The End of the Control Orders Regime?

The House of Lords has today handed down an important judgment on the rights of individuals who are subject to control orders (“controlees”) to access information which has been relied upon by the Home Office as justifying the imposition of the orders – Secretary of State for the Home Department v AF & Ors [2009] UKHL 28. The judgment was concerned, in particular, with whether the process by which the courts supervise the application of control orders under section 3(10) of the Prevention of Terrorism Act 2005 was compliant with the controlee’s rights under Article 5(4) (right to take proceedings to determine lawfulness of detention) and Article 6 (right to a fair trial). That judicial supervision process had historically operated so as to a create a situation where the Secretary of State could put before the court information relating to the imposition of the control order but the controlee would not himself be able to access that information. The justification for operating the process in this way was that there would be cases where disclosing the particular information to the controlee would itself be contrary to the public interest, particularly by reason of the risks to national security posed by the disclosure.


The House of Lords has now held that denying the controlee access to information which is relied upon by the Secretary of State in the context of the section 3(10) process is incompatible with the controlee’s rights under Article 5(4) and 6. In reaching this conclusion, the House of Lords clearly considered themselves to be bound by a recent judgment of the ECtHR in A and Others v United Kingdom (Application No 3455/05 – cf. the earlier judgment of the House of Lords in Secretary of State for the Home Department v MB and AF [2007] UKHL 46; [2008] AC 440 which was decided before the A case). The result of their Lordship’s judgment is that section 3(10) must now be read down so as to produce a result whereby controlees are entitled to access information relied upon by the Secretary of State in the course of the judicial process. In light of the judgment, there must be serious questions as to whether the control orders regime can continue to operate, at least in its existing form. 11KBW’s Cecilia Ivimy appeared on behalf of the Secretary of State for the Home Office. Michael Supperstone QC appeared as a Special Advocate.