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||Neutral Citation Number:  EWCA Civ 786
||Case No: T1/2009/0405
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
 EWHC 142 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE DYSON
LORD JUSTICE WILSON
|| SECRETARY OF STATE FOR THE HOME DEPARTMENT
||- and -
Mr Tim Eicke and Mr Andrew O'Connor (instructed by Treasury Solicitor) for the Appellant
Mr Danny Friedman and Ms Michelle Butler (instructed by Messrs Gladstone) for the Respondent
Hearing date: Wednesday 8 July 2009
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Sedley :
- The respondent GG is a foreign national who is subject to a control order made under the Prevention of Terrorism Act 2005. The propriety of a control order was confirmed by Collins J at the conclusion of a full hearing on 12 February 2009,  EWHC 142 (Admin). But in the same judgment Collins J excised from the order a provision requiring GG to submit to any search of his person which might be required for the purposes of monitoring his compliance with the other requirements of the control order. This element Collins J held to be beyond the Home Secretary's powers. With the judge's permission the Home Secretary appeals to this court against that ruling.
- GG has been subject to successive control orders since November 2005. By s.2 such orders can be made if there are reasonable grounds for suspecting that the individual concerned is or has been involved in terrorism-related activity. By s.3 the Home Secretary's decision to make a control order is subject to judicial supervision. By s. 7 it is open to modification on either party's initiative. S.10 accords a right of appeal, on grounds limited to judicial review principles, against the renewal or modification of an order. By s. 10(7)(b) the court may quash any obligation imposed by the order.
- The first of the orders against GG was struck down because its restrictions were so great as to amount to an unlawful deprivation of liberty. A new one was made in July 2006, renewed in July 2007 and July 2008. Collins J, after a careful consideration of evidence of which as much as possible had been disclosed, dismissed GG's appeal against the renewal of the order. He allowed an appeal on Article 8 ECHR grounds against the requirement that GG should live in Chesterfield. He also allowed GG's appeal against the search requirement.
The control order
- The paragraph of the order containing the contentious provision can most usefully be read in the version supplied by Tim Eicke, counsel for the Secretary of State, showing in bold type what was added on renewal in July 2008, and striking through the text that was removed at that stage:
You must permit entry to your residence and/or any building, land, vehicle, or other place in the United Kingdom that you own, control, or have any other interest in, to police officers and/or persons authorised by the Secretary of State and/or
by persons from the monitoring company, on production of identification, at any time to your presence at the residence and/or to ensure that you can comply and are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:-
(a) a search of the residence
or any vehicle controlled by you and/or you whilst you are in the residence and/or a search of any building, land, vehicle, or other place in the United Kingdom that you own, control, or have any other interest in;
(b) removal of any item to ensure that it does not breach the obligations imposed by this control order;
(c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations by this control order;
(d) permitting the installation of such equipment, in the residence, as may be considered necessary to ensure compliance with the obligations imposed by this control order; and
(e) the taking of your photograph.
- This modification was not confined to the respondent. At the time of the hearing before Collins J, it featured in all but one of the 14 control orders then in place (the remaining controlee being in prison) – a fact on which both parties rely, Danny Friedman for GG submitting that it demonstrates an inappropriate one-size-fits-all approach, Mr Eicke submitting that it shows the importance of the provision to the control order system.
- The content of a control order is dealt with, for present purposes, by s.1 of the 2005 Act. The first two subsections explain what a control order is and set certain limits to the power to make it. The next part of the section then deals with its content:
(3) The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
(4) Those obligations may include, in particular—
(a) a prohibition or restriction on his possession or use of specified articles or substances;
(b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities;
(c) a restriction in respect of his work or other occupation, or in respect of his business;
(d) a restriction on his association or communications with specified persons or with other persons generally;
(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;
(f) a prohibition on his being at specified places or within a specified area at specified times or on specified days;
(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;
(h) a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order;
(i) a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force;
(j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access;
(k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force;
(m) a requirement on him to allow himself to be photographed;
(n) a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;
(o) a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand;
(p) a requirement on him to report to a specified person at specified times and places.
(5) Power by or under a control order to prohibit or restrict the controlled person's movements includes, in particular, power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times or generally).
