ARANI SOLICITORS PRESS STATEMENT ON HOUSE OF LORDS JUDGMENT ON CONTROL ORDERS
On 31 October, the House of Lords gave its judgements in the control orders appeals of MB & Ors v Secretary of State. We acted for the appellant in MB.
The Secretary of State argued that reliance on closed material coupled with the use of special advocates (independent security vetted lawyers appointed to make submissions in closed session on behalf of the controlled person) ensured that a controlled person will always have a fair hearing. By a majority of 4:1, the House of Lords rejected that argument. As Lord Bingham put it, "the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek his instructions without permission which in practice (as I understand) is not given. 'Grave disadvantage' is not, I think, an exaggerated description of the controlled person's position where such circumstances obtain."
The House of Lords decided that in every control order case the Court must decide for itself whether the Secretary of State's reliance on closed material deprives the controlled person of a fair hearing. If so the Court must quash the control order.
Given that almost every control order is based on closed material which the controlled person is not given any opportunity to contest, the judgement of the House of Lords is very likely to affect most of the control orders currently in place and the Secretary of State's ability to make control orders in the future.
We welcome the judgement, which is a vindication of the point of view that we have expressed from the moment that control orders were first introduced, namely that any procedure which adversely affects an accused person but prevents him from knowing the evidence - in some cases, even the allegation - against him is an affront to justice.
31 October 2007