UK Government Loses another Control Order Case
16 February 2007
The English High Court has quashed yet another control order made by the Home Secretary pursuant to controversial powers in the Prevention of Terrorism Act 2005 [PTA 2005]. In Secretary of State for the Home Department v E [2007] EWHC 233, Beatson J held that the cumulative effect of the conditions contained in the impugned order meant that the measure constituted a "deprivation" of liberty, rather than a mere restriction of it. Therefore, in accordance with the provisions of the PTA 2005, such an order could only be imposed by the Court, and in purporting to issue the order himself, the Home Secretary had acted ultra vires.
This aspect of the Court's reasoning is similar to that of Sullivan J last summer in the High court in JJ and others v Secretary of State [2006] EWHC 1623 , which has survived appeal ([2006] EWCA Civ 1141). However, the circumstances of E were not quite the same as those in JJ, and some may feel that this case serves so as to further limit the conditions which the Home Secretary may impose via this class of control order.
Beatson J also held that the order was invalid because the Home Secretary failed properly to consider whether the claimant could have been prosecuted for criminal offences rather than renewing control order. This is a new basis of objection to a control order, however it follows upon the decision in another control order case of ReMB [2006] EWCA Civ 1140 where the Court of Appeal held " it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed".
In ReMB, Sullivan J in the High Court ([2006] EWHC 1000) granted a declaration pursuant to section 4(2) of the Human Rights Act 1998 that the procedures in section 3 of the PTA 2005 relating to the supervision by the court of non-derogating control orders made by the Secretary of State were incompatible with the respondents' right to a fair hearing under Article 6(1) of the ECHR. However that part of his decision was reversed by the Court of Appeal (See Secretary of State for the Home Department v MB [2006] EWCA Civ 1140) which held that the proceedings in question do not amount to a determination of a criminal charge and were compatible with the requirements which article 6 demands in civil proceedings.
Both the decision of the Court of Appeal in ReMB rejecting the argument that the supervisory role undertaken by the Court is insufficient to comply with the requirements of Article 6, as well as its decision in JJ not to reverse Sullivan J's finding that the restrictions amounted to a deprivation of liberty, are down for appeal to the House of Lords. ____________________________________________________________________________________________