The control order cases: liberty’s a matter of pure opinion

On Wednesday the Lords gave their judgment in the appeals of JJ and others, MB and AF, and E, against the making of control orders against them under the Prevention of Terrorism Act 2005. Jacqui Smith may be putting a brave face on it, but these rulings dent the control order regime considerably.

The big question in the JJ case was whether six of the control orders were so restrictive as to amount to a “deprivation of liberty” for the purposes of the article 5 Convention right to liberty and security of person. If so, then the orders were http://www.magliettedacalcioit.com necessarily flawed – because the government could not (and didn’t even try to) argue that any of the limited circumstances applied in which, under article 5, restrictions on liberty are permitted. The lawfulness of the orders simply turned, therefore, on whether they deprived the subjects of liberty.

In a sense Jacqui Smith was unlucky on this: she lost by three Law Lords to two. All the Lords focused on the old European Court of Human Rights ruling in Guzzardi, still the most important Strasbourg case on when restrictions short of actual imprisonment – undoubtedly the paradigm case article 5 is meant to deal with – may still be so tight as to deprive someone of his liberty. In paragraph 93 of that ruling, the ECtHR had said:

The difference between deprivation of and restriction upon liberty is… merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5… depends.

So their Lordships delivered their opinions.

Lord Bingham set out the detail of one of the orders – the subject was confined to a one bedroom flat for 18 hours a day, only permitted adult visitors who’d been approved by the Home Office following background checks, only allowed pre-arranged meetings with approved people, obliged to wear an Cheap Jerseys electronic tag, restricted to a limited area even in his six hours out, and banned from using the internet. The flat could be searched at any time. Pretty clearly, it seems to me, a Guzzardi-type case: not exactly imprisonment, perhaps, but very close to it. Bingham compared it to being in an open prison, and concluded that there was a deprivation of liberty. For what my pure opinion is worth, I agree. And so did Lady Hale.

Lords Hoffmann and Carswell didn’t, though – hard men, these pair. They preferred a very narrow conception of deprivation of liberty, seeing Guzzardi as an outlying, borderline case and contrasting the right to liberty with the right to free movement under article 2 of Protocol 4. They preferred to keep the Guzzardi approach within strict limits, and I detect even an implication in their speeches that the majority in Strasbourg was wrong and that the dissenting judgment of Sir Gerald Fitzmaurice is preferable.

It’s Lord Brown who scores the winner, and I can’t help adding that I think he played a blinder in his speech. While correctly focusing on Guzzardi, he makes the important point that that ruling made clear that the borderline between liberty and free movement would shift – in accordance with the Strasbourg concept of the Convention as a “living instrument” – according to changing legal standards. He not only concludes that 18 hours is too much, but unlike the other judges goes on to give an indication that he thinks 16 hours is the maximum that would be lawful; while shorter curfews would be compatible with article 5. I think he was right to give some guidance to ministers and the public about where he thinks the cut-off should be. My only difficulty with his approach is that he focuses so much on the curfew alone rather than on the intensity of the other restrictions; but perhaps that’s inevitable if any kind of helpful indication is to be given. With luck, his speech offers some of that “firmness of accuracy” that Charles Clarke wanted, so that Jacqui Smith needn’t flail around quite so much.

One word for Lord Hoffmann, though: I think he was right, and the other Law Lords wrong, on the correct remedy to apply in this case. Lord Bingham and the other concluded that, since the Home Secretary had no power to make control orders amounting to a deprivation of liberty, the orders must be quashed as having been a nullity from the start. They saw the court as being unable to exercise its powers under section 3(12) of the Act to quash one or more of the obligations in it, or to direct the Home Secretary to modify it. That can’t be right; as Lord Hoffmann rightly said, since section 3(12) only applies when a control order is unlawful, the other Law Lords have simply written subsection (12)(b) and (c) out of the statute.

So, Jacqui Smith loses the right to impose 18 hour curfews; though she’ll try relying on Lord Brown’s pure opinion to get away with 16 hours in future. My advice? She’d better keep below that, at 12 or 14 hours, if she also wants to keep all the other tight restrictions she’s had on these people.