MB, Re

This is the first hearing under section 3(10) of the Prevention of Terrorism Act 2005 ("the Act") in relation to the non-derogating control order made by the applicant under section 2(1) of the Act. The order was made against the respondent on 5th September 2005.

The short title to the Act is as follows:

By virtue of section 15(1) of the Act "terrorism" has the same meaning as in the Terrorism Act 2000, see sections 1(1) to (4) of that Act, namely:

The Act makes provision for two types of control order: derogating control orders, which impose obligations which are incompatible with the controlee's right to liberty under Article 5 of the European Convention on Human Rights ("the Convention") which can be made when there has been a designated derogation within section 14 of the Human Rights Act 1998 ("the 1998 Act"), and non-derogating control orders. The former are made by the court, the latter by the Secretary of State: see section 1(2) of the Act.

Section 2 deals with the making of non-derogating control orders. Subsection (1) provides that:

"Terrorism-related activity" is defined in subsection 1(9) as any one or more of the following:

The obligations that may be imposed by a non-derogating control order are:

An order has effect for 12 months but may be renewed with or without modifications by the Secretary of State for further periods of 12 months if he:

Subsection 2(9) provides that:

The court's supervisory role is dealt with in section 3. For present purposes, the relevant provisions are as follows:

The powers of the court to make derogating control orders are contained in section 4. For present purposes, it is sufficient to note that while the court may make such an order after a preliminary hearing without notice to the individual in question, there then has to be a "full hearing" at which the court may confirm or revoke the order. Subsection 4(7) provides that:

The schedule to the Act enables special rules of court to be made in respect of control order proceedings. Paragraph 4(3) states that such rules must secure --

The special rules are contained in Part 76 of the CPR. Rule 76.2 requires the court to give effect to the overriding objective in such a way as to "ensure that information is not disclosed contrary to the public interest." For the purposes of Part 76, the public interest is defined by Rule 76.1(4):

Rule 76.22 enables the court to conduct hearings in private and to exclude the controlee and his representatives from all or part of the hearing. Rule 76.24 describes the functions of the Special Advocate. Rule 76.26 modifies the general rules of evidence and enables to the court to "receive evidence that would not but for this rule be admissible in a court of law": see rule 76.26(4).

Rules 76.28 and 76.29 set out the procedure for dealing with closed material. In summary, the Secretary of State must apply to the court for permission to withhold the closed material from the controlee or his legal representatives and file a statement explaining his reasons for withholding that material. The enclosed material is then considered by the Special Advocate. If the Special Advocate challenges the need to withhold all or any of the closed material, the court must arrange the hearing to determine the issue, unless the Secretary of State and Special Advocate agree that the court may decide the issue without a hearing.

Rule 76.29(6) states that:

On 1st September 2005 the applicant applied to the court under section 3(1)(a) of the Act for permission to make a non-derogating control order against the respondent. Having recited the grounds in paragraphs (a) and (b) in subsection 2(1) the order explained that:

The obligations in the order (as amended in a number of minor respects by Ouseley J) were as follows:

The Secretary of State's application was supported by a witness statement from Mr Whalley, a senior civil servant employed by the Home Office, who was authorised to make the statement on behalf of the Secretary of State. Having referred to sections 2 and 3 of the Act, Mr Whalley said this:

The material delivered to the court included an open statement and supporting documents dated August 2005, a closed statement and supporting documents and an application for permission to withhold that closed material together with an outline summary of the reasons why the Secretary of State contended that the closed material should be withheld. So far as material, the open statement said this:

The remainder of the statement dealt with the various obligations imposed by the order and the reasons for imposing them.

On 2nd September Ouseley J considered the Secretary of State's application for permission on a without notice basis and, having concluded that the Secretary of State's decision that there were grounds to make the order was not "obviously flawed", granted permission under section 3(2)(b) of the Act for the Secretary of State to make the order against the respondent. The order, including amendments made (for the purposes of clarification) by Ouseley J, was made on 5th September and served on the respondent on 8th September 2005. As required by section 3(2)(c), Ouseley J gave directions for a hearing on 5th October, at which various procedural directions were made. Those directions were effectively superseded by further directions made on 17th November 2005. It is unnecessary to rehearse the detail because the various procedural steps required by the directions have now been completed.

Mr Supperstone QC, who was appointed together with Miss Farbey as Special Advocate, did not challenge the Secretary of State's application to withhold the closed material so there was no need for a hearing under Rule 76.29. Mr Supperstone also agreed with Mr Eicke, who appeared with Mr Burnett QC on behalf of the Secretary of State, that it would not be possible to serve a summary of the closed material on the respondent or his legal advisers which would not contain information or other material the disclosure of which would be contrary to the public interest. No summary of the closed evidence was therefore served on the respondent.

It is for the court to decide whether it is possible to serve the respondent with a summary which would not result in disclosure of the material contrary to the public interest: see CPR 76.29(6) above. Having read the closed material, I endorse the view shared by counsel that it would not be possible to serve a summary which would be capable of being in compliance with paragraph (b) in Rule 76.29(6). This is, therefore, a case where the respondent has not been provided with even a summary of the closed evidence against him.

In response to the control order, the respondent served a lengthy witness statement dated 6th January 2006, denying that he had any intentions to go to Iraq; explaining why he wished to go to Syria or, if he was prevented from going to Syria, to the Yemen; giving his account of the interviews at Manchester airport on 1st March 2005 and at Heathrow on the following day, and explaining the adverse effects of the obligations placed upon him by the order.

The Secretary of State responded on 17th February 2006 with a second open statement and supporting documents and a second closed statement and supporting documents. Shortly before the hearing the respondent served a second witness statement and his mother also served a witness statement. For the reasons given below, it is unnecessary to summarise the material contained in these later statements.

By the end of the hearing there was substantial agreement between Mr Starmer QC who, with Mr Bajwa, represented the respondent, and Mr Burnett and Mr Supperstone as to the role of the court in hearings under section 3(10), but sharp disagreement as to whether, in discharging that role, the court was able to give the respondent a fair hearing for the purposes of Article 6.1 of the Convention, which provides, so far as material, that:

Before turning to the rival submissions, it is important to be clear as to what is, and perhaps more importantly what is not, the function of the court in a hearing under section 3(10). The Act makes it clear that the court's role is purely supervisory: see sub-sections 3(10) and (11). Thus, the court is not itself deciding whether, on the totality of the evidence available as at the date of hearing, the criteria in paragraphs (a) and (b) in section 2(1) are met. It is judicially reviewing the Secretary of State's decisions made on or shortly before 1st September 2005 that the criteria in paragraphs (a) and (b) of section 2(1) were met and that the obligations imposed by the order were necessary under section 1(3). It follows that the court must consider whether those decisions of the Secretary of State were "flawed" upon the basis of the material that was put before the Secretary of State at that time.

