Legality and the Presumption against the Abrogation of Fundamental Freedoms: Control Orders Cannot Abrogate Fundamental Rights without Express Authority

Secretary of State for the Home Department v GG [2009] EWCA Civ 786 (23 July 2009) The Court of Appeal of England and Wales has considered the Home Secretary’s power to restrict a person’s liberty with a control order made under the UK Prevention of Terrorism Act 2005.  The Court held that broad powers under the relevant legislation had to be read consistently with the common law principle that fundamental rights must not be abrogated without express parliamentary authority.


The Home Secretary in the UK is the Minister responsible for matters of national security.  The Prevention of Terrorism Act 2005 confers on the Home Secretary the power to restrict a person’s liberty by a control order if that person is suspected of being involved in terrorist activities.  GG was subject to such a control order.  One of the restrictions of GG’s control order was that the Home Department could order that GG be personally searched on demand, even if GG was not suspected of having committed a criminal offence.  The Court of Appeal had to consider whether this condition of the control order was lawful under the Prevention of Terrorism Act 2005.

Section 1(3) of the Prevention of Terrorism Act 2005 provides that the Home Secretary can impose any obligations necessary under a control order, for the purpose of preventing or restricting a person’s involvement in a terrorist activity.  Section 1(4) then provides a non-exhaustive list of possible restrictions and obligations that can be included in a control order. 

The Act does not expressly provide that the Home Secretary can impose a restriction to make person subject to personal searches.  Counsel of the Home Secretary argued that that language of s 1(3) is clear and unqualified and that it means what it says.  He submitted that it was wide enough to permit the inclusion of any obligation, even one which deprives a person of his fundamental rights.

The Court was required to decide whether the broad power to impose conditions as part of a control order permitted the Home Secretary to order that GG be subject to personal searches on demand.


The Court of Appeal unanimously held that the condition that GG could be searched by an order of the Home Department was invalid.  Lord Justice Sedley and Lord Justice Dyson (in separate judgements), with Lord Justice Wilson concurring, held that, despite the breadth of the statutory power, s 1(3) of the Prevention of Terrorism Act 2005 did not either expressly or impliedly confer on the Home Secretary the power to impose an obligation for a person to submit to a personal search.  Without express and explicit parliamentary authority, the executive could not abrogate a person’s fundamental common law rights of personal security and personal liberty by allowing searches of that individual’s clothing or person.

Sedley LJ explained that the absence of reference to personal searches from the list of specific obligations is as consistent with deliberate omission as with accidental omission.  His Honour held that even if it were an oversight by the Parliament, it is not the role of the courts, in a matter affecting fundamental liberties, to provide what Parliament might have inserted.  Dyson LJ followed similar reasoning in his judgment, noting that there was nothing in the legislation to indicate that Parliament thought about personal searches and, therefore, that the full implications of the unqualified meaning of s 1(3) argued for by counsel for the Home Secretary was noticed during the democratic process.

Relevance to the Victorian Charter

Section 21 of the Victorian Charter provides that a person has the right to liberty and security.  The specific provisions of s 21 of the Victorian Charter include the right not to be deprived of liberty except on grounds, and in accordance with procedures, established by law. 

This case reinforces the principle that restrictions on a person’s liberty which touch on fundamental rights and freedoms must be expressly and explicitly authorised by legislation if they are to be valid under s 21 of the Victorian Charter and under common law principles.

The decision is available at

Juan Munoz, Human Rights Law Group, Mallesons Stephen Jaques