Dr Naik, hate speech and the principle of expectation

29 December 2011 by

The Queen on the application of Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546 – read judgment

The Court of Appeal has confirmed that the exclusion of an Indian Muslim public speaker  from the United Kingdom after making statements which breached the Home Office’s “unacceptable behaviours policy” was lawful,  and that any interference with his rights was justified.

We posted previously on the original exclusion of Dr Naik from the United Kingdom, and reported on his subsequent address by sattelite link to the Oxford Union.

The appellant had regularly visited the UK since 1990 on public lecture tours. In 2008 he was granted a five-year multiple entry visitor visa. In 2010, two days before he was due to arrive in the UK on a lecture tour, the secretary of state excluded him and revoked his visa. She considered that he had made a number of statements which were supportive of terrorists, such as Osama Bin Laden, and breached the “unacceptable behaviours policy” for exclusion from the UK.

The decision was based on the fact that several of his statements fell within the Home Office’s “Unacceptable Behaviour Policy”, an indicative guide to types of behaviour which would normally result in grounds for exclusion, and that his presence would not be conducive to the public good.The Administrative Court dismissed Dr Naik’s application for judicial review of this decision, holding that the Secretary of State’s responsibility for the protection of national security is a central constitutional role, and encompasses a duty owed to the public at large. It could not be overridden by reference to any representation or practice relating to an individual entrant.

 The appellant submitted that on the basis of previous decisions to allow him entry, he had a legitimate expectation that he would be allowed entry clearance on this occasion. He still maintained that the exclusion breached his rights under Article 10 of the European Convention on Human Rights 1950.

The Court of Appeal’s reasoning

Appeal dismissed. Cranston J in the court below was clearly right to conclude that the course of conduct in issuing visas over many years could not give rise to an expectation that the Home Secretary had considered and formed a view on whether the appellant’s entry was conducive to the public good.  In any event, the secretary of state’s responsibility for the protection of national security was a central constitutional role, and encompassed a duty owed to the public at large. It could not be overridden by reference to any representation or practice relating to an individual entrant. Nothing done by previous Home Secretaries could detract from the responsibility of the present Home Secretary to make her own decision on the material before her at the time.

The reach of Article 10 to non-Convention countries

There was a jurisdictional question concerning the reach of Article 10. Could Dr Naik,  as an alien not physically within the country, invoke a right to communicate his views under that provision, or was Cranston J correct in finding that any Article 10 rights were limited to those of his followers in this country to hear him? In R (on the application of Farrakhan) v Secretary of State for the Home Department (2002) EWCA Civ 606 the Court of Appeal had concluded that where an alien was refused entry  for reasons that were wholly independent of his Convention rights, the fact that this carried the consequence that he could not exercise those rights in the territory from which he was excluded would not constitute a violation of the Convention.

In the instant case the Court of Appeal found that it was not necessary to reach a final decision on this jurisdictional question. There was a line of more recent Strasbourg authorities that supports a wider view of Article 10 than that in Farrakhan, which place the  emphasis on the words “regardless of frontiers”. Thus, in Cox v Turkey  (20 May 2010), the Strasbourg Court held that Article 10 was engaged by the ban on the re-entry of a US woman who had expressed strong views on issues of Kurdish assimilation and the treatment of Armenians. That case provided “persuasive support” for the argument that article 10, at least, was not limited by the same strict principle of territoriality as applies to other parts of the Convention.

 It is difficult to see any logic in treating an applicant less favourably because he takes the sensible course of applying for entry clearance from abroad, rather than simply arriving at border control at Heathrow. If a more substantive connection with this country is required, it can be found in Dr Naik ‘s previous unobstructed visits to this country, his large body of supporters here, and his extant multiple entry visa.

The justification for the ban

There were essentially three questions for the secretary of state: whether the appellant had engaged in the types of behaviour listed in the Unacceptable Behaviour Policy; if so, whether he had repudiated such views and demonstrated publicly that he had done so; and lastly, whether his exclusion was proportionate in relation to the policy’s legitimate aims. Some of the statements made by the appellant seemed provocative and inflammatory, and the secretary of state could fairly take the view that they brought him within the terms of the policy.

Dr Naik refuted the claims that his statements were inflammatory, including his declaration that the Jews are “the staunchest enemy” of Muslims, which was part of a discussion in Mumbai in 2007. His refutations cut no ice with Cranston J below, who held that the Secretary of State was entitled to conclude that Dr Naik ‘s explanations “unjustifiably marginalised” the importance of some of the statements, used “semantic argument”s to avoid the import of others, and failed to grapple with the substance of others. Carnwath LJ agreed:

The stark message to an ordinary listener of statement 1 (“every Muslim should be a terrorist to every anti-social element”) is hardly mitigated by the explanatory reasoning which surrounds it. [para 69]

The Court of Appeal concluded that those of the appellant’s statements which he tried to refute could not be discounted as an unrepresentative sample of his utterances. He had not satisfied the burden of demonstrating that he had publicly repudiated the views which had brought him within the policy. The necessity for restricting the appellant’s Article 10 rights had therefore been convincingly established .