Subsequent information, including in particular the respondent's answers in his first witness statement to the Secretary of State's open case and any further material contained in the second open and closed statements and the subsequent witness statements filed on behalf of the respondent, is irrelevant for the purposes of deciding whether decisions taken on or about 1st September 2005 were flawed applying judicial review principles. If there was any doubt about the permitted scope of a hearing under section 3(10), it would be resolved by contrasting the function of the court under subsections 3(10) and (11) with the function of the court at the "full hearing" into a derogating control order under section 4(7). At such a hearing the court itself decides, on all the evidence available as at the date of the hearing, and on the balance of probabilities, whether the controlee is or has been involved in terrorism-related activity and whether the imposition of obligations upon him is necessary for purposes connected with protecting members of the public from a risk of terrorism.

Mr Burnett accepted that the respondent was entitled to the benefit of the guarantee of a "fair hearing" applicable to civil proceedings under Article 6.1 because the respondent's rights to respect for his private life and his home under Article 8.1 were engaged. It will be recalled that obligation (6) in the control order requires the respondent to permit police officers and persons authorised by the Secretary of State to enter and search his residence at any time. Interference with the respondent's rights under Article 8.1 may be justified under Article 8.2 if it is necessary in the interests of national security, but a balancing exercise has to be carried out, and Article 6.1 entitles the respondent to a fair hearing before an "independent and impartial tribunal" in the determination of his civil rights under the Convention.

That concession by Mr Burnett was rightly founded upon the conclusion of the House of Lords in R (McCann) v Manchester Crown Court [2003] 1 AC 787 [2002] UK HL 39, that a defendant in proceedings for an anti-social behaviour order (ASBO) which, inter alia, prevented him from entering the Beswick area in Manchester, was entitled to the fair trial guarantee under the civil limb of Article 6.1 because his Article 8 rights were engaged: see Lord Steyn's speech at paragraph 29 and Lord Hope's speech at paragraph 80. Lord Hobhouse and Lord Scott agreed with Lord Steyn and Lord Hope (paragraphs 116 and 117). They also agreed with Lord Hutton, who in paragraph 112 of his speech reserved his position as to whether Article 6.1 was engaged. However, he did so upon the basis that insofar as the ASBO prohibited the defendant from using or engaging in any abusive, insulting, offensive, threatening or intimidating language or behaviour, there was no civil right under domestic law to engage in such behaviour. He acknowledged that:

See also in this context the speech of Lord Nicholls, with which the remainder of their Lordships agreed in Re: S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291 [2002] UK HL 10, at paragraphs 70 and 71.

Although the present case is concerned with the respondent's Article 8 rights, it is important to remember the breadth of obligations that may be imposed on an individual by a control order. The list of possible obligations in subsection 1(4) is not exhaustive. An order may include any obligations that the Secretary of State considers necessary for purposes connected with preventing or restricting the controlee's involvement in terrorism-related activity: see subsection 1(3), and it is immaterial whether that involvement (which the obligation seeks to prevent or restrict) is connected with matters related to the Secretary of State's grounds for reasonable suspicion: see subsection 2(9).

As the House of Lords and House of Commons Joint Committee on Human Rights pointed out in paragraph 33 of its Twelfth Report of Session 2005-06 (HL Paper 122, HC 915):

The Joint Committee also expressed the view that the obligations which had been imposed in most of the other non- derogating control orders which have been made were "so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5.(1) [of the Convention]" (see paragraph 38).

That issue does not arise in the present case since it is common ground that the obligations imposed upon the respondent by this particular control order are not so restrictive as to engage Article 5.1. The Joint Committee further concluded, in agreement with the view of the European Commissioner for Human Rights (report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom on 4th to 12th November 2004, 8th June 2005, Commission DH (2005) 6) that at least some of the non-derogating control orders that" had been imposed amounted to the determination of a "criminal charge" against the individuals in question so that they were entitled to the full set of guarantees in Article 6 (see paragraphs 50 to 52 of the Joint Committee's report).

If the matter had been free from authority I would have had considerable sympathy for that view and with the Committee's reasoning in paragraph 51 of its report. However, in A & Others v Secretary of State for the Home Department [2004] QB 335 one of the many issues considered by the Court of Appeal was whether the proceedings under Part 4 of the Anti-terrorism Crime and Security Act 2001 ("the 2001 Act") which made provision for the detention of suspected international terrorists were civil or criminal for the purposes of Article 6. In the context of the appeals from the Special Immigration Appeals Tribunal (SIAC), in which very many issues were canvassed, the Article 6 point was regarded as a subsidiary one and perhaps this explains why it was dealt with quite shortly by Lord Woolf CJ, with whom Brooke LJ and Chadwick LJ agreed, in paragraph 57 of his judgment, as follows:

Mr Starmer and Mr Supperstone, who both submitted that proceedings under section 3 of the Act were criminal rather than civil, applying the threefold test in Engel v Netherlands (No 1) [1979] 1 EHRR 647 at paragraphs 81 and 82, acknowledged that Court of Appeal's decision in A was binding upon me, unless there was some basis upon which the regime under Part 4 of the 2001 Act could be distinguished from the regime under section 3 of the Act. Although there are differences between the two statutory schemes (see below), since the former authorised detention and the latter does not, there is no relevant distinction for the purpose of deciding whether the present proceedings are civil or criminal. Although the Court of Appeal's decision in A was reversed by the House of Lords (see [2005] 2 AC 68) upon the basis that section 23 of the 2001 Act was incompatible with Articles 5 and 14 of the Convention, the House of Lords did not have to consider the Article 6 point. It follows that I am bound to conclude that these proceedings are civil for the purposes of Article 6.

