[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWCA Civ 199
||Case No: C4/2012/0943
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Rt. Lord Justice Stanley Burnton and
The Hon. Mr Justice Underhill
 EWHC 617 (Admin)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
Lady Justice Arden
Lord Justice Patten
Lord Justice McCombe
|| The Queen (Lord Carlile of Berriew & others)
||- and -
||Secretary of State for the Home Department
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Clare Montgomery QC and Mr Raza Husain QC (instructed by Mischon de Reya) for the Appellants
Mr James Eadie QC and Mr Robert Palmer (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 15/16 January 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice Arden:
THIS APPEAL IN OUTLINE
- The principal appellants ("the Parliamentary appellants") are 15 eminent cross-party members of the House of Lords and the House of Commons. They complain about the interference with their rights caused by the Secretary of State's decisions to exclude Mrs Maryam Rajavi, the last appellant on this appeal and an eminent dissident Iranian politician now residing in Paris, from the United Kingdom. They wish to invite her to address meetings to be held in the Palace of Westminster to discuss democracy, human rights and other policy issues relating to Iran. Mrs Rajavi is willing to come to the United Kingdom.
- The Secretary of State's decisions exclude Mrs Rajavi on the grounds that her entry into the United Kingdom would not be conducive to the public good. The reasons are based principally on foreign policy and security grounds, not on fears about Mrs Rajavi's conduct here.
- The issue is whether, as the Divisional Court held on 16 March 2012, there is justification for this interference with the appellants' rights pursuant to article 10 of the European Convention on Human Rights ("the Convention"), particularly the Parliamentary appellants' rights to hear Mrs Rajavi in the United Kingdom. In the Divisional Court, Stanley Burnton LJ gave the leading judgment, with which Underhill J agreed.
- The Secretary of State made her decisions on the recommendation of the Foreign Secretary and the Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office ("FCO"). They consider that, if the Secretary of State permits Mrs Rajavi to enter the United Kingdom for the desired purpose, there will be not only representations by the government of Iran and demonstrations, but also a risk of unlawful reprisals. The present apprehended risk includes the risk of damage to the British Embassy in Tehran, and mistreatment of the Embassy's local staff.
- The appellants contend that the right to freedom of expression is particularly important where those involved are members of the legislature and the meeting is to be held in the Palace of Westminster. 180 members of both Houses have indicated their intention to attend, including former Secretaries of State and members with expertise in foreign policy and security matters. It is said that there is likely to be a valuable exchange of views at such a meeting and the views may influence policy-making at the highest level on important foreign policy issues.
- The appellants contend that the Divisional Court abdicated its role of considering the proportionality of the exclusion decisions with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, gave inadequate weight to the rule of law. It was perverse to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore there had been unfairness in failing to consult the Parliamentary appellants.
Outline of my decision
- I conclude below that this appeal should be dismissed, and my principal reasons may be summarised as follows:
i) The Divisional Court had to balance the value of the appellants' article 10 right against the interests of national security and foreign policy on which the Secretary of State relied.
ii) The value of the Parliamentary appellants' exercise of their article 10 rights in this case is exceptionally high.
iii) The Divisional Court had to ask whether the interference with the Parliamentary appellants' rights was no more than necessary to achieve the Secretary of State's objectives. In the context of national security and foreign policy, this is achieved as the Divisional Court held by a review of the Secretary of State's decisions for rationality, legality and procedural irregularity, not by the substitution by the court of its own judgment on the merits.
iv) The Divisional Court's assessment of the decisions on these grounds cannot be faulted.
v) It therefore cannot be said that the Divisional Court abdicated its judicial function.
vi) Nor can it be said that the decisions gave inadequate weight to the rule of law.
vii) There was no unfairness in failing to consult the Parliamentary appellants.
viii) The same conclusions would apply to any Convention right which Mrs Rajavi may have.
- Before I develop my reasons I will first set out the background about Mrs Rajavi, the organisations referred to below as PMOI and NCRI and relations between the United Kingdom and Iran. Then I shall summarise the reasons given by the Secretary of State for her decisions. After that, I will amplify the reasons for my decision stated in the preceding paragraph of this judgment.
