BX v Secretary of State for the Home Department

This is an appeal from the order of Collins J dated 12 November 2009 declining to grant an application for an oral hearing and interim injunctive relief in judicial review proceedings. An order for the anonymity of the appellant was made in the High Court under CPR rule 76.19 and that anonymity will continue. The appellant will be referred to as BX. Although events have overtaken the notice of appeal and BX seeks no specific order from the court, the appeal raises issues both of principle and practice in relation to the modification of a non-derogating control order made under section 7 of the Prevention of Terrorism Act (“PTA”) 2005. In summary the questions this court is invited to resolve are:

By section 1(1) and 1(2) PTA 2005 the Secretary of State may make a “non-derogating” control order against an individual which “imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” provided that it does not impose obligations that “are incompatible with the individual’s right to liberty under Article 5 of the Human Rights Convention”.

The Secretary of State may make such a control order if (section 2(1)) he:

“(a)

has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b)

considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on the individual.”

The obligations which may be imposed are, by section 1(3), those which the Secretary of State considers “necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity”. They may include under section 1(4):

“...(e) a restriction in respect of his place of residence...;

…(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom...”,

and, under section 1(5), “in particular...a requirement on him to remain at or within a particular place or area...”

Supervision by the Court

By section 3(1), the Secretary of State may (a) make a control order with the permission of the court, or (b) certify that the order is required so urgently that it is made without permission. When, as in BX’s case, an application for permission is made to the court (which may, by section 3(4), be made at a without notice hearing) “the function of the court is to consider whether the Secretary of State’s decision that there are grounds to make that order is obviously flawed” and if the court gives permission it “must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made” (section 3(2)(a) and(c)). Section 3(7) and (7A) requires that the controlled person is given the opportunity to make representations about directions already made and further directions sought, within 7 days after notice of the control order has been delivered to him under section 7(8). At the inter partes hearing directed under section 3(2)(c) the function of the court is, under section 3(10), to determine whether the Secretary of State’s decision under section 2(1) is flawed. When deciding whether a decision of the Secretary of State is flawed (subsection (3)) or obviously flawed (subsection (2)) the court must act according to judicial review principles (section 3(11)). The court may, having made its determination at the section 3(10) hearing, (a) quash the order, (b) quash one or more of its obligations, or (c) give directions that the order be revoked or modified, and in every other case order that the control order shall continue in force (section 3(12) and (13)).

Section 7 makes provision for the modification of a control order on the application of the controlled person, or by the Secretary of State with or without the controlled person’s consent. By section 7(2) the Secretary of State may:

“...(d) make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.”

but may not make any modification whose effect would be to impose a “derogating obligation” (section 7(3)).

Appeals

Section 10 makes provision for appeals. Section 10(1) gives to the controlled person the right to appeal against (a) the renewal of a non-derogating control order or (b) the modification of an obligation imposed without the consent of the controlled person. Section 10(5)-(8) provides:

“(5)

The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise), or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was flawed—

(a)

in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity; and

(b)

in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose.

(6)

In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review.

(7)

If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are—

(a)

power to quash the renewal of the order;

(b)

power to quash one or more obligations imposed by the order; and

(c)

power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(8)

In every other case, the court must dismiss the appeal.”

Jurisdiction

Section 11 states in its material parts:

“(1)

Control order decisions and derogation matters are not to be questioned in any legal proceedings other than—

(a)

proceedings in the court; or

(b)

proceedings on appeal from such proceedings.

(2)

The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to proceedings all or any part of which call a control order decision or derogation matter into question.

(3)

No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.

(4)

....

(5)

The Schedule to this Act (which makes provision relating to and for the purposes of control order proceedings and proceedings on appeal from such proceedings) has effect.

(6)

In this Act “control order proceedings” means-

…..

(g)

proceedings on an appeal under section 10;

(h)

proceedings in the court by virtue of subsection (2);...

(7)

In this section “control order decision” means—

(a)

a decision made by the Secretary of State in exercise or performance of any power or duty of his under any of sections 1 to 8 or for the purposes of or in connection with the exercise or performance of any such power or duty;

(b)

a decision by any other person to give a direction, consent or approval, or to issue a demand, for the purposes of any obligation imposed by a control order; or

(c)

a decision by any person that is made for the purposes of or in connection with the exercise of his power to give such a direction, consent or approval or to issue such a demand.

(8)

...”

“Court” is defined in section 15(1) PTA 2005, in the case of a controlled person whose principal place of residence is in England and Wales, as the High Court.

CPR Part 76

Part 76, rules 1-34, made under powers conferred by the Schedule to the 2005 Act, paragraph 4, relate to proceedings taken under the Act. Part 76 contains provisions in Part III for permission applications and appeals to the High Court relating to non-derogating control orders, in Part IV for appeals to the Court of Appeal and, generally, in Part V for the handling of “closed material”, the conduct of closed and open hearings, and the appointment of a special advocate to assist the controlled person and the court in closed hearings.

There is no requirement upon the Secretary of State either under the PTA 2005 or Part 76 to provide the controlled person with any particular notice of implementation of a modification made under section 7(2)(d). The effect of section 7(8) is that the modification will bind the controlled person only when a notice setting out the terms of the modification has been delivered to him personally.

Part 52 CPR applies to an appeal under section 10 subject to savings made by rule 76.12. There are no rules enabling an application for interim relief.

On 29 October 2009 Collins J, having considered the Secretary of State’s application under section 3(1)(a) PTA 2005 together with its open and closed material, gave permission to make a non-derogating control order in respect of BX. The application made clear that the Secretary of State considered it necessary for national security reasons to relocate BX from London to an identified town approximately 200 miles distant but that, at the time of the application, no address had been found. It was proposed to the judge that the address of the property to which BX was to be relocated, once found, should be added administratively after service of the order. Collins J declined to grant an order in such terms since the later addition of the address would not then amount to a modification, and could not itself be appealed. Thus the order approved and delivered on 30 October required BX to reside at an address in London. The provisions of section 3(2)(c), 3(7) and 3(7A) PTA 2005 (paragraph 5 above) took effect so as to place the order on a timetable to review under section 3(10). However, the events which follow in this summary all occurred before the hearing to review the control order took place.

