UK national security concerns trump freedom of expression

Lord Carlile and Others and Maryam Rajavi v Secretary of State for the Home Department [2012] EWHC 617 (Admin) (16 March 2012)

Summary

In this decision, the High Court of England and Wales considered whether concerns relating to national security justified infringement of the right to freedom of expression. The British Secretary of State for the Home Department refused permission for Iranian dissident Maryam Rajavi to enter the UK to address British parliamentarians at Westminster, allegedly infringing the claimants’ common law and European Convention of Human Rights right to freedom of expression. Although it expressed sympathy with the claimants’ position, the High Court held that the Secretary’s decision to exclude Rajavi was proportionate in light of the Secretary’s concerns for national security and public order.

Facts

The original claimants, sixteen cross-party members of the House of Lords and the House of Commons, had invited Rajavi (subsequently added as an additional claimant) to address members of the British parliament at Westminster. Rajavi is an eminent dissident Iranian politician and leader of the People’s Mojahedin Organisation of Iran, known by its Farsi acronym MeK. Rajavi had previously been excluded from the UK on the basis that MeK was a proscribed terrorist organisation. However, MeK was de-proscribed in late 2007 as a result of “a significant change in MeK’s activities dating from June 2001 onwards”.

Despite this, in three decisions between February 2011 and January 2012, the Secretary decided to exclude Rajavi from entering the UK due to “the Foreign and Commonwealth Office’s apprehension or fear of unlawful reprisals by the government of Iran if her exclusion [were to be] lifted”. Essentially, the Secretary was concerned that:

• MeK advocates the overthrow of the current Iranian regime and is still considered a terrorist organisation by the government of Iran;
• permission for Rajavi to enter the UK so as to address parliamentarians would be perceived by Iran as a “deliberate political move” against it; and
• such a decision would “damage existing UK interests in relation to Iran”.

The Secretary’s decision was motivated by the concern that lifting Mrs Rajavi’s exclusion “would cause damage to the UK interests in relation to Iran and endanger the security, wellbeing and properties of British officials overseas.” These concerns and the Secretary’s decision were subsequently affirmed following a deterioration of relations between the UK and Iran after the severance of British financial ties with Iran, the subsequent expulsion of the British ambassador in November 2011, and the sacking of the British Embassy by protestors shortly thereafter.

Decision

Lord Justice Burnton (with whom Justice Underhill agreed) identified the claimants’ substantial ground for judicial review to be that their article 10 rights of freedom of expression had been infringed. His Honour noted that the right to freedom of expression found in article 10 of the Convention “expressly protects the right to receive and impart information and ideas”, and that Rajavi’s exclusion consequently affected the rights of parliamentarians to hear from her. Lord Justice Burnton noted the particular importance of the right to free expression with regards to members of the legislature, and rejected the submission that a meeting via video link would have provided an equivalent substitute. His Honour considered that, because the right of free expression engaged was that of parliamentarians, the justification for curtailing the right would have to be “particularly strong”. Lord Justice Burnton quoted with strong approval the approach in Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546. In that decision, two Court of Appeal judges found that the exceptions to the right of freedom of expression provided in article 10.2 of the Convention (which include national security and public order) must be construed strictly and the need for any restrictions must be convincingly established. However, their Honours further held that a decision of the Secretary to refuse an alien entry into the UK on national security or public order grounds must be entitled to great weight and enjoy a wide margin of appreciation, because the Secretary is likely to have advice and a perspective not readily available to the court. In short, the court’s role is restricted to a review based upon a proportionality analysis.

Applying this approach, Burnton LJ found that the present case was “concerned with fears or apprehensions, based on assessments or judgements made with the wide experience and expertise and information available … which the Court is not in a position to gainsay.” His Honour regarded it as “entirely credible, indeed likely” that permission for Rajavi to enter the UK and address parliamentarians would be regarded as “a hostile act of the UK government” by the Iranian government. His Honour further regarded it as “credible” that, given Iran had previously “flouted international law”, the risk of retaliation was sufficiently great (especially against locally-employed UK embassy staff). For these reasons, despite being sympathetic to the claimants, his Honour considered the Secretary’s decision as proportionate and justified for the purposes of article 10.2.

Relevance to the Victorian Charter

This case confirms well-established principles regarding judicial review of governmental decision-making which allegedly infringes common law and Convention rights. These include that the court will undertake only a proportionality review of the decision-maker’s decision (rather than a de novo assessment), and that where the decision involves assessment of matters which the court cannot determine easily (if at all) – here, issues of foreign policy and impact on overseas British diplomatic missions – then the decision-maker will be afforded a wide margin of appreciation.

Lord Justice Burnton’s judgment contains useful comments on the importance of the right of free expression, including its protection of the receipt (as well as the dissemination) of ideas. Although this decision may provide guidance to Victorian courts, the legitimate restrictions on freedom of expression articulated in section 15(3) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) and the general limitations provided by section 7 of the Charter differ from the restrictions provided in article 10.2 of the Convention. These differences may limit or otherwise impact upon the application of this decision in a Victorian context.

This decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/617.html

Daniel Kinsey is a lawyer at Allens Arthur Robinson.