Background about Mrs Rajavi
- In summary, Mrs Rajavi is the leader of two groups in Iran opposed to the government there. She is the de facto leader of the People's Mojahedin Organisation of Iran ("PMOI") and the "President-elect" of the National Council for the Resistance of Iran (NCRI) since 1993. Some observers, including the US Government, treat the two organisations as the same. I shall need to give some more details about these two organisations after I have explained the work which Mrs Rajavi currently undertakes in addressing European legislatures.
- As Stanley Burnton LJ explained in paragraph 3 of his judgment, Mrs Rajavi is recognised internationally as an expert on Iranian political affairs and the position of women in Islam. The Parliamentary appellants contend that, as a woman and a Muslim, she provides an important counterpoint to the religious and political beliefs of the present regime in Iran.
- Mrs Rajavi has visited the United Kingdom on four previous occasions, without any consequences to British interests.
- The Secretary of State had no dispute with what Mrs Rajavi might say.
- Other member states of the EU have admitted Mrs Rajavi. The Divisional Court noted that Mr Alejo Vidal-Quadras, a Vice-President of the European Parliament described Mrs Rajavi as "the leading expert on Iranian affairs". The Divisional Court continued:
"She is a powerful advocate for a democratic non-sectarian government for Iran: hence the undoubted hostility to her of the present Iranian government. Mr Vidal-Quadras says of her that 'She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. …. I found Mrs Rajavi to be a true believer of gender equality and freedom of thought and religion, committed to the rule of law and a very responsible leader. She has done much to promote religious tolerance. …' "
- Mrs Rajavi has attended a dozen meetings at the European Parliament, most recently in February 2012. Mr Alejo Vidal-Quadras' evidence about these meetings is directed to underscoring the value of engagement with her:
"Face to face meetings allow MEPs and their advisers to question Mrs Rajavi and spend time with her addressing a range of sensitive issues. They could not possibly do this through other means of long distance communication."
- There is a considerable amount of other evidence which speaks exceptionally highly of Mrs Rajavi. For instance, Lord Carlile states in his witness statement:
"9. … Mrs Rajavi is a Muslim woman who stands for a free, democratic and secular Iran. She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. It is for these reasons that she enjoys the support of thousands of Parliamentarians around the world."
- I turn next to describe the organisations with which Mrs Rajavi is connected and then summarise the evidence on the relations between the United Kingdom and Iran.
Background about PMOI and NCRI
- Mrs Rajavi's role in PMOI is as Chair. She became co-Chair with her husband, Masoud Rajavi, in 1985. Mrs Rajavi was Secretary-General of the PMOI from 1989 to 1993. NCRI was founded as a movement broader than PMOI, but became and remains dominated by PMOI. PMOI is widely and correctly known by the Farsi name 'Mujahedin-e Khalq' or 'Mujahedin-e Khalq Organisation'.
- From the early 1980s until 2001 or 2002, PMOI carried out violent activities directed against Iran, from 1986 principally from their base in Iraq 60 miles north of Baghdad (Camp Ashraf). It had participated in the 1979 Islamic Revolution that replaced the Shah with a Shiite Islamist regime led by Ayatollah Khomeini. However, PMOI's ideology, described by the US State Department Country Report on Terrorism 2010 as "a blend of Marxism, feminism, and Islamism", was at odds with the post-revolutionary government and most of its original leadership was soon executed by the Khomeini regime. In 1981, its leadership and some members fled Iran. The leadership resettled in Paris, where they began supporting Iraq in its war against Iran. In 1986, after France recognized the Iranian regime, PMOI moved its headquarters to Iraq. This facilitated its terrorist activities in Iran.
- PMOI was a proscribed organisation under the Terrorism Act 2000 from 29 March 2001 until 30 November 2007. On that date, the Prescribed Organisations Appeals Commission ("POAC") allowed an appeal against the Secretary of State's refusal to de-proscribe the organisation. POAC found that there had been a significant change in PMOI's activities dating from June 2001 onwards, and that PMOI could no longer be said to be concerned with terrorism within the meaning of section 3 of the Terrorism Act. The Secretary of State appealed to this court. In 2008, a constitution of this court, of which I was a member, upheld POAC's decision (see  EWCA Civ 443).
- Significantly, this court held that the decision-making had
"signally fallen short of the standards which our public law sets." (paragraph 57)
- PMOI has similarly been de-proscribed, without any material adverse effect, in the following jurisdictions:
(1) the European Union (January 2009) following numerous adverse judgments from the Court of Justice of the European Union.