For the sake of completeness, I should add that both Mr Starmer and Mr Supperstone accepted that the proceedings were classified as civil not criminal proceedings in domestic law (the first Engel criterion). They relied in particular upon the second criterion and submitted that the allegation against the respondent was, in substance, that he engaged in criminal conduct of a very serious kind. When considering the second criterion in Engel much will depend upon the precise "terrorism-related activity" in which the controlee is suspected of having been involved. In many cases such activity may amount to a criminal offence: see the actions falling within subsection 1(2) of the 2000 Act (above) and the new offences contained in the Terrorism Act 2006 ("the 2006 Act"). In the present case, however, it is questionable, even looking at the closed material, whether the respondent's activities in March 2005 would have amounted to a criminal offence (assuming that the Secretary of State's suspicions could be proved to the criminal standard of proof) at a time when section 5 of the 2006 Act had not been enacted. Moreover, when the third Engel criterion is considered, the obligations imposed by this control order are much less intrusive than the obligations which have been imposed in most of the other cases under section 3 of the Act: see the Schedule of Obligations which have been imposed on "most but not quite all" of the controlees contained in Annex 2 to the First Report of the Independent Reviewer pursuant to section 14(3) of the Act, dated 2nd February 2006. I appreciate that the third Engel criterion requires the court to "take into consideration the degree of severity of the penalty that the person concerned risks incurring" (my emphasis) (see paragraph 82). However, the severity of the obligations which are actually imposed cannot be disregarded as wholly irrelevant.

In support of his submission that proceedings under section 3 of the Act were civil, not criminal, Mr Burnett relied, in addition to the Court of Appeal's decision in A (above) upon the House of Lords decision in McCann (above), that proceedings leading to the making of an ASBO did not involve a criminal charge for the purposes of Article 6. Since I am bound by the decision in A in any event, a detailed discussion of this issue in this judgment would serve no useful purpose. I would merely say that if I had not been bound by the decision in A, I would have wished to consider whether, in applying the second criterion in Engel, a distinction can and should be drawn between an allegation that an individual has been engaged in "anti-social behaviour" and an allegation that he has been involved in "terrorism-related activity". As a matter of first impression, the latter allegation would appear to be far more serious and more closely akin to an allegation of criminal behaviour, hence section 8 in the Act which provides (in part):

I would also have wished to consider whether, in applying the third criterion in Engel, the obligations which may be imposed on a controlee under subsections 1(3) to (7), bearing in mind subsection 2(9) above, are potentially so severe in their effect upon the controlee that they amount to a penalty, even though they are imposed for the purpose of prevention not punishment. The restrictions imposed by the ASBO in McCann upon activities that were prima facie lawful were relatively limited (a prohibition upon entering a particular area in Manchester). This must be contrasted with the obligations that have been imposed on most of other controlees, which have been described by the Independent Reviewer as falling "not very far short of house arrest" (see paragraph 43 of his Report). I would pose the question, is there no limit to the severity of sanctions that may be imposed in civil proceedings without the safeguards afforded by Article 6.2 to 6.3 of the Convention if the purpose of the sanction is said to be prevention, not punishment? What if the state's ability to prosecute is due, at least in part, to a policy decision not to admit certain types of evidence, eg, intercept evidence, in criminal trials? I would reserve my position as to whether the ASBO regime is distinguishable from the control order regime in these, and other, respects which merit further consideration.

Although numerous authorities were cited by the parties, the applicable principles are clear. Where the initial decision determining the individual's civil rights and obligations is taken by an administrator (in the present case the Secretary of State) who is not independent:

When considering whether conventional judicial review was adequate in the Begum case, Lord Hoffmann referred in paragraph 51 to the decision of the European Court of Human Rights in Bryan v United Kingdom [1995] 21 EHRR 342:

When considering the first of those issues, Lord Hoffmann contrasted the Inspector's decision in the Bryan case that Bryan had acted in breach of planning control, a decision that was binding upon him in any subsequent criminal proceedings for failing to comply with the notice, with other administrative decisions:

When considering the manner in which the decision was arrived at, it is important to have regard to the totality of the proceedings and, in particular, to what procedural safeguards exist in the process viewed as a whole. Thus, in the Begum case, in addition to the fact that the decision was a judgmental one in the field of social welfare, it was relevant that the statutory scheme provided for an internal review by a more senior officer of the initial decision. In that review, Mrs Begum was entitled to make representations and be represented, and the Reviewer was obliged to give reasons if he rejected her representations: see paragraph 9 of the speech of Lord Bingham. In that context, the absence of a full fact finding jurisdiction in the County Court on appeal from the Reviewer's decision did not mean that it did not have "full jurisdiction."

In the Alconbury case, the procedural safeguards included the fact that there was a public inquiry before an Inspector who would make a report and recommendations to the Secretary of State, having given the parties the opportunity of calling and cross-examining witnesses: see paragraph 46 of the speech of Lord Slynn. When considering the content of the dispute and, in particular, whether the Secretary of State should be the decision maker, their Lordships emphasised that "planning matters are essentially matters of policy and expediency, not of law": see paragraph 159 in the speech of Lord Clyde, also paragraph 48 of the speech of Lord Slynn and paragraph 117 of the speech of Lord Hoffmann (but note that Lord Hoffmann qualified the final sentence of this paragraph in relation to findings of fact in paragraphs 40 and following in his speech in the Begum case).

Applying the "great principle" decided in Bryan to the facts of the present case, there can be no doubt where section 3 proceedings stand in the spectrum, ranging between, at one end, findings of breaches of the criminal law, the paradigm example of decisions which the rule of law requires should be entrusted to the courts, and at the other end of the spectrum, decisions on matters of planning policy which should be taken by the executive which will be answerable for such decisions to Parliament. An allegation that an individual is or has been engaged in terrorism-related activity is, even if it is not actually within, then as close as it is possible to be, to Lord Hoffmann's paradigm example.

The third factor mentioned in Bryan, the content of a dispute, including the desired and actual grounds of appeal, is likely to be closely related to the first, the subject matter of the decision appealed against. A land use planning decision, for example, that farming land should be compulsorily purchased for the construction of a by-pass is likely to lead to a challenge on the ground that the acquisition is not expedient. In such a case, a court will not have the necessary expertise to be able to "independently assess the merits and facts of the case": see the complaint in Zumtobel v Austria [1993] 17 EHRR 116, which was rejected by the European Court of Human Rights:

By contrast, the content of the dispute in the present case is whether the respondent is or has been engaged in terrorism activity and, if the answer to that question is yes, (on the basis of a reasonable suspicion) whether it is necessary to impose any and, if so, what, obligations upon him for the purpose of protecting the public from the risk of terrorism. Unlike matters of planning policy, these are questions which the courts are not merely well equipped to answer, but will have to answer if the power to make derogating control orders under section 4 of the Act is invoked following a designated derogation: see section 4(7) above.