Eleven days later, on 10 November 2009, the Secretary of State served under section 7(2)(d) and (8)(c) a notice of modification requiring BX to reside at an address in the town identified. The effect of the modification was postponed to 13 November 2009 to enable BX to prepare for the move or, if he wished, to lodge an appeal before he was moved. In anticipation of an interlocutory application the Special Advocate Support Office was notified of the impending relocation. By email on 10 November BX’s solicitors sought from the Secretary of State (i) an undertaking that BX would not be relocated until a court had considered his challenge on Article 8 grounds; (ii) a statement of reasons for the modification; and (iii) a national security statement justifying the decision to impose the control order. The Treasury Solicitor replied on the same day declining to give the undertaking, but there was attached to the reply: the open witness statement of Susan Hadland dated 9 November 2009, to which her first witness statement in support of the control order was exhibited, and the open security service assessment of the national security case. BX’s case is that the disclosure then made by the Secretary of State was insufficient to enable him to know the national security case he had to meet.

On 11 November 2009 BX lodged an application for judicial review of the decision to relocate him together with applications for urgent consideration and interim injunctive relief. On the same day he lodged a notice of appeal against the modification under section 10(1)(b) PTA 2005. The Secretary of State, in anticipation of a without notice application, lodged written submissions inviting the court to decline to grant relief pending the listing of an early directions hearing in the section 10 appeal. The Secretary of State asserted, “Given the terrorism-related risk that BX is assessed to present, it was not considered possible to give him 7 days’ notice of the intention to relocate which has, recently, been the normal Home Office policy for relocations.” Attention was drawn to the decision, made in similar circumstances, of Blake J in BM and Others v. Secretary of State for the Home Department [2009] EWHC 1159 (Admin) to which reference is made below at paragraph 29. The applications within the claim for judicial review were considered by Collins J on the papers on 11 November when he wrote explaining his decision to dismiss them:

“While I think it is arguable that the court has power to grant an injunction against the putting into effect of a modification…..I recognise the force of the decision of Blake J in BM refusing a similar injunction. There are...powerful arguments that the effect of s. 11(1)(a) read with 11(6)(g) do suggest that the correct route to challenge is via the appeal. In fact, I think judicial review is not the correct route.

I appreciate that there are likely to be arguments about disclosure and it may well be necessary to extend it on the appeal. But the material before me persuades me that there are very strong grounds for requiring the move out of London and the choice of [town] is reasonable. BX’s remedy lies in a speedy appeal. A special advocate should be appointed quickly and such application as may be needed for further disclosure can be made speedily…

In all these circumstances, I am not prepared to grant the injunction sought.”

BX sought on 12 November 2009 to renew his application at an oral hearing and, in the alternative, applied for an oral interlocutory hearing in the section 10 appeal. He sought an injunction to prevent his relocation before (i) having had an opportunity to make representations to the Secretary of State both as to the national security justification for the modification and as to the proposed interference with his Article 8 rights; and (ii) a hearing was held which complied with Article 6, including the appointment of a special advocate and disclosure of the evidence upon which the Secretary of State justified the modification. That application was also declined in writing by Collins J who expanded upon his views both as to jurisdiction and the merits:

“I have some sympathy with the applicant since it is apparent that the removal to [the town identified] will take place at great inconvenience to him and to his family. However, the scheme of the 2005 Act is that control orders and their contents can only be considered by the court in proceedings within s. 11. I am satisfied that my suggestion in BH that judicial review was possible before the modification was put into effect was wrong.

However, a modification appeal is a proceeding within s. 11 and the court does have power to grant any appropriate order. Nevertheless, the modification can only be stopped in advance if there are grounds for thinking that it may be a wrong use of the powers given by the Act. It is not appropriate at this stage to go into what can or cannot be disclosed. That would take time since, as the applicant’s advisers recognise, a special advocate would be needed to deal with the closed material.

The law provides a right of appeal against modification. Article 6 will then apply, but it does not arise at the interim stage. I am satisfied that the need for this modification and removal out of London is supported by the material I have seen. In those circumstances, despite the statements and the additional grounds, an oral hearing could not achieve anything. The applicant’s only remedy is to seek to appeal against my order.”

It is against this order that BX now appeals with the permission of Moses LJ. We have not been invited to view the closed material. The challenge is to the judge’s decisions to refuse to hold an immediate (or nearly immediate) Article 6 compliant inter partes hearing and his refusal to grant interim relief in the judicial review proceedings.

BX was relocated on 13 November. He was arrested on 9 December 2009 for alleged breaches of the control order and remains in custody awaiting trial. In the meantime BX’s appeal against the modification proceeded to a disclosure hearing on 2 December 2009 and further disclosure has been made. The hearing of the appeal was listed for 22 January 2010 but has been adjourned to a date likely to be in April or May.

It is argued that there is no express ouster of the jurisdiction of the High Court to review decisions amenable to a public law challenge. While it is recognised that section 10 PTA 2005 provides an alternative means of challenge to the Secretary of State’s decision, it is a challenge which, in effect, can only be mounted after the decision has been implemented and provides the appellant with no suitable alternative remedy. BX should have been given urgent access to the court at an oral hearing, either in the judicial review proceedings or in the section 10 appeal, to prevent the implementation of a decision which, it would be argued, determined his civil rights and/or interfered with his right to a private and family life under Article 8.

Mr Fordham QC, for BX, submitted that the process adopted by the Secretary of State and the court was procedurally unfair. Article 6 applied both to the administrative process of modification and to the applications to the court. Fairness required that before the modification was implemented BX should have received:

Mr Fordham acknowledged that the requirements of procedural fairness would depend upon the urgency of the modification. He argued that if, in any particular case (of which he submitted this was not one), urgency required implementation of the modification before representations could be made to the Secretary of State, and before the controlled person could be given access to a court, the controlled person should be entitled in any event to speedy access to the court with the appointment of a special advocate and disclosure.

