QX v Secretary of State for the Home Department

A review of a temporary exclusion order may determine civil rights where quashing the order would also remove obligations interfering with article 8 rights. Article 6.1 therefore applies, and disclosure must meet the fair-hearing standard required by the seriousness of the interference. Where the interference is sufficiently severe, the AF (No 3) standard requires enough information to enable effective instructions about the allegations.

The reviewing court applies judicial-review principles. It reviews the Secretary of State’s national-security decisions and does not decide the statutory conditions for itself. The approach adopted for control orders under the 2005 Act does not govern the materially different 2015 Act. A court also has no general power to compel a party to call a witness on a substantive issue, although it may require an existing witness statement to be tested by cross-examination.

The appellant, a British citizen, was made subject to a temporary exclusion order after the Secretary of State alleged that he had engaged in terrorism-related activity in Syria. He returned to the United Kingdom under a permit and became subject to obligations imposed under the Counter-terrorism and Security Act 2015.

He initially challenged only those obligations. After the order expired, he amended his case to challenge the imposition and continuation of the temporary exclusion order, partly to support a possible appeal against convictions for breaches of the obligations. Farbey J held that article 6.1 applied to the obligations and that AF (No 3) disclosure was required, but held that it did not apply to challenges to Conditions A and B. She declined to order cross-examination on those conditions but ordered the Secretary of State to provide a national-security witness for evidence on the obligations. The appeal and cross-appeal concerned disclosure, the scope of judicial review, and the witness order.

Laing LJ gave the leading judgment. Nugee LJ agreed with her reasons, and Coulson LJ agreed on the appeal and gave separate reasons allowing the cross-appeal.

1. Academic issue. The appeal was not academic. The Judge had not previously decided whether disclosure complying with AF (No 3) had been given in relation to a challenge to Conditions A and B. Her earlier observations were made when that challenge was not before her and were obiter in the procedural sense.
2. Article 6.1 and disclosure. The statutory scheme made a challenge to the imposition of the temporary exclusion order potentially decisive for the appellant’s article 8 rights. If the order were quashed, the obligations imposed under section 9 would also fall. The review therefore concerned civil rights and obligations. Article 6.1 applied, and the appellant was entitled to disclosure complying with the AF (No 3) standard, subject to the seriousness of the interference.
3. Scope of review. The Court of Appeal’s reasoning in MB under the Prevention of Terrorism Act 2005 did not govern the interpretation of the Counter-terrorism and Security Act 2015. The statutory language, degree of intrusion, supervision arrangements and allocation of decision-making power differed. In light of Begum and Rehman, the court’s task was to review the Secretary of State’s decisions under judicial-review principles. It was not to decide Conditions A and B for itself. Cross-examination of a national-security witness was therefore unnecessary on those issues.
4. Cross-appeal. Party autonomy meant that the court had no general power to compel the Secretary of State to call a witness whom she did not wish to call on a substantive issue. CPR 3.1(2)(m) was confined to case management and did not support the order. If unattributed national-security statements were to be relied on, the Judge first had to decide whether to receive them under CPR rule 88.25(4). She could exclude them or suggest a compliant statement and cross-examination, but could not compel the witness order made.
5. Disposition. Ground i of the appeal was allowed. Ground ii was dismissed. The Secretary of State’s cross-appeal was allowed.

1. Court of Appeal (Civil Division) allowed the appeal on the disclosure issue, dismissed the challenge to the refusal of cross-examination on Conditions A and B, and allowed the Secretary of State’s cross-appeal: [2022] EWCA Civ 1541.
2. High Court (Farbey J) made three preliminary decisions. In judgment 3, following the judgment handed down on 7 April 2022, she refused AF (No 3) disclosure for the challenge to Conditions A and B, refused cross-examination on those conditions, and ordered a national-security witness on the necessity and proportionality of the section 9 obligations.