If one looks at the respondent's first witness statement, his ground of appeal is, in summary, "I was not involved in terrorism-related activity." Save for the standard of proof, there is no difference between determining that ground of appeal in proceedings under the Act and resolving a very similar (and where the alleged terrorism-related activities do amount to a crime, identical) allegation in criminal proceedings.

I turn, therefore, to the third matter to be considered, the manner in which the decision was arrived at, bearing in mind that it is important to have regard to whatever procedural safeguards may be incorporated into the process as a whole. In my view, the features of the decision-making process that are relevant for this purpose are as follows.

Again, the need for a speedy, without notice permission stage is readily understandable: see the parallel requirement to hold "an immediate preliminary hearing" if an application is made for a derogating control order under section 4 of the Act. However, the fact that the permission stage is without notice, unlike, for example, the permission stage in ordinary judicial review proceedings where there is provision for a respondent to file an Acknowledgment of Service and Summary Grounds of Defence must be borne in the mind when considering whether the lack of any opportunity for the respondent to put his side of the case at the outset is remedied by the subsequent hearing under section 3(10).

It is common ground that the question, what is meant by a reasonable suspicion?, is to be answered by reference to the speech of Lord Hope in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. Section 12(1) of the Prevention of Terrorism (Temporary Powers) Act 1984 provided that:

At page 298A to E Lord Hope said:

The same standard of proof was applied in the certification process under the 2001 Act. Under section 21(1) of that Act the Secretary of State could issue a certificate if he (a) reasonably believed that a person's presence in the UK was a risk to national security, and (b) reasonably suspected that the person was a terrorist.

On an appeal under section 25, SIAC was under a duty to cancel the certificate if:

If the certificate was not cancelled, the appeal was dismissed (see subsection (3)).

Both SIAC and the Court of Appeal rejected submissions made on behalf of the detainees that a more stringent test should be applied. In SIAC's generic judgment delivered on the 29th October 2003, Ouseley J, having analysed the relevant authorities, said in paragraphs 46 to 48:

On appeal the Court of Appeal rejected submissions that SIAC had adopted a wrong approach and adopted "an insufficient standard of scrutiny": see A & Others v Secretary of State for the Home Department (No 2) [2005] 1 WLR 414 [2004] EWCA Civ 1123, per Pill LJ at paragraphs 28 to 52. In paragraph 46 Pill LJ referred to Lord Woolf's analysis in M v Secretary of State for the Home Department [2004] 2 All ER 863, of the task of SIAC in appeals under section 25:

Unsurprisingly, Mr Burnett submitted that if reasonable suspicion was sufficient to justify detention under the 2001 Act, it could not be said to be unfair as the basis for imposing obligations less than detention under section 3 of the Act. He also submitted that one should distinguish between substantive unfairness (a submission that the Act as a whole is unfair) and procedural unfairness (a submission that the particular procedure in section 3 is unfair). Criticism of the standard of proof fell into the former category. I do not accept that last submission. The standard of proof required of the original decision taker is capable of being a relevant factor when making an assessment of the extent to which the reviewing court will in reality be able to influence the decision-making process so as to have "sufficient jurisdiction" to deal with any particular case.

In McCann, section 1 of the Crime and Disorder Act 1998 did not specify the standard of proof to be applied by the Magistrates' Court. The Magistrates had power to make an ASBO "if it is proved that the conditions mentioned in subsection (1) are fulfilled": see paragraph 6 of the speech of Lord Steyn. Even though the House of Lords concluded that the proceedings for an ASBO were civil, not criminal, for the purposes of Article 6.1, their Lordships concluded that the higher civil standard of proof, which was in practice indistinguishable from the criminal standard of proof, should be applied by the Magistrates: see Lord Steyn at paragraph 37. In paragraph 82 Lord Hope rejected the submission advanced on behalf of the Secretary of State that the ordinary civil standard of proof should apply, saying that:

Both Lord Steyn (in paragraph 37) and Lord Hope distinguished the condition in section 1(1)(a) of the 1998 Act which requires proof that a person had acted in an anti-social manner, and the condition in section 1(1)(b) that an ASBO is necessary. In paragraph 83 Lord Hope pointed out that the latter:

Lord Scott and Lord Hobhouse agreed. Mr Burnett submitted that McCann was a case where the relevant Act required proof, to some unspecified standard, of conduct by an individual and the House of Lords merely fixed the standard. That could be distinguished from the position under section 3 which did not require proof, but merely a reasonable suspicion.

While criterion (b) in section 2(1) of the Act does raise a question which is a matter for evaluation and judgment, the question raised by criterion (a) is the same (apart from the fact that the behaviour in issue is much more serious) as the question raised in subsection 1(a) of the Crime and Disorder Act. Both raise serious questions of fact with serious implications for the individual if an order, whether an ASBO or control order, is made. If there are "good reasons in the interest of fairness" for applying the criminal standard of proof when deciding whether an individual has acted in an anti-social manner, it cannot be irrelevant in assessing the fairness of control order proceedings overall that a much lower standard of proof is applied when the underlying allegation is that an individual has been involved in terrorism-related activity. Of course, the risk posed to members of the public by terrorism is far more grave than the risk posed to persons in a particular local government area by anti-social behaviour. In the former case, the interests of national security are engaged and it is said that this, together with the nature of much intelligence information, will make it difficult, for evidential reasons, for the Secretary of State to establish more than a reasonable suspicion. Is that submission correct?

There is no explanation in the documentary material before the court and, when asked by me, Mr Burnett was unable to provide one in his submissions, as to why it was considered appropriate to apply a lower standard of proof in section 3 cases. The allegation made against the individual is no less grave, and while it is not intended that a non-derogating control order will infringe the individual's rights under Article 5, it may, depending upon the severity of the obligations imposed, either do so, or come very close to doing so, as well as interfering with his rights under Articles 8 to 11 and Article 1 Protocol 1.