The Secretary of State acknowledges the jurisdiction of the High Court to grant an interim injunction, whether in judicial review proceedings to challenge the section 7(2)(d) decision to make a modification, or upon an interlocutory application made in the appeal against that decision under section 10(1). However, the generation of separate judicial review proceedings is undesirable and inappropriate. The convenient and preferable means of access to the court is, submits Mr Eicke, by way of interlocutory application in the appeal.

The Secretary of State relies on the statutory power given by section 7(2)(d) PTA 2005 to impose a modification without notice to the controlled person when it is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. The statutory context envisages urgency. The urgency of the requirement for modification is incompatible with BX’s claim to enjoy a right of challenge to the exercise of that power by means of a full inter partes merits hearing in advance of its implementation.

Since this was such an urgent and interim measure pending a speedy appeal hearing it did not determine BX’s civil rights; accordingly, Mr Eicke submits, Article 6 did not apply to the interlocutory application made by BX. Alternatively, Article 6 applied only to an extent which was compatible with the nature and purpose of the interim measure pending appeal. Before disclosure of the closed material could be considered a disclosure hearing under CPR rule 76.29 would be required. The issue for the judge was whether on the material before him BX had a strong arguable case that the modification decision was flawed. Collins J was clearly persuaded that the modification was both imperative and urgent. In the circumstances, he was right to decline to hold an oral inter partes hearing and to dismiss the application, while inviting an application for directions leading to early disclosure and appeal hearings.

A “control order decision” includes, by section 11(7)(a) PTA 2005, a “decision made by the Secretary of State in exercise or performance of any power...under any of sections 1 to 8”. By section 11(1) control order decisions “are not to be questioned in any legal proceedings other than (a) proceedings in the court or (b) proceedings on appeal from such proceedings”.

I agree with both parties that there is in the terms of section 11 no explicit or even implicit attempt to exclude the jurisdiction of the High Court judicially to review a control order decision. In the present context, section 11(1)(a) does not limit the term “proceedings in the court” to an appeal against a modification under section 10(1)(b).

Section 7(1) Human Rights Act 1998 provides that a person claiming that a public authority has acted or proposes to act in a way which would be unlawful by section 6(1) of the Act (i.e. act in a way which is incompatible with a Convention right) may bring proceedings in “the appropriate court”. The effect of section 11(2) and section 15(1) PTA 2005 is that “the [High] [C]ourt is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to proceedings all or any part of which call a control order decision...into question”. It follows that the PTA 2005 anticipates a challenge in the nature of a claim for judicial review to the lawfulness of control order decisions outside the ambit of an appeal under section 10. Such a claim would, however, by section 11(4)(h) be subject to the provisions of the Schedule to the 2005 Act and CPR Part 76 which relate to the handling of closed and open material and special representation.

The essence of BX’s claim for judicial review was pleaded at paragraph 1.8 of his grounds for review:

“The forced relocation of BX from London where he has resided since 1992, where his wife and step son reside, where he has accommodation available with his family and employment and to a place where he has never been before, where he has no ties, knows no-one, there is no [shared] community and where he will as a consequence face acute social isolation will inevitably have a grave impact on his rights under Article 8 ECHR and which in combination with the other obligations of the Control Order constitute a deprivation of liberty.”

In my view, BX’s claim for judicial review was expressly permitted by section 11(2) of the 2005 Act.

However, it also seems to me, as the parties now agree, that whether the claimant is seeking a pre-emptive injunction or an order that the status quo ante be reinstated, the High Court’s power to grant an injunction does not depend upon the issue of a claim for judicial review. In appropriate circumstances the court may be invited under CPR Part 25 to exercise its power to grant an interlocutory injunction given by section 37(1) Supreme Court Act 1981. While there is no express provision in the 2005 Act or Part 76 for the making of an application for an interlocutory injunction in the course of a section 10 appeal, there is no reason in principle why such an application should not be made.

In BM and Others v. Secretary of State for the Home Department [2009] EWHC 1159 (Admin) Blake J was faced with a similar procedural dilemma. A control order had been made on 30 April 2009. A timetable was set for a section 3(10) review of the control order in January 2010. On 8 May 2009 the Secretary of State gave notice of a modification to relocate BM. On 15 May 2009 BM lodged an appeal against the modification. When the Secretary of State declined to defer implementation of the modification pending a section 10 appeal, BM issued a claim for judicial review and sought an interim injunction. Blake J declined to grant an injunction in the judicial review proceedings, directed an early hearing of the section 10 appeal and gave further directions as to disclosure and service of evidence. The judge heard, amongst others, arguments to the effect that a section 10 appeal was incapable of resolving the issue whether relocation on the grounds of national security was a proportionate interference with the claimant’s Article 8 rights because the national security test had already passed the permission stage for the original order (see AV and AU v. Secretary of State for the Home Department [2008] EWHC 1895 (Admin); [2009] 1 WLR 2318, per Mitting J at §7); and that without immediate judicial scrutiny there would not even be an examination for the existence of an obvious flaw in the Secretary of State’s justification for relocation, the test which had been applied under section 3(2)(a) at the permission stage for the original control order.

Blake J recognised at §11 of his judgment that unless he intervened the claimant would be subjected to an intrusive modification to his obligations under the control order without there having been any consideration whether the change was “obviously flawed”. Secondly, it appeared that the closed material which supported the original grant of permission was “substantially different from” that which supported the modification. He therefore “briefly” examined the closed material and sought assistance from a special advocate. His conclusion (at §12(ii)) was that the closed material “was well capable of justifying the interference in family life that the relocation required represented, as a measure necessary in the interests of national security”.

The judge observed at §12 (iii) of his judgment:

“The test for granting an injunction against a public authority exercising public law powers is [a] more stringent test than mere balance of convenience, and would require a strong arguable case as to prospects of success. On the assumption that the reliability and sufficiency of the material would be examined in a s. 10 appeal within an expedited time scale of under 28 days, with the assistance of more detailed submissions from a special advocate, its nature was such as did justify the refusal of injunctive relief against implementation of the relocation requirement until the hearing of such an appeal.”