(6) The reference in subsection (4)(n) to co-operating with specified arrangements for monitoring includes a reference to each of the following—
(a) submitting to procedures required by the arrangements;
(b) wearing or otherwise using apparatus approved by or in accordance with the arrangements;
(c) maintaining such apparatus in the specified manner;
(d) complying with directions given by persons carrying out functions for the purposes of those arrangements.
(7) The information that the controlled person may be required to provide under a control order includes, in particular, advance information about his proposed movements or other activities.
(8) A control order may provide for a prohibition, restriction or requirement imposed by or under the order to apply only where a specified person has not given his consent or approval to what would otherwise contravene the prohibition, restriction or requirement
- Collins J, dealing compendiously with the challenge advanced on behalf of GG and that advanced on behalf of a second appellant, NN, said:
56. Mr Friedman submits, as did Miss Harrison on behalf of NN, that there is no power to impose an obligation to submit to a personal search. Section 1(4) of the 2005 Act lists a number of obligations which may be included in a control order. The subsection commences with these words:-
"These obligations may include, in particular …"
They are therefore clearly not intended to represent a limitation on what may properly be included in an order. However, there is no reference to searches of the person. S.1(4)(k) permits a requirement to allow searches of his residence or other premises to which he can grant access 'for the purpose of ascertaining whether obligations imposed by an order have been, are being or are about to be contravened'. S.1 (4)(l) permits a requirement to allow anything found to be removed for testing or to be retained so long as the order is in force. S.1(4)(m) permits a requirement that he allow himself to be photographed.
57. In R (Gillan) v Commissioner of Police of the Metropolis  2 AC 307, the House of Lords considered the lawfulness of the use of powers of stop and search contained in the Terrorism Act 2000. The power is conferred (2000 Act, s.45) for the purpose of searching for articles of a kind which could be used in connection with terrorism and can be used whether or not the constable has grounds for suspecting the presence of articles of that kind. The House upheld the use of the power in the circumstances of that case, but Lord Bingham at the outset of his speech said this:-
"It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it."
The principle referred to by Lord Bingham will extend to a search of anyone at home, or in any place in addition to on the streets. There must be a clear statutory provision which permits a search of the person. It may well be that the same principle applies to a search of a person's home, but there is in s.1(4)(k) a clear statutory provision permitting it.
58. A search of the person is a trespass and, unless authorised, an unlawful act. It is interesting that Parliament considered it necessary to provide specifically for a requirement to submit to being photographed, something far less intrusive than a personal search. The 2000 Act contains provisions which permit a search for items which may constitute evidence that an individual is a terrorist, but Parliament has not included a suspicion that or to ascertain whether there may be a breach of control obligations.
59. I have no doubt that Mr Friedman and Miss Harrison are right. In order to justify a search of the person, there must be a clear and unambiguous authorisation in a statute. There is none in s.1 of the 2005 Act and the fact that specific powers are given to search premises and to photograph individuals is inconsistent with the existence of a power to search the person. The opening words of s.1(4) are insufficient to provide such a power. That obligation must be removed from the order.
- Mr Eicke, with his customary candour, opened his submissions to this court by conceding that the search power as drawn was too broad because it permitted private security personnel to insist on and conduct what could be an intimate body search. What was intended, as the covering letter sent with the renewed order had indicated, was that the power should be limited to police officers.
- Mr Friedman submits that this concession fails to address the real issue – that without express or inescapably implied parliamentary authority, the executive has no power to invade a right so fundamental to the common law as personal autonomy. He does not submit that the common law contains a right of privacy, and he does not invoke article 8 of the European Convention on Human Rights or s.3 of the Human Rights Act 1998. But, with the support of Blackstone among others, he contends that the value which the law of battery and trespass to the person has historically aimed to protect is the right to freedom from deliberate physical interference, not least on the part of the state. If Parliament is to abrogate or limit that right it must make it plain beyond doubt that that is its intention, and s.1 of the 2005 Act does not do so. This was the argument that Collins J accepted.