(2) the USA (September 2012).
(3) Canada (December 2012).
- Lord Carlile reports that delisting in the USA had no wide ranging, or negative, impact on US interests and that there was no reaction from the Iranian regime.
Background: Current diplomatic relations between the United Kingdom and Iran
- The evidence filed on behalf of the Secretary of State is that the United Kingdom has a more difficult relationship with Iran than some other western countries for historical and political reasons. Iran characterises United Kingdom as "little Satan" and the United Kingdom is therefore especially targeted.
- Diplomatic relations between the United Kingdom and Iran are now at a low ebb. In November 2011 there was what is considered to have been an Iranian government-sponsored attack on the British Embassy in Tehran. As a result, the United Kingdom government withdrew all diplomatic staff of the British Embassy from Tehran and closed the Iranian Embassy in London. Nominally the attack was to mark the first anniversary of the death of an Iranian nuclear scientist for which Iran considered the United Kingdom was responsible. Lord Carlile states that there is no evidence that the invasion of the British Embassy in Tehran in November 2011 was the result of any act concerning PMOI as opposed to the very severe financial sanctions that had been imposed on Iran by the UN at the instigation of the United Kingdom and others shortly before this event.
- As the Divisional Court noted there have also recently been press reports of the possibility of military action in Iran.
Reasons for Secretary of State's decisions to exclude Mrs Rajavi became narrower after diplomatic relations were severely reduced in November 2011
- The original decision to exclude Mrs Rajavi was made in 1997. However, the decisions of the Secretary of State in issue in these proceedings are dated 1 February 2011, 10 October 2011 and 24 January 2012. As the Divisional Court observed, they were all made after the de-proscription of the PMOI by POAC. Each of these decisions was made by the Home Secretary personally, on the advice of the FCO.
- The Secretary of State's first impugned decision of 1 February 2011 was unreasoned and stated only that the Secretary of State did not consider Mrs Rajavi's presence in the United Kingdom to be conducive to the public good.
- The Secretary of State's second impugned decision of 10 October 2011 was fully reasoned. It was made after the bringing of these proceedings, and after consideration by the Secretary of State of the evidence then served in these proceedings. It explained that PMOI was illegal in Iran. In summary, the decision gave the following non-exhaustive reasons:
- PMOI's historical involvement in terrorist activities, including attacks on Western interests:
"In particular the FCO does not agree with Lord Carlile's own assessment that Mrs Rajavi 'leads the movement for democratic change in Iran' (paragraph 22 of his witness statement)."
- The United Kingdom's diplomatic relations with Iran. Reference was made to the United Kingdom's interest in working with Iran on major policy issues including nuclear counter-proliferation, wider issues in the Middle East and human rights.
- The effect of the difficult relations between the United Kingdom and Iran:
"The Iranian regime perceives that the United Kingdom is supportive of anti-Iranian extremist activities, including the sort historically carried out by the PMOI."
The decision letter concluded:
- The effect of lifting the exclusion order:
"This would also be seen by the Iranians as a deliberate political move against Iran…"
- Fragile bilateral relations:
"Even when tensions periodically ease, the United Kingdom based staff members' access to Iranian officials and information from the authorities has been difficult. Demonstrations outside the Embassy have included damage to property, invasion of compounds and restriction of staff movement due to the fears for personal safety. There have also been cases where British nationals have been held in detention for long periods, often on spurious charges and sometimes without consular access being granted."
"When weighed against the serious potential effects of lifting the exclusion on the United Kingdom's interests in relation to Iran, the Secretary of State has concluded that the damage to the public interest significantly outweighs any interference with Mrs Rajavi's ability to express her views as President-elect of the NCRI and with the Parliamentarians' ability to meet her in person in London, particularly in view of the fact that Mrs Rajavi has many alternative means at her disposal for achieving these aims (e.g. meeting in France or a third country, or contact by video-link or other media)."
The Secretary of State also rejected Mrs Rajavi's claims under articles 8 and 9 of the Convention.
The Secretary of State took her third impugned decision of 24 January 2012 following the attack on the British Embassy in November 2011, and the submission of amended grounds of judicial review and further evidence by the appellants. The Secretary of State gave the following reasons for maintaining the exclusion of Mrs Rajavi:
- The lifting of Mrs Rajavi's exclusion would be interpreted in Iran by both the regime and the people as a demonstration of United Kingdom support for what continues to be perceived as a terrorist organisation hostile to Iran (as PMOI remains an illegal organisation in Iran).