I accept the submission made on behalf of the Secretary of State that while the judge remains engaged in a consideration of the balance of convenience the balance is assessed in the context of the exercise by the Secretary of State of an important public duty. In Smith v. Inner London Education Authority [1978] 1 All ER 411 at page 422 Browne LJ said:

“...where a defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the “special factors” affecting the balance of convenience which are referred to by Lord Diplock in American Cynamid Co v. Ethicon Ltd [1975] 1 All ER 504 at 511, [1975] AC 396 at 408.”

(See also to similar effect Sierbein v. Westminster City Council [1987] 86 LGR 431 at pages 439-440, per Dillon LJ and R v. Transport Secretary, ex parte Factortame Ltd (No. 2) [1990] 3 WLR 818 at page 870F-871A, per Lord Goff.)

Mr Fordham was not disposed to quarrel with Mr Eicke’s submission that upon an interlocutory application to the court the applicant would need to put forward a strong arguable case against modification, provided it is recognised that an interference with fundamental rights and freedoms would also be involved in the balancing exercise. I accept this submission. In my view the distinction being drawn in the cases cited is the nature respectively of the interests at stake. In a private dispute the interest on both sides is personal. Here, the Secretary of State is acting in the public interest. While BX is defending important individual rights they are qualified, to the extent that the measure taken is proportionate, by the demands of a national interest.

On the exercise of jurisdiction, Blake J said at §§13-15:

“13.

In my judgment, there is an urgent need of an effective hearing where the court could scrutinise the justification for the interference in open and closed material and all the material that the claimant would want to marshal in response to it. The review of the decision to approve the control order at all was not going to be quick enough to perform that function. Separating a father from his children (and vice versa) for eight months without judicial supervision and appropriately intensive review in the light of the subject matter is not an acceptable timescale, especially where the interests of the child are concerned.

14.

I do not accept Ms Rose’s submission that the s. 10 appeal is incapable of providing the opportunity for the court to reach its own conclusion on legality, justification and proportionality. Although a modification appeal may assume the legitimacy of some terms of the control order on national security grounds, the question of whether nothing less than relocation for the time being was necessary on national security grounds could be sufficiently explored and determined as a distinct issue in the s. 10 appeal that can in these unusual circumstances be heard in advance of the full review itself. In my judgment, approaching the powers and function of the court under s. 10 in the light of the engagement of human rights principles, it would not be sufficient to justify the disputed particular requirement of relocation to [the named town] that the Secretary of State’s reasons to restrict liberty in seeking a control order at all may not eventually turn out to be flawed. A hearing dedicated to the particular disputed requirement that is the issue on the appeal can be directed to the crucial material on which reliance is placed by both sides in open and closed.

15.

As long as an effective appeal can be arranged within a reasonable period of time, I can see no advantage to bringing parallel proceedings for judicial review. Indeed, it may well be an abuse of the process if the judicial review sought to replace or circumvent the relevant tests in the statutory scheme. The fact that the statutory scheme did not envisage suspensive relief of modifications pending an appeal might be a pointer against injunctive relief in judicial review, although I accept judicial supervision of the legitimacy of the executive’s actions might justify the statutory scheme being supplemented where there was no other way of discharging the court’s duties under s. 6 Human Rights Act 1998.”

Thus, in Blake J’s judgment, although the High Court enjoyed concurrent jurisdiction to consider a claim for interim relief in judicial review proceedings and to consider, in the course of a section 10 appeal, an application for an interlocutory injunction, it would rarely be appropriate to institute parallel proceedings. The right course was to apply in the appeal proceedings for an interlocutory injunction and/or an expedited section 10 hearing.

It is submitted in writing on behalf of BX, as it was submitted on behalf of BM, that the court’s scrutiny is circumscribed by the terms of section 10(5)(a) PTA 2005 (see paragraph 7 above). I do not accept that in making the judgement whether the Secretary of State’s decision was flawed the court is required to ignore the impact of the decision upon the controlled person’s family and private life. Consideration of the controlled person’s Article 8 rights, and the interference which the modification will constitute, is an integral part of the process of assessment. In the words of Article 8.2 the interference must be “such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety...for the prevention of disorder or crime...or for the protection of the rights and freedoms of others” [emphasis added]. The court will be required at the appeal to assess whether the Secretary of State’s decision that the evidence established the need to impose a further obligation which interfered with the controlled person’s family and private life was flawed. At the interlocutory stage the Secretary of State’s decision will have embraced both the need for modification and the urgency of its implementation. An interlocutory application in the appeal will require a judgement whether the material placed before the court discloses a strong arguable case that the Secretary of State’s decisions were flawed, or, as Collins J put it, a wrong use or a misuse of power.

As I have observed, section 7(2)(d) PTA 2005 does not require the Secretary of State to give notice of his intention to impose a modification. The controlled person becomes bound by it only upon delivery of a notice to him personally (section 7(8)(c)). Furthermore, section 10(7), which requires the court to determine whether the Secretary of State’s judgment was flawed, appears to envisage that the modification has already been made. The Secretary of State recognises that without notice the controlled person might be subjected to a serious interference with his family and/or private life without prior judicial scrutiny. He has in most cases adopted the practice of giving 7 days notice enabling the controlled person to make his application to the court before the modification has taken effect.

Mr Fordham argues, however, that procedural fairness requires the Secretary of State to go much further. He relies upon the combined effect, as he submits, of the decisions and the reasoning of the House of Lords in R (Wright) v. SSHD [2009] UKHL 3; [2009] 1 AC 739 and Secretary of State for the Home Department v. AF (No. 3) [2009] UKHL 28; [2009] 3 WLR 74 . The effect of the Secretary of State’s decision may, depending upon the interval between the decision and the hearing of the appeal, amount to a determination of the controlled person’s civil rights including his right to employment, association and family life. If civil rights are engaged, Article 6 applies to the process. The controlled person must be given the opportunity to make informed representations. Before the Secretary of State considers making a modification he must have identified the justification for making it. Having identified the evidence justifying the modification the Secretary of State should disclose sufficient of that evidence, or the essence of it, to enable the controlled person to make informed representations and to give instructions. Should the controlled person wish to challenge the Secretary of State’s decision he should enjoy a right of access to the court with the advantage of such disclosure before the modification is implemented.