- Mr Eicke accepts that the requirement to submit to searches, even if limited to the requirements of police officers, may include not only a search of clothing but a body search either superficial or intimate. He also accepts that s.1 nowhere in terms authorises the inclusion in a control order of a requirement to submit to personal searches. But he submits that the breadth of s.1(3) – "any obligations that the Secretary of State … considers necessary" – is ample to include such a requirement, and that the explicitly non-exhaustive list of such obligations in s.1(4) not only does not exclude such a power but positively requires it. To take his most striking example, if the Home Secretary can ban the appellant from having or using electronic means of communication (as s.1(4)(a) makes clear he can), and if (as s.1(4)(k) spells out) he can require the controlee to permit his home to be searched for these, it is inconceivable that Parliament did not intend that the controlee himself might also be searched.
- The passage from Lord Bingham's speech in Gillan quoted and relied on by Collins J echoes what Blackstone said that the rights of the people of England, and of anyone else who "falls under the protection of [its] laws", could be reduced to: -
"….. three principle or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense."
- It is in my judgment axiomatic that the common law rights of personal security and personal liberty prevent any official search of an individual's clothing or person without explicit statutory authority. That these are rights customarily defined by correlative wrongs rather than by affirmative declarations is an artefact of our constitutional history; but it makes them no less real and the courts' vigilance in defence of them no less necessary.
- I do not need to run through the full range of authority which Mr Friedman and his junior Michelle Butler have assembled in support of this approach. It is sufficient to recall that the courts have repeatedly recognised that searching people is not a neutral act - it was described in Leigh v Cole (1853) 6 Cox CC 329, 332, as "the degradation of searching" and in Bessell v Wilson (1853) 17 JP 52 as an indignity – and to adopt what Donaldson LJ said in this court in Lindley v Rutter  QB 128, 134:
"It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole.
What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.
This is not to say that there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are pima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to the officers in the form of standing instructions. But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone's pockets or handbag is lees of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so."
- Any search, as Robert Goff LJ said in Brazil v Chief Constable of Surrey  1 WLR 1155, 1162, is a restraint on a person's freedom, and Mr Eicke has rightly disavowed the suggestion that such limited freedom as a controlee possesses is any less highly regarded by the law than that of others. Any such notion was laid to rest by the classic judgment of Shaw LJ in R v Hull Prison Visitors, ex parte St Germain [ 1979] QB 425.
- Then is the breadth of the general statutory power, with or without the specificity of the permitted exercises of it, sufficient to permit what the law otherwise forbids?
- One of the criticisms Mr Eicke makes of Collins J's judgment is that it nowhere focuses on the general power contained in s.1(3). This is literally right, but it is clear that the power nevertheless forms the backdrop to the judge's reasoning. At all events, this court is in a position to make up the deficiency. But it is quite clear on first principles that if s. 1(3) stood alone it could not be read by the courts of this country as authorising the imposition of a continuing requirement to submit to personal searches at the behest of any personnel authorised by the Secretary of State (for the recent limitation of the requirement to police officers is a voluntary and not a necessary restriction). Whether it could authorise particular searches conducted for good and demonstrable reason is not a subject that has fallen for consideration in this appeal.
- The relationship of s.1(3) with s.1(4) and the subsections which follow it is not altogether obvious. On one view the latter is simply illustrative of the former. But I do not think this is an adequate account, because among the requirements authorised by s.1(4) are requirements to permit what would otherwise be civil wrongs or criminal acts. Thus a requirement imposed by virtue of paragraph (j) compels acquiescence in what would otherwise be a trespass to land; of (k), a trespass to goods; and of (n), amplified by subsection (6), an assault and battery. For the reasons of principle considered above, I do not consider that any of these, particularly the last, could be lawfully done under s.1(3) alone. If so, the same necessarily goes for the unarticulated power that Mr Eicke argues for.
- Is it then a necessary implication of such powers as are spelt out, particularly but not only in s. 1(4)(a), that the controlee may be required to submit to a search to ensure that a material restriction is being complied with? Such a power is no doubt a useful adjunct of the permitted controls, but it has not been suggested that they are valueless or inoperable without it: indeed, given that the power has been included in effectively all control orders since 2008 without once being used, such an argument is all but untenable. The purpose, as witnesses before Collins J accepted, is to have the power there in case it is ever needed. If that is so, then its inclusion is not necessary but at best convenient; and even its convenience is clouded by the potential arbitrariness of its use.
