QX, a British citizen, was arrested in Turkey on suspicion of being engaged in terrorism-related activity in Syria. Having obtained permission from the High Court under section 3 of the Counter-Terrorism and Security Act 2015, the Home Secretary imposed a temporary exclusion order on QX under section 2 of the 2015 Act having been satisfied that Conditions A–E within section 2(2) were satisfied. Those conditions included that the Home Secretary reasonably (i) suspected that QX was or had been involved in terrorism-related activity outside the United Kingdom (Condition A) and (ii) considered it is necessary to impose the order for the protection of the public from a risk of terrorism (Condition B). QX was deported from Turkey and returned to the United Kingdom pursuant to a return permit to issued by the Home Secretary under section 5 of the Act and was on arrival served with a copy of the order and a notice of obligations imposed under section 9 of the Act. He applied under section 11(2) of the Act for a review of the section 9 obligations. Following the expiry of the order, QX amended his application for a review to include the Syria allegation itself and whether Conditions A and B under section 2(2) had been met so as to justify the order being imposed. On the hearing to determine preliminary issues, the court sat partly in open court and partly in closed session to hear closed material with special advocates acting for QX. The judge held that (i) article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms did not apply to the review of whether Conditions A and B were met when the order was imposed and whether Condition B continued to be met throughout the currency of the order with the consequence that QX was not entitled to “AF (No 3) disclosure”, namely that an individual was entitled to a level of disclosure sufficient to provide information about the allegations against him to enable him to give effective instructions to his special advocate, (ii) QX was not entitled to cross-examine the Home Secretary’s national security witness on his challenge to Conditions A and B, and (iii) the Home Secretary should be ordered to tender a witness for cross-examination on other aspects of the challenge. QX appealed against determinations (i) and (ii) and the Home Secretary cross-appealed against determination (iii).
On the appeal and cross-appeal—
Held, (1) Appeal allowed in part. Although the making of a temporary exclusion order in isolation might fall within the strictest of public-authority prerogatives, that was only the starting point. A successful challenge to the making of an order, where obligations had also been imposed which would interfere with rights under article 8 of the Convention, the quashing of the order would also result in the quashing of the obligations. While the order and any obligations imposed by a section 9 notice were legally distinct, the obligations could not survive if the order was quashed. The design of the statutory scheme meant that a challenge to the making of an order was necessarily (potentially at least) decisive for any article 8 rights (that was, civil rights) with which any obligations interfered. Therefore, an application for a review of the Home Secretary’s decision that any of the conditions under section 2(2) of the Act was met, or to the obligations imposed by an order would be decisive for QX’s article 8 rights. If the challenge were to succeed then the obligations, which were an interference with QX’s article 8 rights, would fall with the order. Article 6(1) of the Convention therefore applied to such a challenge, and QX would therefore be entitled to a level of disclosure which complied with article 6 but which could depend on the degree of interference involved, the applicable standard being disclosure that complied with AF (No 3) (paras 4, 7, 118, 119, 127, 129, 130).
(2) The designated decision-maker for the purposes of the 2015 Act was clearly the Home Secretary and not the court. The role of the judge was to review the decisions of the Secretary of State, including whether the conditions under section 2(2) of the Act had been met. It was not for the judge to make those decisions herself. It was not possible, considering the requirement in section 3(1) of the Human Rights Act 1998 to read and give effect to legislation in a way which was compatible with Convention rights, to read the review provisions in section 11(2) and (3) of the 2015 Act in any other way. Therefore, there could be no cross-examination of a national security witness on a review of the Home Secretary’s decisions that Conditions A and B were met and judge was correct to so hold (paras 4, 7, 124, 125, 126, 127, 129, 130).
(3) Cross-appeal allowed. The starting proposition in civil litigation, where party autonomy was paramount, was that a court had no general power to order one party to call as a witness on a substantive issue a person whom that party did not wish to call. A party was free to choose which evidence to include and which evidence to leave out and the court could not interfere and compel the party to do otherwise even if the evidence was regarded as significant. Accordingly, the judge fell into error when ordering the Home Secretary to make a witness available for cross-examination on other aspects of QX’s challenge (paras 128, 129, 133, 135, 140, 141, 145, 147).
Dan Squires KC and Darryl Hutcheon (instructed by ITN Solicitors) for the claimant.
Robin Tam KC and Steven Gray (instructed by Treasury Solicitor) for the Home Secretary.