That there are some executive decisions affecting civil rights which should not be taken before the person affected has been provided with an opportunity to make informed representations is not in doubt. In R (Wright) v. SSHD [2009] UKHL 3; [2009] 1 AC 739 the claimants’ names had been placed, under a power provided by section 82(4)(b) Care Standards Act 2000, in a provisional list of people suspected of being unsuitable to work with vulnerable adults. They sought a declaration that the statutory power was incompatible with their Article 6 rights since it was to be exercised as follows:

“(4)

If it appears from the information submitted with a reference under subsection (1) that it may appear to be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall- (a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, provisionally include the worker on the list.”

The claimants had no opportunity to make representations before their names appeared on the provisional list. The process of receiving evidence and representations was frequently a lengthy one. By section 89, any relevant employer who knew or discovered that an employee or an applicant for employment was listed, provisionally or permanently, was prohibited from employing the worker. The effect of provisional listing was to deprive the worker of employment and the prospect of employment without providing the worker with the opportunity of making any contribution to the decision making process.

In the Court of Appeal ([2007] EWCA Civ 999; [2008] QB 422 at §106), Dyson LJ concluded that the scheme denied one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard. He concluded at §108:

“108 The essential defect in the first stage of the process lies in the fact that, as interpreted by the Secretary of State, the CSA does not allow the care worker in any circumstances to make representations before being provisionally included in the list. Although, for the reasons given earlier, I consider that article 6 is engaged in all cases it does not follow that a worker should be given the right to make representations in all cases. The Parliamentary intention of protecting vulnerable adults from the risk of harm from care workers must be respected. The right to a fair determination of a worker's civil rights does not require that the worker be accorded the right to make representations in all cases. Fairness requires a proportionate approach. A balance must be struck between the need to protect vulnerable adults from the risk of physical and psychological harm and the article 6 rights of care workers. There will be cases where the allegations of misconduct are so serious that, if they are true, the care worker is potentially a serious danger to vulnerable adults. In such circumstances the paramount need to protect vulnerable adults from real danger may require the care worker to be included in the list provisionally without being given an opportunity to meet the case against him or her before that step is taken. It will be a matter for the judgment of the Secretary of State to decide whether it is necessary to include a worker in the POVA list without giving him or her an opportunity to make representations. In making this judgment the Secretary of State must take into account all the circumstances of the case but in particular the gravity of the allegations. We were told that in many cases the care worker is not included in the list until the lapse of a considerable time after the date of the reference under section 82(1). This provides some support for the view that, unsurprisingly, a significant number of references do not raise issues which call for urgent and immediate decision. No reason has been advanced on behalf of the Secretary of State to justify the blanket denial to workers of an opportunity to make representations in all cases.”

In the House of Lords Baroness Hale, with whom their other Lordships agreed, said at §28:

“..in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with article 6(1), for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment.”

It was the danger of irreparable damage to employment rights to at least some, perhaps the majority, of care workers created by the statutory scheme which Baroness Hale considered (§22) constituted the risk of unjustifiable and irremediable interference with civil rights and, thus, engaged Article 6.

Dyson LJ held in the Court of Appeal that a declaration of incompatibility was not required because section 82(4)(b) could be read down. At §114 he said:

“114 I would therefore interpret section 82(4)(b) as requiring the Secretary of State to give workers the right to make representations before he makes a decision under paragraph (b) unless he reasonably considers that the resultant delay would place a vulnerable adult at risk of harm.”

Baroness Hale called this the “Wright exception”. At §29 she said:

“There may well be cases where the need to protect the vulnerable is so urgent that an “ex parte” procedure can be justified. But one would then expect there to be a swift method of hearing both sides of the story and doing so before irreparable damage was done...”

She was unable to accept that the scheme as operated with the “Wright exception” removed unfairness. On the evidence before the House of Lords in most of those cases to which the “Wright exception” had been applied there had still been delays of between three and six months between referral and provisional listing. Baroness Hale continued:

“The problem, it seems to me, stems from the draconian effect of provisional listing, coupled with the inevitable delay before a full merits hearing can be obtained. That cannot be cured by offering some of the care workers an opportunity to make representations in advance, while denying the opportunity to other workers who may have been just as unfairly treated by their former employers.”

The House of Lords made the declaration of incompatibility sought.

In Secretary of State for the Home Department v. AF (No. 3) [2009] UKHL 28; [2009] 3 WLR 74 the House of Lords, considering the Article 6 requirements of a review under section 3(10) of the 2005 Act, examined and applied the reasoning of the European Court of Human Rights in A v. United Kingdom (Application No. 3455/05); The Times, 20 February 2009 GC. A was a decision by the ECtHR on the reach and effect of Article 6 in the context of the right of a foreign national to challenge his detention under the Anti-terrorism, Crime and Security Act 2001. At §220 the view of the Grand Chamber was:

“220.

The court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied.”

At §59 of his opinion in AF (No. 3) Lord Phillips interpreted the effect of this passage as follows:

“59 …….I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

Furthermore, procedural fairness for the controlled person was not be measured by the strength of the closed case against him. Procedural fairness was not to be equated with a just result. At §§62 and 63 Lord Phillips identified the policy considerations in favour of the supremacy of a fair procedure even where the closed case provided overwhelming evidence of “reasonable grounds for suspecting involvement….in terrorism-related activity”. At §64 he continued:

“64 The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA . That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals.”

The House concurred with Lord Phillips. Thus, submits Mr Fordham, the Secretary of State must be aware from the outset of his consideration of the need for modification of a control order that he will have to disclose sufficient of the evidence relied on to justify his decision as will enable the controlled person to give meaningful instructions to his special advocate. Save where the national interest demands urgent action that disclosure can and should be made before the modification takes effect.