- While subsequent legislation is not necessarily an aid to the construction of earlier legislation, it may be noted that Parliament used the Counter-Terrorism Act 2008 to add to the 2005 Act three new provisions, ss. 7A, 7B and 7C. The first of these gives a constable a power to enter and search premises if it is suspected that the controlee has absconded; the second gives a similar power if the controlee fails to grant access when he is required to do so. The third additional section, most relevantly to the present case, permits an application for a warrant if enforced entry is necessary in order to determine whether the controlee is complying with the obligations imposed by the order. The warrant, if granted, may authorise a search of the premises but not of the controlee's person. None of this makes it any easier for Mr Eicke to contend that any power of search, much less of personal search, was in any event implicit in s.1.
- Mr Friedman also draws a legitimate contrast between Mr Eicke's account of the Prevention of Terrorism Act 2005 and the provisions of the Police and Criminal Evidence Act 1984. Where the 2005 Act is said to introduce an undefined and unregulated power to require submission to a personal search, PACE introduces such powers by clear words (as does other legislation) and governs their use by means of detailed Codes. It is a corollary of the Home Secretary's case, as Mr Eicke acknowledged, that s.1 would allow a control order to require access, for example, to privileged legal advice and correspondence in the controlee's possession. The asserted implied power, in other words, necessarily goes beyond the reach of the words in issue in the present case - but how far one cannot say.
- On the broader issues of legal principle, I have read in draft and respectfully adopt the analysis made by Dyson LJ of the material House of Lords authorities and their implications for the present case.
- In my judgment the general language of s.1(3) of the Prevention of Terrorism Act 2005 is insufficient to authorise the inclusion in a control order of a general requirement to submit to searches of the person, whether on the demand of anyone authorised by the Home Secretary or only of a police officer. The absence of such a power from the list of specific obligations in and following s.1(4) is as consistent with deliberate as with accidental omission. But even if the omission of a power to compel submission to personal search was a legislative oversight, it is not the role of the courts, in a matter touching fundamental liberties, to supply what Parliament might have inserted. As Lord Hoffmann pointed out in R v Home Secretary, ex p Simms  2 AC 115, 131, one of the reasons why the courts will not let general legislative words override fundamental rights is the "risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process".
- This being so, it is not necessary to consider the alternative grounds on which Mr Friedman would if necessary have sought to uphold the judgment of Collins J. These were, first, that any body search which the order purported to authorise would be a sufficiently serious derogation from respect for private life to invoke article 8(1) of the ECHR, and would not be "in accordance with the law" within article 8(2); secondly, that the indiscriminate introduction of the objectionable paragraph of the order made it impossible for the Home Secretary to say that it was "necessary" and so within s.1(3) in any one case.
- Nor have we reached the point at which we need to consider Mr Eicke's submission that, if his appeal succeeded, the necessity of the contentious requirement would be a matter for remission to the judge, since it potentially included closed material, and not for this court.
- I would dismiss this appeal.
Lord Justice Dyson:
- I agree that this appeal should be dismissed for the reasons given by Sedley LJ.
- The central question concerns the words in section 1(3) of the Prevention of Terrorism Act 2005 ("PTA") "The obligations that may be imposed by a control order…are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity" (emphasis added). The question is whether the words that I have emphasised are sufficient to authorise the inclusion in a control order of an obligation on the controlee to permit a police officer to conduct a personal search on him whilst at his place of residence.
- Mr Eicke submits that language of the subsection is clear and unqualified and that it means what it says. He says that Parliament intended to authorise the inclusion of "any" obligation provided that its inclusion is considered to be "necessary" for the stated purposes. It is wide enough to permit the inclusion of any obligation, even one which deprives the controlee of his fundamental rights.
- The principle of legality is that fundamental rights cannot be overridden by general or ambiguous statutory words: see per Lord Hoffmann in R v Home Secretary, ex p Simms  2 AC 115, 131F. As he said: "This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
- It is common ground that the right of a person not to be searched by the police unless reasonably suspected of having committed a criminal offence is a fundamental right. The question, therefore, is whether the language of section 1(3) expressly or by necessary implication authorises the inclusion in a control order of an obligation on the controlee to submit to personal searches. There are four decisions of the House of Lords which I have found of particular assistance in guiding me to the answer to this question.