Comment: free speech and hatred

Although it is hard to disagree with Gross LJ that this is essentially an “immigration case” rather than a freedom of speech case,  in the sense that the Secretary of State was required to consider whether Dr Naik , a non-national, should be permitted entry into this country, the public interest in freedom of expression naturally forms the focus of the debate. As Gross LJ observed,

the decision of the SSHD here was made against the background of a society with as strong a tradition of freedom of expression as is to be found anywhere.

These hate speech cases, particularly since 9/11 (when inflammatory public speaking started to focus on religious divisions rather than political ones) encapsulate all the contradictions at the heart of free-speech valuing societies. Modern liberal societies permit and even invite speakers with forceful agendas, but only on our own terms. So religion can be part of the market of free ideas so long as it renounces its claim to have a privileged purchase on the truth, which of course is the claim that defines a religion as a religion as opposed to a mere opinion.

How to resolve this impasse? Bring on the universal balm of human rights.  The language of rights is useful because it can define figures like Dr Naik in terms of his rights under Article 10, rather than the content of his beliefs, so that his right to speak and his audience’s rights to hear are what important and must be protected, rather than what he believes, or happens to say. This moral contortionism results in arguments and refutations that are sometimes taken seriously, although ultimately not, in this case. As Gross LJ observes, Dr Naik’s explanation that he used the word “terrorist” to support terrorising “anti-social elements” is difficult enough to follow on its own terms, even with time to analyse the written word; this “convoluted explanation” would simply be lost on a “live” audience.

In any event, the notion that for a robber, a policeman is a “terrorist”, belongs in the realms of linguistic fantasy.

And Carnwarth LJ was equally damning about Dr Naik’s attempts  to explain away his statement at a public meeting that “…every Muslim should be a terrorist…”

The audience at a public meeting addressed by Dr Naik cannot be expected – or safely assumed – to engage in refined textual analysis to discern that there is or may be some different message which Dr. Naik is seeking to convey.[para 99]

The hard truth of the matter is that inclusion of all points of view, such as Dr Naik’s, is not  an attainable goal, under the European Human Rights Convention or anything else. We must question whether it is even a worthy goal to obtain, because if we legitimised all points of view we default on the responsibility of a free society to protect those freedoms. That is why notions of “unacceptable behaviour” are necessary – to prevent individuals such as the appellant from asserting interests inimical to those freedoms and then disguising them with high-sounding abstractions (Naik’s calls for peace and brotherhood between nations, etc).

The “clawback” provisions in article 10(2) therefore play a very important role in allowing the authorities, and the courts, to restrict the expression of thoughts, which, if brought into effect, would undermine the very basis on which common law and Convention rights exist.

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6 comments


  1. frednach says:

    I have read the original article in the Guardian by Rosa English which is reprinted above and wish to make a couple of observations.

    It is trite law that ‘freedom of speech cannot protect a man who shouts fire across a crowded theatre’ to quote Justice Holmes (Article 10 rights are discretionary as opposed to absolute). I must assume in the absence of transcript or records that Dr Niak made the derogatory or unacceptable comments which excluded his entry to the UK. However, it is interesting to note that the courts construed this decision by the HS to be essentially an Immigration matter as opposed to a HR issue,namely freedom of speech. On this issue I believe the two concepts are intrinsic, as one issue cannot be separated from the other, presumably Dr Naik posed a security threat stemming from for his statements (speech) which he refutes.

    Equally, I believe that an attempt to separate the concept of ‘right to free speech’ as opposed to one’s belief is fundamentally flawed, If Dr Naik holds such unacceptable beliefs but chooses not to air with an audience to satisfy the authorities this cannot be conducive to civil society nor a safeguard of public for he may wait another time when the dust is settled and then express his true ideals by then the safeguard and protection of the public would have failed. I would venture to add what is important what one says in public or what one holds dear in belief and in practice? To bridge such anomolies in my view it is important to tackle and unearth such foul beliefs and practices not by exclusion but inclusion through debate, dialogue and discussion which of course can take place outside the UK.

  2. […] post originally appeared on UK Human Rights Blog and is reproduced with permission and thanks. Share this:PrintEmailTwitterFacebookLike this:LikeBe […]

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  4. ivysmith93 says:

    i do not know if the home office has the enough evidence about the indian support terrorist, but id like to say if the home office have , why they did not arrest him?

  5. Steel band says:

    It is surprising how few comments there are in response to this.

  6. Ismail Bhamjee says:

    THE UNITED DECLARATION ON INDEPENDENCE ON COLONIAL COUNTRIES
    SIGNED IN 1960.

    ARTICLE 7. INTERFERENCE IN OTHER COUNTRIES

    PLEASE KINDLY PUBLISH THE UNITED DECLARATION ON INDEPENDENCE SIGNED IN 1960.

    THE COUNTY COURTS ACT 1984 Section 23, 38, 76 and Schedule 2.

    Section 11 and 119 of the Courts and Legal Services Act 1990.

    this has not been taken into consideration by the High Court and Court of Appeal Judges in the United Kingdom, which causes injustice to many other Citizens.

    Dr Zakir Naik whom I have not seen personally, but have heard his speech on the Internet, as He does express his views and opinion in accordance with Section 13 of the Human Rights Act 1998 and Article 9 of the Convention Treaties.

    I thank you in advance

    Yours Faithfully

    Ismail Abdulhai Bhamjee.

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retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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