The decision in SSHD v. AF (No. 3) concerned a full merits review under section 3(10) PTA 2005 and there can be no doubt that the requirements of procedural fairness identified will apply with equal vigour to an appeal against modification under section 10(1)(b). We are, however, concerned not with the final hearing but with an interlocutory application made to Collins J well in advance of the hearing of the appeal. The question arises whether and, if so, to what extent Article 6 applied to that interlocutory stage. Conventionally, and until recently, it has been the view of the ECtHR that “[p]reliminary proceedings, like those concerned with the grant of an interim measure such as an injunction, are not normally considered to determine civil rights and obligations and do not therefore normally fall within the protection of Article 6” (Micallef v. Malta Application no. 17056/06, 19 February 2009, GC, §75). However, in Micallef the Court signalled a change of approach, the necessity of which was demonstrated by “circumstances where many Contracting States face considerable backlogs in their overburdened justice systems leading to excessively long proceedings” so that “a judge’s decision on an injunction will often be tantamount to a decision on the merits of the claim, even permanently in exceptional cases” (§79). Thus, what was formerly assumed to be an interim measure which did not in principle determine civil rights and obligations, may have acquired the effect of a determination. There are echoes here of Baroness Hale’s examination of the practical effect of the administrative provisional listing of care workers in R (Wright) v. SSHD.

In explaining its new approach the majority in the Grand Chamber said:

“83.

As previously noted, Article 6 in its civil “limb” applies only to proceedings determining civil rights or obligations. Not all interim measures determine such rights and obligations and the applicability of Article 6 will depend on whether certain conditions are fulfilled.

84.

First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention (see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §39, Series a no. 301-B; König v. Germany, 28 June 1978 §§89-90, Series A no. 27; Ferrazzini v. Italy [GC], no 44759/98, §§24-31, ECHR 2001-VII; and Roche v. United Kingdom [GC], no 32555/96, §119, ECHR 2005-X).

85.

Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.

86.

However, the Court accepts that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensible and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceeding at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question.”

Mr Fordham argues that where an appeal under section 10 may be many weeks away from the interlocutory application the administrative decision of the Secretary of State may have the effect of doing irreparable damage to the controlled person’s civil rights, particularly where, as here, BX’s pregnant wife and child could not be expected to move away from their family support network and BX would lose employment and the prospect of employment in a job he enjoyed. Such an effect amounts, submits Mr Fordham, to a determination of BX’s civil rights as contemplated by the ECtHR in Micallef; accordingly, the full range of fair trial safeguards should apply to the interlocutory application.

Mr Eicke conceded that Article 6 is engaged in section 10 appeal proceedings but submitted that BX’s civil rights were not ‘determined’ at the moment of the decision. The decision was provisional pending the hearing of the appeal which, it was recognised by the parties and the court, would be arranged speedily. Mr Eicke’s submissions were principally directed towards the requirements of fairness at the interlocutory stage in the context of the Secretary of State’s obligations under paragraph 4 of the Schedule to the 2005 Act. This was, he argued, an urgent case for modification. The only reason relocation was not approved at the permission stage was the judge’s concern that a suitable address had not at the time of the application been found. The Secretary of State gave sufficient particulars in the open material, and gave truncated but sufficient time for the controlled person to make representations to the Secretary of State and an application to the court, before the modification took effect. The open witness statement by Ms Hadland served on behalf of the Secretary of State on 10 November 2009 in justification for BX’s relocation adopted the national security assessment and her first witness statement of 29 October 2009. Ms Hadland’s statement of 29 October expressed the need to relocate BX as “a central part of the control order”. It was necessary “to prevent him from travelling abroad to engage in extremist activities…to disrupt the extremist network and to make it more difficult to…associate with other targets in the London area”. In her statement of 10 November Ms Hadland set out the Secretary of State’s understanding of the implications for BX’s employment and family life and, in her statement of 29 October she had expressed the Secretary of State’s willingness “to consider any evidence submitted…in respect of the impact the relocation has had on his personal life and/or familial circumstances”. At the time of service of the control order BX appeared to have been living at different addresses in London.

The open security statement served in support of BX’s relocation made the following averments amongst others: that BX had in 2007 travelled to Somalia for terrorist training; that were it not for the control order he may have travelled to Somalia in 2009; that he had been involved in “ongoing” financial and material support for Al Qaida in East Africa; that he had facilitated the travel of others to East Africa to attend terrorist training camps; that he continued to be a member of a network of extremists based in London; that BX had access to false travel documents; and that he continued to pose a threat to the UK and to UK interests overseas. At paragraphs 7 and 8 the statement asserted:

“7.

The Security Service assesses that…relocation from London is necessary at this time, primarily to restrict his ability to contact extremist associates and disrupt any plans for further terrorism-related activity. Further, the relocation will restrict [his] ability to travel to Somalia, possibly alongside his extremist associates, in order to engage in terrorism-related activity and restrict his ability to abscond.

8.

The Security Service assesses that in the absence of a move away from his associates and the London area the likelihood of [him] contravening the terms and conditions of his control order are significantly increased.”

The statement concluded:

“19.

The Security Service considers that the relocation is necessary and there are no other adequate measures which could be taken in order to protect the public from the risk posed by [BX]. If [BX] were to remain in London, albeit on a control order, it is assessed that any obligations, even those considered most disruptive, would not be sufficient to restrict [BX] from contacting extremist associates with a view to furthering his own, or that of his associates, involvement in terrorism-related activity. Further, the Security Service assesses that such obligations would not be sufficient to restrict [BX] from contacting his extremist associates, with a view to travelling oversees to engage in terrorism-related activity.

20.

The Security Service considers that relocating [BX] from London is the only way to sufficiently manage the risk that [he] poses, in combination with the other obligations imposed as part of [his] control order. As previously stated, [the identified town] was identified as being the most suitable place outside of the London area to which [he] could be moved.”

Mr Eicke disputed Mr Fordham’s analysis of the Secretary of State’s disclosure obligations under paragraph 4 of the Schedule to the 2005 Act and CPR Part 76 and the ease with which, as Mr Fordham had suggested, disclosure could be made at an interlocutory hearing. Paragraph 4(3)(d)-(f) of the Schedule provides:

“(3)

Rules of court made in exercise of the relevant powers must secure—

…(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

(e)

that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

(f)

that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest…”

The rules made under paragraph 4(3) include the following:

“Closed material

76.28

(1)

The Secretary of State –

(a)

must apply to the court for permission to withhold closed material from a relevant party or his legal representative in accordance with this rule; and

(b)

may not rely on closed material at a hearing on notice unless a special advocate has been appointed to represent the interests of the relevant party.

