Secretary of State for the Home Department v AF

Where a control order cannot be maintained because the Secretary of State will not disclose the information required to secure a fair hearing under article 6, the court may quash the order retrospectively. On the facts, the orders were quashed ab initio because the Secretary of State would have refused the required disclosure whenever the relevant legal principles applied.

Article 6 may apply to interim control orders where their nature, effects and duration substantially determine civil rights. The disclosure requirement also applies in principle to damages claims arising from the imposition of such orders. A respondent who succeeds in having the orders quashed is ordinarily entitled to the costs of the proceedings.

AE and AF were each subjected to non-derogating control orders under the Prevention of Terrorism Act 2005. The Secretary of State relied on closed material and did not disclose sufficient information to enable them to give effective instructions to their legal representatives.

Following the House of Lords decision in Secretary of State for the Home Department v AF (No. 3), the Secretary of State revoked both orders rather than making the further disclosure required. The applications concerned whether the orders should be quashed retrospectively or revoked prospectively, whether the disclosure requirements applied to damages claims, and whether AE and AF were entitled to their earlier costs.

1. Retrospective effect. The decisions in A v United Kingdom and Secretary of State for the Home Department v AF (No. 3) had retrospective, not merely prospective, effect. Prospective overruling remained exceptional and was especially inappropriate where liberty was affected (paras [18]–[24]).

2. Power to quash. Under sections 3(10)–(12) of the Prevention of Terrorism Act 2005, applied with ordinary judicial review principles, the court had power to quash a control order ab initio. A serious failure to comply with article 6 could constitute an error of law making the order flawed. The court rejected the view that the order could only be revoked prospectively (paras [27]–[31], [60]–[84]).

3. Responsibility and fairness. Non-derogating control orders were executive orders made and renewed by the Secretary of State, not court orders. The Secretary of State’s decisions therefore formed part of the process engaging article 6. The closed procedure did not provide the required fair hearing where the controlees lacked the essence of the case against them and could not give effective instructions (paras [35]–[44]).

4. Interim measures. Article 6 applied because the orders determined civil rights in substance. The restrictions were severe, operated for lengthy periods and radically affected freedom of movement and ordinary life. The relevant inquiry required consideration of the civil right concerned and the nature, purpose and effects of the measure, subject to any exceptional need for rapid decision-making (paras [51]–[59]).

5. Remedy and damages. The disclosure principle in Secretary of State for the Home Department v AF (No. 3) applied in principle to claims for damages arising from the imposition and renewal of control orders. Otherwise the controlees could be denied an effective remedy and the opportunity to clear their names (paras [90]–[112]).

6. Orders. The relevant control orders were quashed ab initio. AE and AF were entitled to recover the outstanding costs of the control-order proceedings on the standard basis. The ruling did not determine liability or the amount of any damages claims (paras [113]–[120]).

Not stated in the judgment.