- In Simms itself, the question was whether section 47(1) of the Prison Act 1952 enabled the Secretary of State to make rules restricting the fundamental right of prisoners to communicate with journalists. The subsection enabled the making of rules for, amongst other things, "the regulation and management of prisons…and for the treatment, employment, discipline and control of persons required to be detained therein". On a literal interpretation, Lord Steyn acknowledged at p 130D that there was force in the extensive construction put forward on behalf of the Secretary of State. But this general power to make rules for the management and regulation of prisons was considered by the House of Lords to be insufficiently clear to authorise the infringement of the basic rights of prisoners. There was no express power to restrict the right of prisoners to communicate with journalists and no basis for holding that such a power was conferred by necessary implication.
- In R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax  UKHL 21,  1 AC 563, an inspector of taxes sought the consent of a special commissioner under section 20(7) of the Taxes Management Act 1970 ("TMA") to issue a notice under section 20(1) requiring disclosure by the bank of, inter alia, its instructions to and advice of counsel in relation to a tax avoidance scheme. The question was whether section 20(1) authorised a notice requiring the disclosure of material which was protected by the common law doctrine of legal professional privilege. Section 20(1) is in these terms:
"Subject to this section, an inspector may by notice in writing require a person – (a) to deliver to him such documents as are in the person's possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to – (i) any tax liability to which the person is or may be subject, or (ii) the amount of any such liability…"
- Lord Hoffmann said that two principles were not in dispute. First, legal professional privilege is a fundamental human right long established in the common law. Secondly:
"8. The courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication. The speeches of Lord Steyn and myself in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115 contain some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) I PI 1999."
- He said that section 20(1) contained no express reference to legal professional privilege and the question was whether its exclusion must necessarily be implied. The argument for the Revenue was that Parliament had provided a number of specific safeguards for the protection of the taxpayer, including an express preservation of legal professional privilege for documents in the possession of a barrister, advocate or legal adviser. It was therefore argued that it necessarily followed that no wider qualification of the general words of section 20(1) was intended. Lord Hoffmann rejected this argument for reasons which it is not necessary to examine. He concluded, therefore, at  that the provisions on which the Revenue relied were not sufficient to create a necessary implication that legal professional privilege was intended to be excluded. Accordingly, there was nothing to displace the presumption that Parliament did not intend by section 20(1) to exclude legal professional privilege.
- In many ways section 20(1) of the TMA is analogous to section 1(3) of the PTA. Section 20(1) authorises a notice requiring a person to deliver "such documents…as (in the inspector's reasonable opinion) contain or may contain, information relevant to…". The phrase "such documents" is analogous to "any obligations" in section 1(3) of the PTA. The criterion that the documents should in the reasonable opinion of the inspector contain relevant information is analogous to the criterion in section 1(3) that the obligations should be such as the Secretary of State (or the court) considers necessary. The material words in the two statutory provisions are strikingly similar in their generality.
- In my judgment, this decision provides strong support for the arguments advanced by Mr Friedman in the present case. Like Simms, it shows that general words without more are insufficient to show that Parliament intended to take away fundamental rights. Something more is required. The two remaining authorities are examples of cases where general words were held to be sufficient to show that Parliament intended to take away fundamental rights because it was clear from the statutory context that this is what Parliament must have intended to do. The context showed that, to use the language of Lord Hoffmann, there was no risk that the full implications of the unqualified meaning of the general words may have passed unnoticed in the democratic process.
- The first of these authorities is Gillan which in my view is important not only for the passage from  of Lord Bingham's speech cited by Collins J and Sedley LJ. Section 44(3) of the Terrorism Act 2000 provides that an authorisation may be given to any constable inter alia to stop a vehicle and to search the vehicle and the driver and any passenger, but only if the person giving the authorisation "considers it expedient for the prevention of acts of terrorism". The power to authorise the stop and search is not subject to a requirement that there is a reasonable suspicion that the person to be searched is a terrorist. The claimants brought proceedings against the Commissioner of Police of the Metropolis seeking judicial review of their treatment, the authorisation for the stop and search and its confirmation. One of the arguments that they deployed was that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departed from the normal rule applicable where a constable exercises a power to stop and search; the right not to be stopped and searched was a fundamental human right; and the principle of legality required section 44(3) to be construed as permitting an authorisation to be made only if the decision-maker has reasonable grounds for considering that the powers are necessary and suitable in all the circumstances for the prevention of terrorism.
