Government may weigh rights against national security without courts’ interference

Mujahedin-e-Khalq-OrganizatR (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment

The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).

At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.

The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment.

Background facts and law

Mrs Maryam Rajavi is a dissident Iranian politician, resident in Paris. She has close links with Iranian opposition organisations, including Mujahedin e-Khalq, otherwise known as the People’s Mojahedin Organisation of Iran. MeK is a political organisation founded in 1963 by opponents of Shah Mohammed Reza Pahlavi, which participated in the Iranian revolution of 1979 but subsequently fell out with the regime led by Ayatollah Khomeini. It was formerly a proscribed terrorist organisation under Section 3 of the Terrorism Act 2000  but is now designated as non-violent. It goes without saying that the lifting of this proscription is not accepted in Iran, where MeK remains an illegal organisation.

In 1997, the Home Secretary excluded Mrs Rajavi from the UK on the ground that her presence “would not be conducive to the public good for reasons of foreign policy and in light of the need to take a firm stance against terrorism”. That exclusion remains in force. In December 2010, Lord Carlile of Berriew, together with two other members of the House of Lords, asked the Home Secretary for a meeting to discuss lifting the exclusion to enable Mrs Rajavi to address meetings in the Palace of Westminster. After seeking the advice of the Foreign Office, the Home Secretary replied in February 2011 stating that she had concluded that Mrs Rajavi’s admission to the UK would not be conducive to the public good. She set out detailed reasons for this decision, noting in particular that

It is widely recognised that the MeK was actively concerned in terrorist activities between the 1970s and 2001. Acts committed by the MeK during this period include attacks on western interests …The MeK’s history of terrorist violence until June 2001 and involvement in the Iran/Iraq war, where it was fighting with Iraqi forces against Iran, continues to resonate today. It has resulted in there being little support for the group among the general population in Iran, including anti-regime organisations, demonstrators and oppositionists.

Lord Carlile and other members of the House of Lords wrote a letter threatening judicial review, which elicited a response from the Home Office asserting that Articles 9 and 10 of the European Convention on Human Rights were not engaged but that the decision was in any event justified and proportionate. Lord Carlile and others then went ahead with judicial review proceedings, arguing that the decision contravened their freedom of belief and expression rights under the Convention. Mrs Rajavi herself later joined as a claimant. The Home Secretary issued second and third decisions in October 2011 and January 2012, supported by evidence from the Foreign Office, stating that lifting the exclusion would cause significant damage to the UK’s interests in relation to Iran and place British people and property in Iran and the region at risk. It is now common ground that Article 10 is engaged in relation to both Mrs Rajavi and the members of the House of Lords. But was the Home Secretary’s decision justified and proportionate? Both the judge and the Court of Appeal held that it was. The claimants appealed to the Supreme Court.

The Supreme Court dismissed the appeal by a majority of 4-1 (Lord Kerr dissenting).

Reasoning behind the Court’s decision

Lord Sumption delivered the leading judgment. The other three majority judgments give similar reasons, but with differences of nuance.

The threshold argument

The claimants argued that the Home Secretary’s reasons were legally irrelevant, because they depended on the potential reaction of a foreign state which did not share the values embodied in the Convention. The Supreme Court unanimously rejected this argument. Iran’s reaction was plainly factually relevant to the decision, and the correct emphasis was on the democratic values to be protected, not the circumstances prompting the need for protection [14-18, 63, 144-146].

Was the Home Secretary’s decision justified and proportionate?

A predictive judgment of the executive about the likely reaction of a foreign country to a decision of the United Kingdom government is ordinarily entitled to a large measure of respect from the courts both (i) because the constitutional separation of powers assigns such judgments to the executive, and (ii) because the executive has greater institutional competence in this area by virtue of its greater specialised experience and the wider range of advice available to it (see my previous post on Lord Sumption’s recent  lecture on this very topic, particularly his point about the overuse of the word “deference” in this context).

A threat to British persons or interests is one potential consequence which in an age of widespread international lawlessness, some of it state-sponsored, is unfortunately more common than it used to be. The existence and gravity of the threat is a question of fact. It cannot rationally be regarded as any less relevant to the public good because it emanates from a foreign state as opposed to some other actor, or because that state does not share our values, or because the threat is to do things which would be unlawful by our laws or improper by our standards, or indeed by theirs. [15]

The future is a foreign country, as L P Hartley almost said. They do things differently there. Predicting the likely consequences of a step which the evidence suggests will be viewed in Iran as a hostile act, cannot be a purely analytical exercise. Nor can it turn simply on extrapolation from what did or did not happen in the past. There is a large element of educated impression involved. The decision calls for an experienced judgment of the climate of opinion in Iran, both inside and outside that country’s public institutions. The exercise is made more difficult by the intense political emotions engaged in Iran, combined with a large element of irrationality and the involvement of potentially violent mobs. The consequences of a failure to engage with this complex and unstable society are sufficiently serious to warrant a precautionary approach. [46]

Lord Sumption cites with approval Lord Hoffmann’s observation in another exclusion case, on the question of institutional competence of the executive in matters of national security, where “the cost of failure can be high”.

