Control orders continued: Jacqui Smith in an impossible position

by Carl Gardner on November 2, 2007

My lengthy post on the JJ case explained how the Home Secretary has now been limited to imposing curfews of 16 hours (or less) under her control order regime; I thought I’d better post again though, on the perhaps even bigger dent she’s suffered from the MB case the Lords ruled on at the same time.

The meat of this case was whether it’s a breach of the article 6 right to a fair hearing, if a control order is confirmed by a court on the basis of secret evidence not disclosed to the subject of the order or his lawyers. By four Law Lords to one, this time, the Home Secretary lost.

Again, Lord Hoffmann doughtily stood by her, arguing that, if the admission of secret evidence (for example from the Security Service) which the judge agrees cannot be fully disclosed for national security reasons is in breach of article 6, the Home Secretary is handed and impossible dilemma: she must risk national security either by disclosing the material, or by choosing to present a weaker justification for her order. Relying on the Chahal case, he sees the “special advocate” system that applies in control order cases (a special advocate is appointed by the court to respond to the secret evidence without communicating it to the controlee) as a complete answer to the dilemma. A fair hearing is, in his view, guaranteed.

This time, though, Hoffmann’s on his own. All the other Law Lords agree with Lord Bingham, that article 6 is breached where a control order cannot be justified on the basis of open evidence, but is mainly founded on secret, undisclosed evidence. So I’m afraid Jacqui Smith will be in precisely that impossible position Lord Hoffmann feared.

Lord Bingham initially wanted to declare the provisions of the Schedule to the Prevention of Terrorism Act 2005 incompatible with article 6, but in the end decided not to disagree with Lady Hale and the others, that the provisions can be read compatibly with article 6 so the cases should be remitted to the Administrative Court for the judge to rule on what if any closed evidence can fairly be relied on, and what further conditions or safeguards can be applied in order to achieve fairness.

It’s very interesting, this ruling on interpretation under section 3 of the Human Rights Act. Lady Hale is surely right to say that if a provision can be read Cheap NFL Jerseys compatibly, then that’s what the courts must do. There’s no room, as Lord Bingham suggested initially, to choose not to do so on policy grounds. But I wonder whether her approach can really be reconciled with the leading case on interpretation under the Human Rights Act, Ghaidan v Godin-Mendoza. Can’t you argue that the closed evidence and special advocate system a fundamental procedural feature at least of the control order regime? If so then the courts should not read them differently from the way Parliament intended. I’m not sure about this – maybe closed evidence is a fundamental feature, or maybe you could say procedural provisions like this could never be a fundamental feature of an underlying policy. But I do think the Lords should have addressed the “fundamental feature” issue – failure to do so risks taking us back to the days of R v A, before Re S first set the outer limits to interpretation under section 3. Ghaidan has changed a lot since then, but the outer limits still remain.

{ 2 comments… read them below or add one }

1 Shoobster October 25, 2008 at 06:14

Under the Prevention of Terrorism act can Jacqui Smith even make control orders? The bill gives powers that the Secetary of State may exercise within the limits of the act if HE wishes to do so? Is the use of the word “he” in the act a problem for Jacqui Smith or is this commonly used and will not cause a problem for her to exercise the powers of the home secetary?

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