- Lord Bingham said at  that the principle of legality had no application, since even if the statutory powers did infringe a fundamental human right, (itself, he said, a debatable proposition), "they do not do so by general words but by provisions of a detailed, specific and unambiguous character". He was referring to the detailed provisions made in section 46 for confirmation of the authorisation and, perhaps of greater importance, the detailed provisions in section 45 regulating the exercise of the power of stop and search. In addition, by section 66 of the Police and Criminal Evidence Act 1984, as amended, the Secretary of State must issue codes of practice in connection with the exercise by police officers of statutory powers to search, detain and question. The police are under a duty to have regard to any relevant provisions of a code. Code A contains detailed provisions as to the conduct of searches.
- In these circumstances, Lord Bingham was able to say at :
"But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said."
- In other words, there was no risk that the full implications of section 44(3) may have passed unnoticed by Parliament. The same cannot be said of section 1(3) of the PTA. There is no reference in section 1(3) or (4) to an obligation to submit to a personal search. I can accept the submission of Mr Eicke that subsection (4) contains a list of examples which is not intended to be exhaustive. But it does not follow that Parliament intended the apparently broad language of subsection (3) to authorise the inclusion in a control order of obligations which infringe a person's fundamental rights. The fact that the list in subsection (4) is extensive and that it includes obligations which are less invasive of a person's fundamental rights than the obligation to submit to a personal search strongly suggests that Parliament did not intend to permit the inclusion of such an obligation in a control order.
- But for present purposes, the more important point is that, in contrast with the Terrorism Act 2000, there is nothing in the PTA to indicate that Parliament thought about personal searches and, therefore, that the full implications of the unqualified meaning of subsection (3) for which Mr Eicke contends was noticed during the democratic process. Far from the statutory context in the PTA showing that the exercise of the power to conduct personal searches is very closely regulated, it is not regulated at all. The statute is silent. This seems to me to be a paradigm case of general words which are neither expressly nor by necessary implication intended to interfere with a person's fundamental rights.
- The final authority is McE v Prison Service of Northern Ireland and others  UKHL 15,  2 WLR 782. The applicants, who were serving prisoners, brought judicial review proceedings seeking declarations that they were entitled to consult their legal and medical advisers without being subject to covert surveillance. It was held by the House of Lords that the Regulation of Investigatory Powers Act 2000 ("RIPA") permitted covert surveillance of communications between persons in custody and their legal or medical advisers, notwithstanding that such communications enjoyed legal professional privilege and (Lord Phillips of Worth Matravers dissenting) despite such persons' statutory rights to consult a solicitor privately, provided that the surveillance was conducted in accordance with the Act and the Code of Practice issued thereunder and did not violate Convention rights (my emphasis). Section 27(1) of RIPA provides:
"Conduct to which this Part applies shall be lawful for all purposes if (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and (b) his conduct is in accordance with the authorisation."
- The majority of the House of Lords attached significance to the fact that the "generality of the phrase "for all purposes" is unqualified" (Lord Hope at ). At , Lord Hope noted that Parliament was aware of the importance of preserving the protection of privilege in other circumstances arising from the provisions of RIPA. He referred in terms to the principle that fundamental rights cannot be overridden by words that are general or ambiguous and to Lord Hoffmann's speech in Simms. But of RIPA, Lord Hope said:
"Far from being general and ambiguous, the very essence of its provisions was to enable fundamental privacy rights to be overridden to an extent that was no more than necessary under precise conditions that were sufficiently strict and carefully regulated" (my emphasis).
- As in Gillan, so too in McE, the contrast with the present case is stark. In my judgment, these cases demonstrate that general statutory words will not suffice to permit an invasion of fundamental rights unless it is clear from the whole statutory context that Parliament intended to achieve that result. If detailed provision has been made for the exercise of the general power, it may be possible to infer that Parliament intended the power to be exercised so as to infringe fundamental rights. That will depend on the precise provisions that have been made. But the mere use of general words without more such as is to be found in section 1(3) of the PTA will not suffice.
- For these reasons, which I believe in substance do not differ from those of Sedley LJ, I would dismiss this appeal.
Lord Justice Wilson:
- I agree with both judgments.
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