R (on the application of Lord Carlile of Berriew QC & Ors) v Secretary of State for the Home Department [2014] UKSC 60

Parliamentarians challenged the Home Secretary's refusal to admit Mrs Rajavi, an Iranian dissident, to the UK to address them at Westminster on Iranian democracy. The Supreme Court dismissed the appeal, holding the interference with Article 10 rights was proportionate given foreign policy and security risks.

Facts

Mrs Maryam Rajavi is an Iranian dissident politician resident in Paris and the de facto leader of the People’s Mojahedin Organisation of Iran (MeK), an organisation which supported terrorist violence in Iran until 2001 but which has since been de-proscribed in the UK (2008), EU (2009), US (2012) and Canada (2012). She had been excluded from the United Kingdom since 1997 on grounds that her presence was not conducive to the public good.

In December 2010, Lord Carlile of Berriew QC and other cross-party parliamentarians sought a meeting with the Home Secretary to request that Mrs Rajavi be permitted to enter the UK to address them in the Palace of Westminster on democracy and human rights in Iran. The Home Secretary, following advice from the Foreign Office, maintained the exclusion in three successive decisions (February 2011, October 2011, January 2012). The reasons focused on the risk of a hostile Iranian reaction, damage to UK-Iran diplomatic relations, threats to locally engaged embassy staff, British nationals and property, and impairment of negotiations concerning nuclear non-proliferation. These concerns were amplified after the sacking of the British Embassy in Tehran in November 2011.

Issues

The appeal was framed under Article 10 ECHR. Three issues arose:

• Whether the anticipated hostile reaction of a foreign state that does not share Convention values was legally relevant to a decision restricting Article 10 rights.
• Whether the Secretary of State had properly assessed the extent of the interference with Article 10 rights.
• Whether the interference was proportionate, weighing the fundamental right of political expression against national security, public safety, and the rights of others.

Arguments

Appellants (Lord Pannick QC)

The appellants contended that reliance on the anticipated reaction of an undemocratic regime was legally irrelevant; interference with Article 10 could only be justified by considerations rooted in democratic values, save where a derogation under Article 15 was warranted. Alternatively, restrictions on political speech required extreme justification, absent here. It was submitted that the Secretary of State had understated the interference and overstated the risks, and that a less intrusive alternative existed (explaining to Iran that the UK was bound by the Human Rights Act and an independent judiciary).

Respondent (Mr Eadie QC)

The Home Secretary submitted her decisions had been personally taken, informed by expert Foreign Office advice, and rested on judgments of risk peculiarly within executive competence. The risks to British interests and staff were real, particularly after the November 2011 embassy attack, and interference was proportionate given available alternative means of communication.

Judgment

The Supreme Court dismissed the appeal by a majority (Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption; Lord Kerr dissenting).

Legal relevance (Lord Sumption)

The threshold argument was rejected. Whether a person’s presence is conducive to the public good is a question of fact, and the potential consequences, including hostile foreign reactions, are plainly relevant. Following R (Corner House Research) v Director of the Serious Fraud Office [2009] AC 756, even fundamental values cannot generate absolute rules that exclude weighing of relevant considerations.

Proportionality test

The court applied the four-stage test from Bank Mellat v HM Treasury (No 2) [2014] AC 700: importance of objective, rational connection, less intrusive means, and fair balance. The court reaffirmed that while proportionality is ultimately for the court, considerable weight must be given to executive assessments where the subject matter involves foreign policy, national security, and predictive judgments about the conduct of foreign states. Lord Sumption drew extensively on Lord Hoffmann’s analysis in Secretary of State for the Home Department v Rehman [2003] 1 AC 153, distinguishing the constitutional separation of powers from the pragmatic evidential weight of executive judgments.

Application

The primary facts were undisputed and the good faith of the Secretary of State accepted. Mr O’Flaherty had not been cross-examined. The interference was real but limited, as alternative means of communication (video-link, meetings in France) remained available; the majority relied on Appleby v United Kingdom, Mouvement Raëlien Suisse v Switzerland, and Animal Defenders International v United Kingdom. The Foreign Office’s assessment of risks to national security, public safety and the rights of others was a professional predictive judgment which the court had no proper basis to reject. No less intrusive alternative was viable.

Lord Neuberger and Lady Hale

Both agreed the appeal should be dismissed but emphasised that the Court of Appeal had erred in confining itself to traditional judicial review grounds; where Convention rights are engaged, the court must itself assess proportionality, though according considerable respect to executive judgment on matters of foreign policy and security. Lady Hale expressed reluctance but concluded the risks, though not of the weightiest, sufficed given the availability of alternative means and the symbolic significance of lifting the ban.

Lord Clarke

Expressed extreme scepticism about the reasons given but concluded that, given no cross-examination and the executive’s institutional competence, there was no proper basis to overturn the decision.

Lord Kerr (dissenting)

Considered that the court must independently assess the weight of the Article 10 right, not defer to the executive on that question. He emphasised the fundamental importance of political speech, particularly by parliamentarians, and considered that the unpredictability of Iranian reactions and their anti-democratic character diminished the weight to be attached to the executive’s assessment. He would have allowed the appeal.

Implications

The judgment clarifies the role of the courts in reviewing executive decisions engaging Convention rights, particularly in the fields of foreign policy and national security. It confirms that:

• Proportionality is ultimately a matter for the court, but the intensity of review varies with context; on predictive judgments about foreign relations and national security, considerable weight is due to the executive’s assessment.
• The court will not usurp the executive’s institutional competence in assessing risks arising from the conduct of foreign states, particularly where the primary facts are unchallenged and no cross-examination has been sought.
• Article 10 rights, though fundamental, remain qualified; the availability of alternative means of communication is relevant to assessing the degree of interference.
• The origin of a threat in the actions of an undemocratic regime does not render it legally irrelevant; the executive is entitled to have regard to actual risks, whatever their motivation.

The decision matters to practitioners advising on judicial review of executive decisions engaging Convention rights, particularly in immigration exclusion cases and matters touching foreign relations. It reinforces the boundary between constitutional review and merits review while emphasising that traditional judicial review (as applied by the Court of Appeal here) is not sufficient where Convention rights are engaged. Lord Kerr’s dissent highlights an unresolved tension about the extent to which courts should discount executive assessments where the apprehended harm derives from anti-democratic conduct abroad.

Verdict: Appeal dismissed. The Supreme Court held, by a majority (Lord Kerr dissenting), that the Home Secretary’s decision to maintain the exclusion of Mrs Rajavi from the United Kingdom was a proportionate interference with the appellants’ Article 10 rights, justified on grounds of national security, public safety and the protection of the rights of others.

Source: R (on the application of Lord Carlile of Berriew QC & Ors) v Secretary of State for the Home Department [2014] UKSC 60