- Iran continues to regard Mrs Rajavi as the leader of a terrorist organisation and often cites the POAC judgment, which removed PMOI from the United Kingdom's list of proscribed organisations, as evidence of United Kingdom support for terrorism.
- The complicity of the Iranian regime in the invasion of both United Kingdom diplomatic compounds in Tehran on 29 November 2011 clearly demonstrated that the United Kingdom is the prime target in Iran for anti-Western sentiment in the absence of US and Israeli embassies (a view which would be supported by almost any impartial academic or commentator).
- Following the events of 29 November 2011, the lifting of Mrs Rajavi's exclusion from the United Kingdom could also be perceived by Iran as a purposeful political response to the 29 November attack on the British Embassy, increasing the likelihood of an adverse Iranian response.
- The case for exclusion was not based purely on foreign policy grounds but also on grounds of United Kingdom security, especially the safety of HMG staff in Iran (there remain over one hundred local employees in Iran), the protection of United Kingdom assets that remain in Iran, and the security of United Kingdom personnel in the region. The assessment of risk has increased since the 29 November attack as Iran has demonstrated that it is prepared to sanction actions that breach international law.
The Secretary of State stated that she had carefully considered all the available evidence but decided that Mrs Rajavi's exclusion from the United Kingdom had to be maintained on grounds including concerns about the welfare of British personnel and interests overseas and that her exclusion was proportionate to any limited interference with either her own or the relevant Parliamentarians' rights, including the right to freedom of expression.
- The Iranian regime would seek to respond to the lifting of the exclusion either by targeting British interests in Tehran, putting the Embassy's local staff at risk, and/or the potential shift of risk to British Interests and properties outside Iran which could then bear the brunt of any retaliatory action against the United Kingdom, both within and outside the region.
Two witness statements by Mr. Ken O'Flaherty, a senior civil servant at the FCO, have been filed. The first, dated 10 October 2011, was written after the de-proscription of PMOI but before the invasion of the British Embassy in November 2011, and so I need refer only to his evidence about the effect of the de-proscription. Mr O'Flaherty said that the de-proscription led to political protests and demonstrations. He concluded that the lifting of the exclusion order would have a significant adverse impact on relations between the United Kingdom and Iran. He gave the example of the safety of personnel and property at the British Embassy in Tehran. He described two acid bombs thrown into one of the British compounds where children were playing at the British School in Tehran. (Happily no-one was injured.) In addition, he referred to outstanding requests from the Iranian government for assistance with their case against PMOI terrorist plots. He stated that he did not agree with the Parliamentary appellants' assessment of the position of the PMOI in Iran.
Mr O'Flaherty's second witness statement dated 24 January 2012 describes the attack on the British embassy in November 2011 in retaliation for sanctions. He states that thereafter British interests in Iran were focused on the Embassy itself and the 100 or so local staff who looked after the site and buildings. He considers that there was also a risk to British interests elsewhere in the region. Mr O'Flaherty stated:
"6. Taking into account this change in the United Kingdom's relationship with Iran, the FCO reassessed its arguments with regard to Maryam Rajavi's current exclusion from the United Kingdom since my last written statement to the Court. The FCO has concluded that it is right to maintain our view that to lift the exclusion on Mrs Rajavi would damage existing United Kingdom interests in relation to Iran. Specifically, it would endanger the security of the Locally Engaged members of staff still employed by the British Embassy Tehran (over one hundred including our guard force), who for years have suffered severe harassment from the Iranian authorities (including the arrest in 2009 of nine members of local staff falsely accused of instigating and fuelling, on behalf of the British Government, protests after the disputed Presidential election). They continue to carry out essential work for us, such as repairs to the damage caused by the invasion of our compounds. Additionally, it could jeopardise remaining British Embassy property and assets in Iran. We are also mindful of the potential risk to British interests outside Iran, especially in the region, which could now become the target of choice for any retaliatory action against the United Kingdom. Following the attack on our Embassy, and while our assets in Tehran remain at risk, we attach greater weight now to this threat. The regime has also threatened – most recently the Head of the Judiciary, Sadeq Larijani, on 18 January – an increase in terrorism in the West in retaliation for acts and provocations, including the assassination of nuclear scientists."