In the present case it has not been possible to provide the respondent with even a summary of the closed material. In his submissions, Mr Burnett fairly described the applicant's open case as "relatively thin". Even if the interviews with the respondent on 1st and 2nd March 2005 and with his mother and father on 4th March 2005 were sufficient to establish a reasonable suspicion that the respondent intended to travel indirectly to Iraq, British citizens are free to travel to Iraq if they wish to do so. A desire to travel to Iraq could not, of itself, be a basis for suspecting that an individual is or was involved in terrorism-related activity. On the open material, the only basis on which anyone could reasonably suspect the respondent of being involved in such activity is the following sentence in paragraph 8 of the first open statement:

The basis for the Security Service's confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality, the respondent could make any effective challenge to what is, on the open case before him, no more than a bare assertion.

In his submissions, Mr Burnett placed particular emphasis upon the need to have regard to "the whole surrounding circumstances" when examining objectively the question of whether there were reasonable grounds for suspicion: see the final sentence in the passage from Lord Hope's speech in O'Hara, cited above. However, the reality in the present case is that the respondent has no means of examining the circumstances surrounding the bare assertion by the Security Service. Other than the fact that the information supporting the assertion came from the Security Service, he does not know the source of the information or its context. The Special Advocate is able to explore those issues, as he was on behalf of the detainees in proceedings before SIAC under the 2004 Act. In A (No 2) Pill LJ referred, with approval, to the dicta of Lord Woolf in paragraph 57 of his judgment in A (see paragraph 37 above).

Thus, Mr Burnett submits that the use of a Special Advocate to deal with the closed material in these proceedings cannot be in breach of Article 6.1. I accept that in the light of the Court of Appeal's decisions in A and A (No 2), the use of closed material when coupled with the appointment of a Special Advocate does not, of itself, result in non-compliance with Article 6.1. But it is still a factor to be taken into consideration in assessing how far section 3 proceedings involve departures from the requirements of Article 6.1 and whether they are "as fair as can reasonably be achieved."

Moreover, the Court of Appeal's conclusion that the appointment of a Special Advocate provided "a substantial degree of protection" must now be considered in the light of the House of Lords decision in R (Roberts) v Parole Board [2005] 2 AC 738 [2005] UK HL 45. Although Roberts was concerned with the requirements of procedural fairness under Article 5.4 (where the individual is challenging his continued detention), the principles are, if not equally applicable to the "fair hearing" guarantees in Article 6.1, then at least of relevance, even if there is a greater degree of latitude as to what fairness may require in any given case under Article 6.1.

Although Lord Bingham dissented on the issue of whether the Parole Board had power to adopt a Special Advocate procedure, he did not differ from the majority of their Lordships as to the limitations inherent in such a procedure. Having referred to a number of authorities establishing:

In paragraph 18 of his speech Lord Bingham described the limitations of the Special Advocate procedure, noted that the Court of Appeal had said in M (above) that an appellant to SIAC having to respond to closed evidence was "undoubtedly under a grave disadvantage", and concluded that (in the words of Lord Hewart CJ in a wholly different context) "the specially-appointed advocate would inevitably be taking blind shots at a hidden target."

Lord Bingham continued in paragraph 19:

It is important to bear in mind that these observations were made in the context of a procedure under which the board was deciding the issue itself. Thus, for example, it might be able to reach a decision without relying at all on the sensitive material. The board was not reviewing the lawfulness of a decision that had been taken by another body upon the basis of material, some of which had not been disclosed to the person concerned. If, as in the present case, not merely a part but the substantial part of the case against him is not disclosed to the individual in question, it is difficult to see how "the very essence of the right" (of access to the court) is not impaired. If it is not to be impaired, then the proceedings overall must incorporate significant checks and counter balances.

In Roberts, Lord Woolf emphasised the expertise of the decision taker:

In paragraphs 76 to 78 Lord Woolf said:

He concluded in paragraph 82:

Lord Rodger and Lord Carswell agreed that it was not possible to decide in advance whether the full hearing before the Parole Board involving the use of a Special Advocate would meet the requirements of Article 5.4 (see paragraphs 112 at 144 respectively).

Unlike SIAC's functions on appeal under the 2001 Act, the court's role in this hearing under section 3(10) of the Act is to review the lawfulness of the Secretary of State's decisions on or about 1st September 2005 and to decide whether they were flawed on judicial review principles. Although Mr Burnett emphasised (perhaps unusually in submissions made on behalf of the Secretary of State) the breadth of judicial review principles today and the fact that they now required the court to consider issues of proportionality where Convention rights are engaged, the fact remains that, applying judicial review principles, the court is not able to engage in a merits review under section 3(10): see paragraph 28 of the speech of Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [2001] UK HL 26.

Under some procedures there may well be a fine line between the court's ability to engage in a merits review and its ability to review the proportionality of an earlier decision. In particular, this will be the case where the court and the decision taker are both looking at the same, or substantially the same, body of material. In proceedings under section 3 of the Act, the court's inability to reach a decision upon the whole of the evidence available as at the date of the hearing is of real significance because the information available as at the date of the decisions under review will, by definition, not have included (a) the material subsequently provided by the respondent in answer to the allegations, and (b) at an even later stage, (b) the Special Advocate's response to the closed evidence. In summary, subsections (3, (10) and (11) require the court to review the lawfulness (not the merits) of earlier decisions that will necessarily have been taken on a completely one-sided view of the case.

Looking at the two criteria in subsection 2(1) in turn, it is wholly unrealistic to expect that a respondent will be able, on the basis of the open material, to be able to justify an application for permission to cross-examination the Secretary of State as to whether he had formed a genuine suspicion in his own mind. In practical terms, therefore, any respondent's ability to challenge the Secretary of State's decision under paragraph (a) will be limited to the objective test: whether there were reasonable grounds for the Secretary of State's suspicion at the time when he made order: see Lord Hope's speech in O'Hara above. While "the whole surrounding circumstances" must be considered, they will be the surrounding circumstances as they were at the time when the suspicion was formed in the Secretary of State's mind.

Mr Burnett correctly submitted in his skeleton argument:

Thus, while the court under section 3(10) can consider, for example, whether there were on the information available to the Secretary of State in September 2005 "obvious lines of inquiry which could have been followed [and which were] ignored" (see paragraph 46 of SIAC's generic determination above) it cannot consider subsequent information or explanation from the respondent and/or the Special Advocate. That fairness requires the court to be able to take full account of the respondent's explanation at some stage in the decision-making process is obvious, as is the need to take account of, for example, potentially exculpatory information identified by the Special Advocate when reviewing the closed material and new closed material and/or submissions by the Special Advocate which might cast a different, and less unfavourable, light, from the respondent's point of view, on the closed material that was available some months earlier. Given the very low standard of proof, and the one-sided picture before the Secretary of State at the relevant time, a respondent has no effective means of challenging the decision under section 2(1)(a).