(2)

The Secretary of State must file with the court and serve, at such time as the court directs, on the special advocate –

(a)

the closed material;

(b)

a statement of his reasons for withholding that material from the relevant party; and

(c)

if he considers it possible to summarise that material without disclosing information contrary to the public interest, a summary of that material in a form which can be served on the relevant party.

(3)

The Secretary of State may at any time amend or supplement material filed under this rule, but only with –

(a)

the agreement of the special advocate; or

(b)

the permission of the court.

Consideration of Secretary of State's objection

76.29

(1)

This rule applies where the Secretary of State has –

(a)

…

(b)

applied under rule 76.28 for permission to withhold closed material.

.....

(6)

Where the court gives permission to the Secretary of State to withhold closed material, the court must –

(a)

consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but

(b)

ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest.

(7)

Where the court has not given permission to the Secretary of State to withhold closed material from, or has directed the Secretary of State to serve a summary of that material on, a relevant party or his legal representative –

(a)

the Secretary of State shall not be required to serve that material or summary; but

(b)

if he does not do so, at a hearing on notice the court may –

(i)

if it considers that the material or anything that is required to be summarised might be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter be withdrawn from its consideration, and

(ii)

in any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.

(8)

The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to the public interest.”

Mr Eicke correctly points out that it is the duty of the Secretary of State and of the court not to make or order disclosure of material when to do so would be contrary to the public interest. The effect of AF (No. 3) is to require the court not to order disclosure but to specify that disclosure which would be necessary to bring the section 3(10) or section 10 proceedings into compliance with Article 6. Should the open material not be sufficient to bring the proceedings into compliance the Secretary of State will be placed upon his election whether, in re-assessing the public interest, he should make further disclosure or abandon the factual assertion under consideration. In the present case, on 2 December 2009, I presided at a disclosure hearing in BX’s appeal proceedings. I viewed the open and closed material and received submissions from the special advocate and counsel for the Secretary of State (not Mr Eicke). Following submissions, my task required the following approach:

I gave a closed judgment on 9 December 2009. The Secretary of State was thus placed upon his election whether to give further disclosure of each of the factual allegations identified or not further to rely upon it in the modification appeal. We were informed by Mr Eicke that the Secretary of State elected to make and did make further disclosure on 14 and 15 January 2010 following undertakings as to confidentiality. Mr Eicke submits that it is not reasonable to require the Secretary of State, as Mr Fordham suggested, to anticipate what may be the outcome of a closed disclosure hearing. When applying paragraph 4 and Part 76.29 compatibly with Article 6, experience shows that detailed judicial examination may be and usually is required to ascertain both what degree of disclosure is necessary and the form in which it may be given. Mr Fordham in reply recognised the practical limitations imposed by the disclosure process but submitted that it served to emphasise the importance of limiting without notice modifications to those which were required by the urgency of the national interest and the need, even in those cases, speedily to fix a date for a full hearing inter partes.

In my judgment it is plain, for the reasons discussed at paragraph 24 to 27 above, that the High Court enjoys jurisdiction to entertain a claim for judicial review of a control order decision. That jurisdiction encompasses an application for urgent consideration and interim relief by way of an interlocutory injunction.

Nevertheless, it is equally plain that the High Court enjoys a similar jurisdiction to grant interlocutory relief in proceedings by way of appeal from the modification of a control order under section 10 PTA 2005. I agree with Blake and Collins JJ, for the reasons given by Blake J in BM and adopted by Collins J in the present case, that parallel proceedings for judicial review are, except in a rare case not so far identified, unnecessary and wasteful. In principle, where an adequate remedy otherwise exists judicial review is a last resort. Interlocutory application within section 10 appeal proceedings is, in my judgement, an adequate and sufficient alternative remedy. Should the controlled person wish to seek interlocutory relief on proper grounds, the appropriate route is by way of an application in appeal proceedings under section 10.

I accept Mr Fordham’s submission that where the Secretary of State is considering modification of the obligations imposed by a control order which engages or is likely to engage the controlled person’s Article 8 rights it is his duty to act in accordance with section 6 Human Rights Act 1998 and Article 8.2 ECHR. This is a duty which sits comfortably with the Secretary of State’s responsibility to act in the public interest under sections 1 and 2 of the 2005 Act, but requires the Secretary of State to give consideration to what is necessary in the public interest having regard to the interference which the modification may cause to the controlled person’s Article 8 rights. That obligation requires that the controlled person’s personal circumstances should be considered before the modification decision is made. I do not accept, however, that in every case the Secretary of State is bound, before implementation of the modification, to seek or to receive representations from the controlled person, either as to the degree to which, if at all, the controlled person’s Article 8 rights will be affected, or as to the security service assessment upon which the Secretary of State proposes to act. The nature of the security assessment and the evidence on which it is based may be such that the Secretary of State is required to act urgently in the public interest. In striking the balance between the public interest and the rights of the individual in such a case it may not be practicable to seek or to receive representations before acting. This will be the case where notice to the controlled person would itself put at risk the national security interest in the measure to be taken. Such situations were recognised by the House of Lords in R (Wright) v. SSHD and by the ECtHR in Micaleff v. Malta.

The Secretary of State’s practice in the majority of cases is to provide the controlled person with 7 days notice of an intention to implement a modification. We were not informed and would not expect to be informed what temporary measures can be taken during the notice period to protect the public against the risk identified. There have been, Mr Eicke was instructed, exceptional occasions when no notice has been given. In the present case 3 days notice was provided. I accept that an important consideration in the decision making process is whether immediate or less than immediate action is required in the public interest and, if the latter, what opportunity for representation or application to the court is consistent with the protection of that public interest. It has not, to my mind, been demonstrated that the Secretary of State’s use of his power under section 7(2)(d) has been, on this information, arguably arbitrary or excessive. The Secretary of State seems on the contrary to be giving consideration, on a case by case basis, to the need to strike the balance between the public interest in urgent action to prevent terrorism-related activity and the individual’s ability to make representations and to seek the intervention of the court. There is, it seems to me, a critical difference between the purely administrative imposition of the provisional listing in R (Wright) v. SSHD and the exercise of judgement by the Secretary of State upon the application of a statutory test of necessity, itself capable of challenge in an interlocutory application.