Mr O'Flaherty described the relationship with Iran as delicate where any move could be interpreted as calculated. He continued:
"In my previous statement, I referred to the risks to the British Embassy Tehran, our staff, properties and assets. Unfortunately, our assessment of the credibility of this threat was borne out by the events of 29 November 2011, which show that Iran is prepared to act against the United Kingdom in contravention of international law on diplomatic relations. Additionally, my original list of United Kingdom interests, namely the safety of personnel and property at the British Embassy in Tehran, nuclear negotiations, consular obligations, human rights and access to officials remains valid, notwithstanding the absence of British diplomats in Tehran. Our concerns are therefore wider than foreign policy alone (as described by Baroness Boothroyd and Anne-Marie Lizin in their statements) and include, for example, United Kingdom security interests."
Mr O'Flaherty confirms the conclusion in his first witness statement. He refutes the suggestion that a robust attitude is not taken to Iran. He stresses that the situation now is very different from the situation that existed in 1996.
Mr O'Flaherty accepts that the government should not concede to threats but he makes it clear that risks have to be taken into account. He adds:
"We might accept greater risk to engage with a more viable and less tainted opposition group, but the balance is not compelling with [PMOI]."
Parliamentary appellants disagree with the Secretary of State over the value of engagement with PMOI
The Parliamentary appellants and the Secretary of State hold opposing views on the value of engaging with PMOI and NCRI. Lord Carlile, who has ten years experience as Independent Reviewer of Terrorism Legislation, describes NCRI as "a Parliament in exile for Iran". His evidence is that NCRI and PMOI, as well as their members and supporters are highly active across the world in exposing grave human rights abuses in Iran, the Iranian regime's support for terrorism and its pursuit of nuclear weapons (first witness statement, paragraph 8). He considers that the Iranian Government sees them "as the main threat to the continuation of the regime's theocratic and violent rule" (first witness statement, paragraph 10). His evidence is that the regime tries to demonise NCRI and PMOI and restrict their activities in the West.
In his third witness statement, Lord Carlile makes the point that the Secretary of State has not produced any evidence to show that retaliatory action has been taken in response to any act involving the PMOI. He states that any threat of unlawful retaliation relates to other measures taken by the United Kingdom in relation to Iran. He states that the view of the Parliamentary appellants is that upholding the rule of law is essential in a democratic society and that being robust in defending our democratic principles is the best way of protecting our society, our values and wider interests.
Lord Waddington, a former Home Secretary, in his witness statement strongly condemns the Iranian regime for recent attacks on United Kingdom and US property but in his view "neither incident could be said to have any connection with Mrs Rajavi". Lord Waddington states:
"The exclusion damages the reputation of the United Kingdom and its international standing, as the United Kingdom will be seen as being prepared to appease oppressive states by excluding an opposition leader about whose views the [Secretary of State] has no objections."
The late Lord Corbett, in his witness statement, explained that he is the Chairman of the British Parliamentary Committee for Iran Freedom, which has more than 20 years' experience in affairs concerning Iran and the Middle East. He stated that the Committee's principal objective is to shape policy on Iran in favour of a firm approach towards Iran's theocratic regime and support for the Iranian people and their resistance movement in order to achieve a secular democracy. He stated that this Committee has enjoyed the support of a majority of backbench MPs and some 200 Peers. He was directly involved in Mrs Rajavi's visit in 1996. He stated that the exclusion order came out of the blue. He stated that Mrs Rajavi is the only member of PMOI to be the subject of an exclusion order. He considered that the first exclusion decision was made because the US had, as a goodwill gesture to Iran listed the PMOI as a terrorist organisation, and that at that time the United Kingdom did not have legislation in place under which it could proscribe an organisation.
