Lords judgment: Home Secretary v AF

I said I’d write about the case; and now, finally, I am doing. Here’s last week’s judgment about control order. There’s also the podcast I recorded with Charon QC about it, don’t forget.

I must admit, I was surprised by this judgment: I wrote eighteen months ago about a similar case, also involving one of these appellants (AF), which at the time I thought had much the same result as last week’s case – ruling that an appeal to SIAC from a control order is in breach of the right to a fair hearing if the case against the controllee is mainly based on secret material. It seems I was wrong in reading the case that way, because three of their Lordships who were involved in both cases – Lady Hale, Lord Carswell and Lord Brown – say that’s not what they meant. Oh, well. I take comfort in the fact that they needed to explain that, and that Lady Hale admits that whatever it was she wanted to say in MB, she didn’t say it clearly enough.

This time there can be no doubt the Lords have decided – nine of them, unanimously – that a controlee must be gven sufficient information about the allegations against him if his appeal to SIAC under the Prevention of Terrorism Act 2005 is to be fair. They were applying the European Court of Human Rights in A v UK, which laid down that principle in a case involving the legislation that preceded the 2005 Act – and which was ruled incompatible with Convention rights by the Lords in 2004.

I say the Lords were unanimous, and indeed they were: all agreed A v UK must be followed. But Lord Hoffmann said in terms that he thinks Strasbourg has got this wrong; I think he’s right to say this if he thinks so, although I also think the logic of that is that he should also decline to follow Strasbourg – since the Human Rights Act only obliges him to take A v UK into account. His approach is interesting, though, and I especially liked the way he brought God into it (see paragraph 72). I have to say I have a fair amount of sympathy with him and with the Home Secretary’s probable frustration with this ruling. While it is almost certainly safe to disclose more than the Home Office currently does (I reckon this is almost always true), there must also be a risk that disclosure will give away details of informants or of information that is not known to the security services, and so endanger lives.

The judgment certainly makes it difficult to maintain the current control orders regime. But I expect several further rounds of litigation. Why? Because to say that controlees must be told enough about the allegations against them to be able to instruct lawyers is not the same as saying exactly how much needs to be disclosed in order to achieve that. If the Home Office decides to make further disclosures, I expect controlees to claim the material is insufficient; and I think it would be cowardly for the Lords, or the Supreme Court as it will be by then, to decline to give clear guidance. If AF has to go back to them a third time, that will be bad enough; to risk his having to come a fourth time would be judicial irresponsibility.

One more thought: I’m not satisfied by the way the Lords have dealt with interpretation under section 3 of the Human Rights Act. In the original case I criticised them for this, but they seem not to be reading (why not?) because they’ve gone and made the same mistake again. Lord Scott is the only one of them (see para. 95) to consider whether the special advocate procedure and withholding of secret material might be a fundamental feature of the 2005 Act, and so not capable of being “read down”. I don’t think his approach is correct: he seems to think the language of the provisions determines how they must be read (which, though it sounds paradoxical, is the wrong approach according to the leading case, Ghaidan). And he allows the parties to decide the issue for him. But the others are surely wrong not even to think about the point.