Appeasement it may be, but exclusion of Iranian dissident not a matter for the courts

21 March 2012 by Rosalind English

Lord Carlile and others v Secretary of State for the Home Department – read judgment

The High Court has upheld an order by the Home Secretary preventing Maryam Rajavi, a prominent Iranian dissident, from speaking in Parliament. The exclusion order was imposed because of concerns about the deterioration of bilateral relationships between this country and the Iranian government, and fears that if the exclusion order was lifted there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. For further details of the Home Secretary’s decision see Henry Oliver’s excellent discussion of the case “Free Speech and Iranian Dissent in Parliament”. 

The claimants contended that the Secretary of State’s exclusion of Mrs Rajavi was unlawful, as an unjustified and perverse infringement of their common law and Convention right of free expression, rights that are all the more important and precious where those involved are members of the legislature. The court dismissed these arguments, albeit with considerable reluctance.

As Stanley Burnton LJ said this case was unusual, “perhaps unique”; unlike in other cases of exclusion, the Secretary of State has no quarrel whatsoever with Mrs Rajavi’s views nor with what she may or may not say whilst here, unlike, for example, the public speaker Dr Naik  [2011] EWCA Civ 1546) (my example, not his lordship’s; see my post on the Naik case).

Furthermore,  this country is the only member state of the European Union from which Mrs Rajavi is excluded. But the Home Secretary explains in part of her reasoning that Mrs Rajavi’s freedom to move around Europe, as a French resident, is nothing to the point.

the particular nature of the UK-Iran bilateral relationship is such that a particularly strong reaction is expected if her exclusion is lifted. The presence of a British Embassy in Tehran means that staff there are particularly vulnerable to anti-Western sentiment in general and anti-UK sentiment in particular.

When weighed against the serious potential effects of lifting the exclusion on the UK’s interests in relation to Iran, the Secretary of State concluded that the damage to the public interest significantly outweighs any interference with Mrs Rajavi’s ability to express her views here.

There can be no debate, as Henry Oliver has pointed out, about the lawfulness of the Home Secretary’s decision. This one is firmly within her jurisdiction. But where does it leave us, in terms of principle?

The politics of fear

This is not the first time that someone with rights of representation elsewhere in the EU has been barred from entry to the UK.  Not very long ago a similar fracas followed the exclusion of the controversial Dutch politician Geert Wilders, who had been invited by a group of parliamentarians to come to Westminster for a private screening of a short film juxtaposing Koranic texts with footage of terrorist atrocities.  Of course the respective individuals have absolutely nothing in common but their exclusion orders do: the restriction of parliamentarians’ right to information in response to fear.

The reaction to the Wilders case was thunderous but no-one was willing to go to the stake to defend free speech in this particular politician’s name.  But you do not need to hold a brief for Mr Wilders – or anyone, for that matter – in order to find this kind of decision distinctly uncomfortable. A few spoke up for him: crossbench peer Baroness Cox accused the British government of “succumbing to threats of intimidation”, and the Dutch government itself expressed regret at the the decision to bar Mr Wilders from the UK, saying it believed all its MPs “should be able to travel freely in the European Union”. Free speech campaign groups accused the UK government of breaking faith with the tradition of democratic debate and responding to terror by embarking on an authoritarian course of setting the boundaries of political debate.

Wilders subsequently obtained a ruling by the asylum and immigration tribunal that his exclusion had been unlawful, but arguably the damage – appeasement, cowardice, whatever you call it – had already been done. As historian Larry Siedentop commented in the Financial Times, the chief failure of those justifying Wilder’s exclusion was to fall back on the argument that there are limits to freedom of speech.

There are, but they must be drawn with restraint. To take a position that collapses together “criticism”, “insult”, “offence”, “extreme hate” and “incitement to violence” involves ignoring a legal tradition in which important distinctions are made. It involves conflating the real and the imagined in a way that gives any group with a grievance unacceptable leverage over the political system.

Fear at home or abroad?

In any event, the parallels between the Wilders and Rajavi case come to an end once we reach the court doors. The exclusion of Wilders was a decision in which a court could intervene, because it involved the question of his rights as an EU citizen to free movement, and the AIT did not accept that there was a demonstrable risk of community disharmony or disorder arising from his arrival in the country. That meant that the Home Secretary had acted unlawfully in relying on the public security exception to the relevant European freedom of movement regulations. In Mrs Rajavi’s case the central issue was the possible threat of unlawful conduct by a foreign state. The Divisional Court attached considerable importance to the fact that the decision to exclude Mrs Rajavi had been made on the  recommendation of the Secretary of State for Foreign and Commonwealth Affairs and the Parliamentary Under-Secretary of State at the FCO. As Stanley Burnton LJ said,

If they consider that the risk is sufficiently great to justify Mrs Rajavi’s exclusion, this Court is not in a position to say that is mistaken.

The judges reluctantly followed the line taken in R (Corner House Research and another) v Director of the Serious Fraud Office. This was a decision by the Director of the Serious Fraud Office to halt a criminal investigation in response to a threat from a foreign national was lawful, as the public interest in saving British lives abroad outweighed the public interest in pursuing a conviction.

In his thought-provoking analysis of the case,  Alex Ballin QC asks on Informm’s blog whether the Divisional Court’s conclusion is not “close to an abdication of the Court’s proper duty under the Human Rights Act to ensure that only proportionate interferences with Article 10 rights are permitted”.

These “intimidation” cases provide a stark illustration of the incoherence at the core of free speech.  Both these decisions to prevent the flow of information in these circumstances were made on empirical grounds, on a calculation of likely outcomes, and not on the grounds of free speech principles that are thought to be indifferent to outcomes. The government is saying in both cases that our way of life is a thin achievement easily threatened by violence both here and abroad if certain individuals are allowed to air their views. It may be more useful then to consider them instead as right to information cases, since they both involve the important matter of parliamentarians receiving – or being prevented from receiving – information. Why it is that the right to information, though bracketed together in the first limb of Article 10, seems to carry less weight than the right to free speech?

As David Hart says in his post, the boundaries of the right to receive information are still being worked out at the moment. It is a fascinating area, and one can only hope that developments here will import some clarity into the right to freedom of expression, with its bright lines that no-one can actually see, and the unpredictability of its operation as the exceptions to its rules proliferate.

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