Nevertheless, I also accept that since the decision of the House of Lords in AF (No. 3) a further dimension has been added to the Secretary of State’s obligation to act fairly. He will know at an early stage whether the open material “consists purely of general assertions and the case against the [controlled person] is based solely or to a decisive degree on closed materials” (see paragraph 39 above). As Mitting J observed in BM v. SSHD [2009] 1572 (Admin) at §17 there is no necessity for the Secretary of State to base his modification decision solely upon the material which it then seems could be disclosed. The obligation to make disclosure only arises if and when the modification is challenged. Where, however, the modification decision will cause a significant interference with the controlled person’s home life and employment, it seems to me to be obvious that the Secretary of State will have in mind his disclosure obligations in the event of challenge. Should the Secretary of State embark on a without notice modification while harbouring an intention not to make such disclosure as will render the section 10 procedure compliant with Article 6, he will be open to an accusation of the arbitrary use or misuse of the section 7(2)(b) power. I would not expect the Secretary of State to be able to measure precisely the nature and degree of disclosure which he will have to consider after a fully argued disclosure hearing, but I would expect him to ensure that the judgement whether to make the modification order is made conscientiously, with his likely disclosure obligations in mind.

Should an appeal against modification be lodged and should an interlocutory application be made to the court in the appeal, it seems to me that the court will not be or will be unlikely to be in a position to embark upon an immediate hearing with the support of the special advocate. The judge cannot order disclosure which would be against the public interest and the assessment of the requirements of procedural fairness is usually a painstaking exercise. I agree with the assessment of Blake and Collins JJ that what is required is speedy notification to the Special Advocates Office and the setting of early dates for both the disclosure hearing and the appeal hearing. In the meantime, in the event of an application the court will be required to examine the open and closed material submitted by the Secretary of State in support of the modification. The judge will decide whether on that material the controlled person has a strongly arguable case that the Secretary of State’s decision was flawed and, accordingly, whether on balance the status quo should be maintained pending implementation of the modification, or the status quo ante should be restored pending the appeal hearing. In the light of these observations and the opinion I have expressed at paragraph 54, it may be, depending upon the material submitted to the judge, and the issues raised in the application by the controlled person, that the judge will wish to direct an oral interlocutory hearing for the purpose of exploring with the Secretary of State and the special advocate (1) the scope for further disclosure pending the full disclosure hearing, (2) the strength of the case for modification, and (3) the need for immediate implementation. This was the course adopted by Blake J in BM. By this means the court would ensure that judicial consideration of the administrative decision begins at an inter partes hearing as soon as possible and, in any event, before there is any question of the controlled person’s civil rights having been ‘determined’.

The question may arise in some cases whether the controlled person’s ‘civil rights’ are engaged by the modification and, in particular, whether interference with Article 8 rights of itself, or directly or indirectly, engages the controlled person’s civil rights. We were informed that the decisions of Mitting J in BM [2009] EWHC 1572 (Admin) and of Collins J in SSHD v. BC and BB [2009] EWHC 2927 (Admin) upon these and related issues are due for consideration in the Court of Appeal. We are not concerned in the present case to resolve such questions because Mr Eicke was content to assume, without conceding, for the purpose of his argument that the degree of interference with BX’s employment was sufficient to engage his civil rights. His argument was that the duration of interference with BX’s civil rights before the listed appeal hearing was not such as was capable of amounting to a determination of those rights within the meaning of §§83-85 of the ECtHR’s judgment in Micallef, so as to demand the full procedural safeguards of Article 6. Alternatively, if the effect of relocation was, for example, to determine BX’s right to pursue his preferred employment, the effectiveness of the urgent measure required would be lost, as contemplated by §86 of the judgment in Micallef, if the full rigour of Article 6 safeguards had to apply before the modification could take effect. In these circumstances the court was required to apply such procedural safeguards as were “compatible with the nature and purpose of the interim proceedings at issue” (see paragraph 44 above). Those safeguards were in place. The urgent need for BX’s relocation in the public interest, together with the impact of relocation upon BX’s family and private life as the Secretary of State understood them, were considered by an independent and impartial tribunal. Collins J was provided with all relevant material considered by the Secretary of State in the knowledge that an interlocutory application would be made leading to a speedy hearing of the appeal.

In the present case the modification took effect on 13 November 2009, the disclosure hearing was completed on 9 December 2009 and the hearing of the modification appeal was fixed for 22 January 2010.

I accept the case for the Secretary of State. It is unnecessary to reach a concluded view whether BX’s civil rights would have been or were in fact determined by his relocation. Collins J was provided with the material necessary to reach an informed judgment whether the Secretary of State’s decision was arguably flawed. He received written representations on behalf of BX. He concluded that the material before him established strong grounds for immediate relocation and recognised, when reaching his decision, that further disclosure would probably be required. The whole thrust of BX’s arguments was that there should be no relocation before a disclosure hearing had taken place in judicial review proceedings. That was, as the judge found, an untenable proposition, given the nature of the disclosure exercise and the contents of the closed material he had viewed. While the appellant asserted that this was not a case for urgent relocation he has, in my judgment, failed to make that assertion good. I have expressed the view at paragraph 55 above that an oral interlocutory hearing may be appropriate in such cases. That will be a matter for the judge considering the application. It may be that such a hearing would have been appropriate in the present case. However, the Secretary of State was both aware of the need for and was in fact prepared to make further disclosure under the guidance of the court. Had an oral hearing taken place it would inevitably have led to the same result, namely refusal of the application, and an invitation to the controlled person to apply for the appointment of a special advocate, for an early disclosure hearing and for an early listing of the appeal. I cannot in these circumstances find that the judge’s decision was wrong.

I would dismiss this appeal.

I agree.

I also agree.