Criterion (b) in subsection 2(1) is expressed in subjective terms. The question is not what a reasonable person would have thought was necessary in September 2005, but was the Secretary of State entitled to consider that the order and the obligations contained within it were necessary? Simply applying a traditional Wednesbury irrationality test would, in practice, place an impossibly high hurdle in any respondent's path, not least because of the very broad subjective area of judgment to be applied.

While I accept Mr Burnett's submission that a challenge to a decision by the Secretary of State under subsection 2(1)(b) could now be made upon the basis that the Secretary of State's view that the order, or any of the obligations imposed by it were necessary, was a disproportionate interference of the respondent's rights under Article 8.2, the question of proportionality would still have to be answered by reference to the information available to the Secretary of State in September 2005. What is considered to be necessary or proportionate under subsection 2(1)(b) and 1(3) will very much depend on what is reasonably suspected under paragraph (a) in subsection 2(1). The fact that subsequent information from the respondent and/or the Special Advocate shows that all or part of the suspicion under paragraph (a) was exaggerated, or even wholly unfounded, will not affect the proportionality of the paragraph (b) decision under review. Given the inter-relationship between paragraphs (a) and (b) in subsection 2(1), there is no more chance of a respondent being able to successfully challenge the lawfulness of the Secretary of State's subjective view as to what is necessary by way of response to his suspicion under paragraph (a) than there is of him being able to challenge the reasonableness of the suspicion itself. Thus, in practice, a respondent's right to challenge the Secretary of State's decision is devoid of substance.

If the Secretary of State's original decision was not legally flawed upon the basis of the information then available to him, these conclusions would not enable the court to quash the order. It would still be under a duty to "decide that the control order is to continue in force": see subsections 3(12) and (13) above. Such an outcome would be an affront to justice. In the absence of a merits review at the section 3(10) stage, the overall procedure is manifestly ineffective and unfair.

Returning to the three matters identified in Bryan, the subject matter of the decision appealed against, the manner in which that decision was arrived at (without any input from the respondent or a Special Advocate), and the content of the dispute between the applicant and the respondent, all of them point to only one conclusion: that nothing short of an ability to re-examine and reach its own conclusions on the merits of the case (applying the higher civil standard of proof if the decision in McCann (above) is followed) would be sufficient to give the court "full jurisdiction" for the purposes of determining the respondent's rights under Article 8 in compliance with Article 6.1 of the Convention.

When confronted with the obvious unfairness that could result if his written submissions (see above) as to the court's limited role under section 3(10) were to be accepted, Mr Burnett responded by submitting that any potential unfairness could be addressed under sections 7 and 10 of the act, the relevant provisions of which are as follows:

Mr Burnett submitted that material which became available after the Secretary of State's decision under section 2(1), whether in the form of the respondent's answer to the open case, or the Special Advocate's submissions in respect of the closed case could found an application for revocation or modification under subsection 7(1) on the basis that such new material amounted to "a change of circumstances affecting the order". If the Secretary of State's response to such new information was a refusal to revoke or modify the order, the controlee could appeal to the court under subsection 10(3) and the court would then be in a position to have regard to the new material in deciding whether or not the Secretary of State's later decision was flawed.

I do not accept the Secretary of State's belated submission that these provisions are capable of remedying the unfairness inherent in a hearing under section 3(10), for the following reasons. First, section 7 is not intended to deal with the respondent's basic contention that (save perhaps on an interim and without notice basis) a control order should never have been made against him because he is not, and was not, involved in terrorism-related activity. There is an obvious difference between an appeal on the basis that a control order should not have been made and an appeal on the basis that a control order having been properly made, it should now be revoked because of a change of circumstances. That difference is reflected in the terms of subsection 10(4).

On an appeal against a refusal to revoke a control order, the court's function is not to consider afresh the Secretary of State's decision under section 2(1)(a) that there were reasonable grounds for suspecting that the respondent was or had been involved in terrorism-related activity, but simply his decisions as to the necessity of making a control order and the obligations to be imposed by it. Mr Burnett submitted that the respondent would be able to use his challenge to the Secretary of State's view as to necessity under criterion (b) as a means of disputing that there were grounds for a reasonable suspicion under criterion (a). If there were no grounds for a reasonable suspicion in the light of the respondent's evidence and/or the Special Advocate's submissions, then it followed that there would be no necessity for an order and/or for the obligations within it. That submission overlooks the fact that the Act defines the court's functions on a hearing under section 3(10) and on an appeal under section 10(4) with great care. Each enactment identifies precisely the decisions which may be reviewed by the court. If Parliament had intended that the court should be able to consider a respondent's challenge to the Secretary of State's decision under the first limb of section 2(1) in an appeal under section 10(4) it would have said so. The omission was clearly deliberate.

It will be noted that section 10(4) deals with the court's functions on appeal against both a renewal of a non- derogating control order and a decision not to revoke the order. The Secretary of State's power to renew a non- derogating order is contained in subsection 2(6), which provides:

Thus, unsurprisingly, the Secretary of State does not have to revisit the question originally posed in subsection 2(1)(a). If the obligations imposed by the control order have been effective, the controlee will have been prevented from continuing to be involved in terrorism-related activity. There will, however, still be reasonable grounds for having suspected that he had been involved in terrorism-related activity in the past (prior to the imposition of the control order) and the only question on renewal will therefore be whether, 12 months further on, there is still a need to impose obligations upon him.

In summary, the function of an appeal under section 10(4) is not to consider a controlee's contention that he was never involved in terrorism-related activity. It will also be noted that section 7 deals with the revocation or modification of both non-derogating and derogating control orders. In respect of the latter, an application may be made at any time to the court by either the Secretary of State or the controlee. In such cases the court will have considered whether the criteria in subsection 4(7) are met as at the date of the hearing. If the court was not satisfied on the balance of probabilities that the respondent was involved in terrorism-related activity, it will not have confirmed the order. If it was so satisfied, then there will be no need to revisit that issue under section 10, but sub-section 7(1) will enable any other change of circumstances after the original hearing to be considered.

