decision in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, the Secretary of State declined to make the disclosure required for effective challenges to several control orders and revoked them prospectively.

In AN [2009] EWHC 1966 Admin, Mitting J held that AN’s order had been lawful when made and directed only prospective revocation. In AE and AF [2010] EWHC 42 Admin, Silber J quashed the orders from their inception. AN appealed, while the Secretary of State appealed in the cases of AE and AF.

The central issue was whether the orders had to be quashed ab initio or whether prospective revocation was sufficient. The issue affected a prosecution of AN for breach of his order and the prospective damages claims of AE and AF.

1. AN’s appeal was allowed and the Secretary of State’s appeals in AE and AF were dismissed. AN’s control order was quashed ab initio, and the orders concerning AE and AF remained quashed from their inception. Maurice Kay LJ gave the judgment, with which Rix LJ and Stanley Burnton LJ agreed.

2. A non-derogating control order under the Prevention of Terrorism Act 2005 is made exclusively by the Secretary of State. The court’s statutory role is supervisory. It considers whether the Secretary of State’s decisions are obviously flawed at the permission stage and flawed at the substantive section 3(10) hearing. The order is therefore an administrative act, not an order of the court. Analogies with injunctions and anti-social behaviour orders were false.

3. A legally flawed administrative act ordinarily attracts quashing from its inception. The Secretary of State could not demonstrate that the control orders had ever satisfied section 2(1) without relying on closed material which he was unwilling to disclose or gist as required for an effective challenge. The court could not assume the existence of reasonable grounds without examining the material relied upon.

4. The Secretary of State’s good faith, reliance on previous domestic decisions and reasonable misunderstanding of the applicable disclosure obligations afforded no defence. The orders interfered with the controlled persons’ human rights. The executive had to be capable of supporting the legality of that interference before a court.

5. Section 3(12)(c) retained an important function. Prospective revocation may be suitable where an order was valid and sustainable when made but later ceased to be so because circumstances changed. In materially unchanged circumstances, however, the statutory structure contemplated that an order flawed throughout should be quashed ab initio.

6. The fact that Article 6 might not apply before service did not make the orders lawful at their inception. When moving towards a control order, the Secretary of State knew that he would have to justify it under sections 3(2) and 3(10). It was unlawful to proceed where justification would require material which he would not disclose sufficiently to permit an effective challenge. Treating the orders as merely prospectively revoked would also risk leaving breaches of Convention rights substantially unremedied.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 869, allowed AN’s appeal, quashed his control order ab initio, and dismissed the Secretary of State’s appeals concerning AE and AF.
2. High Court, Administrative Court: In AE and AF [2010] EWHC 42 Admin, Silber J quashed the control orders ab initio.
3. High Court, Administrative Court: In AN [2009] EWHC 1966 Admin, Mitting J declined to quash the order ab initio and directed its prospective revocation.
4. House of Lords: In Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, the cases were remitted to the High Court for further consideration after clarification of the disclosure required in control-order proceedings.