Similar evidence is given in other witness statements before the court. The late Lord Corbett disputed the evidence filed on behalf of the Secretary of State that the PMOI does not have much support in Iran. Lord Triesman, a former Parliamentary Under Secretary of State at the FCO and now a Shadow Foreign Office Minister, in his witness statement states:
"7. It is important to note that the fear and concern expressed by Foreign Office officials that the PMOI's deproscription would lead to strong reaction from Iran, which might endanger our interests or endanger the safety of our embassy staff in Iran, never in fact materialised. Of course, the Iranian regime complained about the Court rulings, but that was to be expected. In my view, the deproscription experience showed that if we stand firm on our values and the rule of law, the Iranian regime will understand that its complaints will not get it anywhere. …"
Judgment of the Divisional Court
The first challenge was based on a failure to consult. The Divisional Court rejected the Parliamentary appellants' submission below because the Secretary of State had made a fresh decision on the basis of full information from the appellants.
The Divisional Court rejected the Secretary of State's submission that there was no violation of their rights because the meeting could be held by video-link from outside the jurisdiction.
However, the Divisional Court rejected the appellants' contention that the Secretary of State's decisions violated the Parliamentary appellants' rights of freedom of speech. The court held that they had to give great weight to the decisions of the Secretary of State and that they should not substitute their own views for those of the Secretary of State. They relied on the decision of the European Court of Human Rights ("the Strasbourg court") that the state should establish convincingly that the measure is necessary in a democratic society. They considered that the courts should be slow to review policy decisions because of their polycentric nature.
The Divisional Court held that it was entirely credible that their decision would be seen as one of the government. The regime had flouted international law before so it was entirely credible that Iran would retaliate by taking action against embassy staff and United Kingdom citizens in Iran. The court could not say that the view of the Secretary of State was mistaken. The crucial paragraphs in the judgment of Stanley Burnton LJ were as follows:
"36. There are certain aspects of the Secretary of State's apprehensions that I would doubt. It is scarcely believable that the Iranian government's decision whether or not to develop and to make atomic weapons will be influenced by the admission of Mrs Rajavi to the United Kingdom. However, when I come to ask myself whether it is credible that the revocation of the exclusion, and the admission into this country, of such a prominent opponent, regarded by that government no doubt as a dangerous terrorist seeking its overthrow, and the location of the Houses of Parliament for her meeting with members of the legislature, will be regarded by it as a hostile act of the United Kingdom Government, I am driven to say that it is entirely credible, indeed likely. …
38. The decisions to exclude Mrs Rajavi have been made repeatedly by the Secretary of State personally, most recently (if not previously) on the recommendation of the Secretary of State for Foreign and Commonwealth Affairs and the Parliamentary Under-Secretary of State at the FCO, Alistair Burt. 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. It is this risk, of retaliation against local employees in Iran, that most influences my decision. If only one of the local employees were to be taken into custody and ill treated as a result of the admission of Mrs Rajavi, I would accept that her admission was a mistake." (emphasis added)
The Divisional Court therefore concluded that the Secretary of State had established that the exclusion of Mrs Rajavi was a proportionate and justified measure for the purposes of article 10(2).
The Divisional Court also held that no relevant article 8 right of Mrs Rajavi is engaged.
ANALYSIS OF THE PARTIES' SUBMISSIONS AND MY DETAILED REASONS FOR DISMISSING THIS APPEAL
The challenge on this appeal to the exclusion decisions is principally based on interference with the appellants' rights under article 10 of the Convention. Article 10 provides:-
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The issue on this appeal under article 10 is one of proportionality, that is to say, whether or not the interference is "necessary in a democratic society". It is well established that article 10 includes freedom to receive information. Accordingly the exclusion decisions engage not simply Mrs Rajavi's article 10 right but also that of the Parliamentary appellants. I shall take the interference with the Parliamentary appellants' rights first. The Secretary of State's decisions to exclude Mrs Rajavi fall within the expressions "national security", "public safety" and "the protection of the … rights of others" in article 10.
The proportionality test means that the court must weigh in the balance the arguments for and against interference. On one side of the scales, the court must place a value on the particular exercise of the article 10 rights. On the other side of the scales, this court must weigh the interests of the community, represented by the Secretary of State, whose protection is said to justify the limitation on the right. These rights are interests that are conflicting. The court must ensure that a fair balance is struck, and that the scales are not unfairly tilted in favour of the community's interests at the expense of individual rights guaranteed by the Convention.