If these constraints imposed upon section 10(4) are ignored, I would accept the submission that in the absence of any other procedural opportunity to have his side of the case considered, the words "change of circumstances" could be construed so as to include post-decision material emanating from the respondent and/or the Special Advocate. Subsection 7(1) places the Secretary of State under a duty to consider an application for revocation or modification based upon such material. While the Secretary of State is not expressly required to give reasons if he refuses to revoke or modify the order, the court would imply an obligation to give reasons as a matter of fairness. However, no timetable is imposed upon the Secretary of State's consideration of an application under subsection 7(1) and the controlee may not appeal to the court until he has received the Secretary of State's decision: see subsection 10(3). A refusal to make a decision or an unlawful delay in making a decision could be the subject of an application by the controlee for permission to apply for a mandatory order in judicial review proceedings.

Section 11(1) of the Act provides that "control order decisions" (which include decisions made by the Secretary of State in the exercise or performance of any power or duty under section 7(1), see subsection 11(7)) are not to be questioned in any legal proceedings other than proceedings in the court, but it is doubtful whether this would bar judicial review proceedings challenging a failure by reason of inexcusable delay to make a decision, thereby preventing the making of an appeal under section 10(3). However long such a process might take, the controlee's rights under the Convention (under Article 8 in the present case) would continue to be affected by the obligations imposed by the control order.

There are, however, further practical difficulties in any attempts to use the section 7 procedure to in effect review the lawfulness of the control order upon the basis of all the material available to the court, as opposed to the material that was available to the Secretary of State when the order was made. Assuming that the exercise was permissible under subsections 10(4) and (5), the court would still be reviewing the lawfulness of an earlier decision (the Secretary of State's refusal to revoke the order) upon the basis of the material that was available as at that date, rather than looking at the whole of the evidence as at the date of the hearing. That this is not simply a procedural quibble is demonstrated by the fact that the decision under review in this hearing was made more than six months ago. Delays of this kind are inevitable in proceedings where a Special Advocate has to be instructed to examine the closed material and there has to be an opportunity for the court to decide whether any of the closed material, or a summary of it should be disclosed to the respondent.

The role of the Special Advocate in control order proceedings presents a further and more fundamental difficulty. Section 7(1) enables the controlee to apply for revocation or modification if he considers that there has been a change of circumstances affecting the order. But the controlee will not know the full picture. In particular, he will not know whether anything in the Special Advocate's examination of the closed material might, either of itself or in conjunction with the material available to him, be described as "a change of circumstances." Once the Special Advocate has seen the closed material, he may not communicate with the respondent or his legal representatives unless the court so directs: see CPR 76.25(2) and (4). Moreover, the Special Advocate's role under CPR 76.24 in respect of a hearing under section 3(10) is to examine (by way of oral and/or written submissions and cross-examination if appropriate) the lawfulness of the Secretary of State's decisions under section 2(1) upon the basis of the closed material then available to the Secretary of State. While the special advocate can explore, for example, whether the closed material placed before the Secretary of State ignored any lines of inquiry which were obvious at that time and which should have been pursued (see paragraph 46 of SIAC's generic judgment above), he is not required to examine what was actually known to the Secretary of State's informant, the Security Service, or whether any of the closed material on which the Secretary of State based his suspicion was in fact true: see Lord Hope's speech in O'Hara above. In particular, the Special Advocate does not have a roving commission to ascertain whether there might be new exculpatory material, or whether, for example, viewed in the light of the respondent's explanations which were not available to the Secretary of State, a different interpretation might be given to the closed material.

In brief, it is no part of the Special Advocate's role, when instructed for the purpose of a hearing under section 3 (10), to ferret about in the closed material in order to discover whether there might be any "changed circumstances" which might, if they could be communicated to the respondent pursuant to a direction of the court, then be used as the basis of an application by the respondent for revocation of the order under section 7(1).

On the assumption that a fair process can be devised, even though the court in control order cases has to rely on closed material which is not disclosed to a respondent, it is essential that the court is put in a position where it is able to consider the up-to-date position on the open evidence together with the up-to-date position on the closed evidence and thereby reach its own conclusion on the merits on the basis of the totality of the evidence. Only then would it be able to make due allowance for such factors as, for example, the respondent's inability to cross-examine those witnesses who gave closed evidence and the Special Advocate's inability to obtain the respondent's comments upon that closed evidence: see Roberts (above).

For all of these reasons, sections 7 and 10 are not the answer to the unfairness that is inherent in a hearing under section 3(10). For the sake of completeness, I should mention the fact that, following the conclusion of the hearing, I was supplied with a copy of the judgment of Ouseley J in Abu Rideh, dated 11th May 2005, an appeal against the Secretary of State's decision not to modify a control order. Ouseley J did not have to consider the issues that have been raised in these proceedings and his judgment in that case does not, in my view, affect in any way the conclusions that I have set out above.

Although it has been necessary to consider the question whether section 3(10) of the Act provides sufficient jurisdictional control for the purposes of Article 6.1 of the Convention by way of a step-by-step analysis of the factors mentioned in Bryan, it is important to remember that, as Lord Slynn said in paragraph 45 of his speech in Alconbury, the test is not a mechanical one; it depends on all the circumstances.

Standing back and looking at the overall picture, there can be only one conclusion. To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 8 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision.

I am unable to envisage any circumstances in which, realistically, it would have been possible for the court to conclude that the Secretary of State's decisions on or about 1st September 2005 were legally flawed upon the basis of the one-sided information then available to him. It follows that I must decide that the control order is to continue in force. However, for the reasons set out above, I am satisfied that the procedures under section 3 of the Act relating to the supervision of the court of non-derogating control orders made by the Secretary of State are incompatible with the respondent's right to a fair hearing under Article 6.1, and I will make a declaration of incompatibility to that effect under section 4 of the 1998 Act.

MR BAJWA: Can I raise two matters, my Lord.

MR JUSTICE SULLIVAN: Yes. Could I just say, Mr Bajwa, that I did receive via my clerk a telephone message that there was a question, I think from a newspaper, as to the basis of the anonymity and whether it could be challenged. The basis of the anonymity, of course, is the earlier orders made by Ouseley J. There has been no formal application before me to challenge that anonymity. If anyone wanted to make that application, they could do so in the normal way and, obviously, I would hear representations from them and representations from any other interested parties, including you, but as yet there has been no such application, and ten past four on the last day of term is not the time to make it, if anyone is thinking of trying!

MR BAJWA: Anonymity is very much part of the territory of the Prevention of Terrorism Act.