“This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.” (Secretary of State for the Home Department v Rehman [2003] 1 AC 153)

The Human Rights Act 1998 did not abrogate the constitutional distribution of powers between the organs of the state which the courts had recognised for many years before it was passed. And even in the context of Convention rights, there remain areas

which although not immune from scrutiny require a qualified respect for the constitutional functions of decision-makers who are democratically accountable. Examples are decisions involving policy choices (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at paras 75-76); broad questions of economic and social policy (Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at para 70); or issues involving the allocation of finite resources (Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 at para 41 (Brooke LJ)).

Where qualified rights under the Human Rights Convention are engaged, such as the Article 10 rights at issue in this case, the court must decide for itself whether they have been interfered with and if so whether the interference is justifiable. In this case, according to Lord Sumption, the executive’s decision was rational, there were no grounds to challenge the good faith or the evidential base of the decision, and the Secretary of State had committed no error of principle, nor had she underrated the value of Article 10 rights or overstated the risk [19-47, 51].

 It does not follow from the court’s constitutional competence to adjudicate on an alleged infringement of human rights that it must be regarded as factually competent to disagree with the decision-maker in every case or that it should decline to recognise its own institutional limitations. [32]

The other judges agreed. In Lord Neuberger’s view, the Home Secretary’s decision was proportionate and the Article 10 rights did not outweigh the risks she had identified [70-74]; in Lady Hale’s opinion, on the basis of evidence now some years old, it had not been shown that the article 10 right claimed was sufficiently important to put at risk the UK’s “fragile but imperative” relationship with Iran [98-109]; and Lord Clarke concluded that there was no evidence before the court permitting it to doubt the strength of the Home Secretary’s reasons [111-117].

It is important to understand the reasons why the United Kingdom has had a more difficult relationship with Iran than other countries have, which still affect the way that it is perceived there.  Lord Sumption, taking a characteristically scholarly approach, noted the particular historical context of this fraught association, following British control of the country’s natural resources in the late nineteenth century and the first half of the twentieth, a succession of British-orchestrated coups, and two extended British military occupations, all of which

have combined to leave an enduring imprint on political sentiment. The passage of time heals many things, but in an ancient and distinctive national culture like Iran’s, injured pride can subsist for generations. In recent years, the participation of the United Kingdom in international sanctions against Iran and a number of violent incidents have revived old suspicions at a time when negotiations with Iran about middle eastern issues, nuclear non-proliferation and human rights have assumed considerable importance for British interests and global security.

However sensitive this position may be, it remains the case that the UK has diplomatic relations with Iran. There is a British Embassy in Tehran and an Iranian Embassy in London. As the Secretary of State told the appellants in her letter, the UK has a strong interest in working with Iran on major policy issues including nuclear counter-proliferation, wider issues in the Middle East and human rights. Cooperation between both countries on issues of mutual importance also include reciprocal visa services (both diplomatic and public), consular services and cultural/educational exchanges. Allowing Mrs Rajavi into this country would only exacerbate the perception that “the UK is supportive of anti-Iranian extremist activities, including the sort historically carried out by the MeK.” The lifting of her exclusion may well “result in accusations, however unjustified, of double standards in respect of the condemnation of terrorism”:

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. There is substantial concern that if bilateral relations were to deteriorate as a consequence of the lifting of the exclusion order, there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic.

Accordingly, although the Court of Appeal was wrong to approach the issue on the usual domestic judicial review grounds, the appeal was dismissed.

Lord Kerr’s dissent

Lord Kerr acknowledged that the courts should accord respect to the executive’s assessment of the risks and consequences of Mrs Rajavi’s being admitted to the UK, though it is not required to “frank” that decision. However, it was for the court to assess the importance of the right infringed. In his view, contrary to Lord Sumption’s position, the court was both competent and constitutionally required to make such an assessment and it would be an error to attach special weight to the Home Secretary’s view on this point [150-162]. In this case, only the most compelling and pressing circumstances would justify a restriction on the right. The Home Secretary had identified solid countervailing factors, but the court should take into account the fact that these matters are unpredictable and that any retaliation would be perverse and rooted in anti-democratic beliefs. The risks could not be precisely identified but the interference with the Article 10 right is direct and immediate [163-180].

Lord Sumption dealt with this dissent in his speech. He pointed out that the central issue on this appeal was exactly how the court is meant to determine where the balance lies between national security on the one hand, and freedom of expression on the other,  if

  1.  it has no means of independently assessing the seriousness of the risks or the gravity of the consequences were they to materialise, and
  2. the Secretary of State is not shown to have committed any error of principle in her own assessment of them.

For that is indeed the position in which the court finds itself. We are not in point of law bound to accept the factual assessment of the Foreign Office about the impact on our relations with Iran of admitting Mrs Rajavi to the United Kingdom. But if we reject it we must have a proper basis for doing so. In this case, there is none. …We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the Foreign Office. [49]

Lord Kerr was, in effect, urging “nothing less than a transfer to the courts of the constitutional function of the Home Secretary, in circumstances where the court is wholly incapable of performing it.”

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