MR JUSTICE SULLIVAN: Yes.

MR BAJWA: The second matter we raise is contained in the concluding paragraph of your Lordship's judgment. May I just read that?

MR JUSTICE SULLIVAN: Of course.

MR BAJWA: "It follows that I must decide that the control order is to continue in force."

We had understood that your Lordship's judgment was going to be confined to the issue of compatibility, which was the mainstay of the argument presented to your Lordship over the course of the hearing last week. We take no issue with this indication, that your Lordship has effectively determined section 3(10) in the applicant's favour. We take no issue with that because it is not a matter that we could ever suggest that we could realistically challenge. If that be right, and the proceedings then, unless, of course, a respondent ever makes an application under section 7, that is a change of circumstances application, that would bring the proceedings to an end in this court.

In those circumstances, I am asked to make an application to your Lordship that the applicant pay the respondent's costs. He is receiving legal services under public funding, but we are informed by those who provide that funding that it makes a difference to budgetary considerations that they should have that order made, that the applicant pay the respondent's costs, even though, of course, ultimately we are talking about public funds.

MR JUSTICE SULLIVAN: Yes. Let us see what Mr Eicke says about that. Yes, Mr Eicke.

MR EICKE: My Lord, just in relation to the costs application, this is one of the situations where I have to accept that my learned friend for the respondent won the argument but the order continues in force and the Secretary of State, by operation of the Human Rights Act, won the day, if I can call it that.

MR JUSTICE SULLIVAN: Yes, that is right.

MR EICKE: We would respectfully say that the appropriate order would be no order as to costs to take account of those circumstances, my Lord.

MR JUSTICE SULLIVAN: Yes. Unless there is anything else to say, Mr Bajwa, I am bound to say, it does seem to me, with the format of the Act, that if you erect a structure whereby, frankly, people in the position of your client do not really have a chance, the Secretary of State is always going to win. You have substantially won the argument, certainly.

I suppose your point is that the entirety of the argument was on whether that position in which your client found himself was compatible with his rights under the Convention.

MR BAJWA: Your Lordship has it exactly. Our entire argument was restricted to a compatibility one, and that took up the four days of the hearing last week.

MR JUSTICE SULLIVAN: It did.

MR BAJWA: In those circumstances, my Lord, it is fair to say that the respondent was entirely successful.

MR JUSTICE SULLIVAN: I am more than happy, Mr Eicke, to give you a last bite of the cherry on that.

MR EICKE: My Lord, there is little I can say to that, bar the fact that it was run as a preliminary issue, but I have said what I can.

MR JUSTICE SULLIVAN: Yes, thank you very much.

In my judgment, in the somewhat peculiar circumstances of this case, even though the respondent has technically lost in substance, the respondent has succeeded because the respondent's case has all along been, in summary, that because there was never any reasonable prospect of him succeeding under this procedure, the procedure was incompatible with the Convention. In my judgment, therefore, the fair order, since those arguments have succeeded, is that the Secretary of State should pay the respondent's costs. Those costs are to be the subject of detailed assessment if not otherwise agreed.

MR EICKE: My Lord, that leaves two issues. One is an application for permission to appeal, mainly, of course, on the issue of public importance.

MR JUSTICE SULLIVAN: So far as the latter, Mr Eicke, you could always try to persuade me to give you permission to appeal on the basis that you had a real prospect of success, but at the moment I am not inclined to give you permission on that ground. I would be inclined, however, subject to anything Mr Bajwa or, indeed, Miss Farbey said, to give you permission on the other compelling reason; that is to say, it is very important to get the Court of Appeal's view on the lawfulness of this procedure.

MR BAJWA: I do not intend to change your Lordship's mind about that.

MR JUSTICE SULLIVAN: I give you permission, then, but I do so expressly on the second limb. The other compelling circumstance is that it is important to get the Court of Appeal's view.

MR EICKE: I am grateful, my Lord. That leaves one technical matter, that we would ask for a transcript of your Lordship's judgment as soon as possible because this obviously has an impact on a number of proceedings which are pending and the possibility of appealing it to the Court of Appeal.

MR JUSTICE SULLIVAN: We have actually got the Easter holidays coming up and I do not think it is necessary for the formal expedition of it. You should get the transcript at the end of the first week of term. If you want any provision for time to appeal, Notice of Appeal, say, 14 days after receipt of the transcript, that is the sort of provision I would be more than happy to make.

MR EICKE: My Lord, yes. I would be grateful if that could be done.

MR JUSTICE SULLIVAN: Yes, it seems to me that is sensible. There is absolutely no point in trying to settle grounds before you have actually had the details because there is a lot of detail in the transcript. So I am not going to expedite the transcript. I will endeavour to turn it round as fast as I can. The period within which you may appeal to the Court of Appeal, put in your Notice of Appeal, is 14 days from receipt of the transcript, rather than from today.

MR EICKE: I am grateful, my Lord.

MR JUSTICE SULLIVAN: The actual terms of the declaration of incompatibility, I was not thinking that at quarter past four today was the best time to try to sit around and sort those out. I could make myself available tomorrow to approve a draft, if it was agreed by the parties as to the precise terms of the declaration, but otherwise I am open to submissions as to what the best way forward is on the precise drafting of the declaration.

MR EICKE: My Lord, could I just take instructions? (Pause.) My Lord, attempts could be made to agree the order, but in the light of the fact that today is the last day of term, and your Lordship's judgment was very clear as to what the difficulties were, our submission would be that, in a sense, could wait until the transcript of your Lordship's judgment has been supplied and possibly agreed between the parties and approved at the beginning of next term.

MR JUSTICE SULLIVAN: So when I approve the final version of the judgment, with luck, by then you will have got your heads together and sorted out, one hopes, either an agreed declaration of incompatibility or reasons why you cannot agree, and leave it to me to sort it out on the papers.

MR EICKE: My Lord, we could certainly try and get an attempt at an order to you in the course of the first week of term, if that then would fit in with your timetable for approval of the judgment.

MR JUSTICE SULLIVAN: Yes, I think that is the best way to do it, rather than to try to do drafting of the hoof. If it is felt that the judgment itself is sufficiently clear, then that is a matter for you. It seems to me we have got to have a form of words.

MR EICKE: My Lord, yes.

MR JUSTICE SULLIVAN: Is there any more for any more?

MR EICKE: Not from us, my Lord, no.

MR BAJWA: My Lord, no.