Miss Clare Montgomery QC, for the appellants, submits that under the proportionality test the court has to be satisfied that the interference with the appellants' article 10 rights is strictly necessary. She relies on the following well-known passage from the unanimous decision of the House of Lords in Huang v Home Secretary  2 AC 167, where the issue of proportionality arose in the context of article 8 of the Convention:
 In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80,  3 WLR 675, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
This formulation has been widely cited and applied. But counsel for the Applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes  1 SCR 103, 26 DLR (4th) 200 (SC Can), from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department  UKHL 27,  2 AC 368, paras 17-20, 26, 27, 60, 77,  3 All ER 821, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:
'must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage (see para 20).' "
The complaint which the Parliamentary appellants make about the Divisional Court's rejection of their case on article 10 is that the interference with their rights was not justified as being "no more than is necessary" since (1) the Divisional Court abdicated their role by accepting in paragraph 38 of their judgment (set out in paragraph 43 above) that they were not in a position to disagree with the risk to local staff; (2) that it was contrary to the rule of law to capitulate to potential threats of unlawful reprisals and to allow those risks to be used to justify interference with human rights; and (3) it was perverse to allow the possible risks to local staff to take precedence.
The starting point is to assess the value of the Parliamentary appellants' rights under article 10 and then the interests which the Secretary of State puts into the other side of the scales.
The first side of the scales: the value of the exercise of the article 10 rights in this case
The right to freedom of expression is one of the most precious rights in any democracy, as the following passage from the speech of Lord Steyn in R v Home Secretary ex parte Simms  2 AC 115 at 126 explains:
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market:" Abrams v. United States (1919) 250 U.S. 616, 630, per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed. (1996), pp. 1078-1086."
Moreover, the court has to consider the value of the right not in the abstract but in the context in which the appellants seek to exercise it. While it must be borne in mind that the right to freedom of expression extends not only to ideas that are favourably received, or are inoffensive, but also to ideas that shock or disturb, when it comes to balancing rights or interests, the fact that the communication relates to a matter of public interest is a factor to be put in the side of the scales in favour of allowing the exercise of the right (see Axel Springer v Germany (App No 39954/08).) When conflicting rights are balanced, contribution to debate on matters of public interest is "an essential initial criterion": Axel Springer at ). Here the communication relates to a matter of public interest. Indeed I accept Miss Montgomery's submission that the exercise of the right in this case had an exceptionally high value. The link with the public interest is far from tenuous. The appellants seek to exercise their article 10 rights in Parliament. As is common knowledge and can be seen to some degree from Parliament's website, there are frequently meetings in Parliament and the subject matter obviously does not have to be approved by the government or be compatible with national policy. The value of free debate in a democratic society cannot be under-estimated. It increases knowledge and understanding on national and international affairs.
Furthermore the interference in this case is not trivial: it is in effect a denial of the right. The Divisional Court decided that it could not realistically be exercised by the numbers of members of Parliament involved going to France to meet Mrs Rajavi or by a meeting held by video-link. The Secretary of State's suggestion that the meeting could be held by video-link is no longer pursued.
The other side of the scales: the interests relied on as justifying a limitation on the article 10 right
The Secretary of State relies essentially on foreign policy and security. I propose to consider whether the matters relied on justified the substantial interference with the article 10 rights of the appellants by means of a substantive proportionality review (dealing with the substance of the exclusion decisions) and, separately, a procedural proportionality review (dealing with procedural regularity).
Substantive proportionality review
Miss Montgomery accepts in principle that, where special expertise is required, the court must grant a wide margin to the Secretary of State's decision in matters of national security and foreign policy: see, for example, A v Home Secretary  2 AC at  per Lord Bingham. However, in the present case, the Parliamentary appellants have considerable expertise in Iranian affairs and in any event the court should scrutinise the reasoning carefully because the reasons given by the Secretary of State contained weaknesses. For example:
i) The reasons relied on by the Secretary of State are now much reduced as a result of the attack on the British Embassy in November 2011 and the withdrawal of diplomatic representation;
In summary, Miss Montgomery submits that the Secretary of State's view is over-cautious. In any event, on her submission, the court has to give less weight to a regime whose reaction is irrational.
ii) The nuclear counter-proliferation talks between the United Kingdom and Iran have ended;
iii) Diplomatic relations between the United Kingdom and Iran are virtually non-existent;
iv) Local staff have not been seriously harassed to date, even when the stringent financial sanctions were imposed on Iran;
v) The disturbances in Iran following the de-proscription of PMOI were not substantial: the demonstrators were the mothers and children of PMOI members, and were therefore not hostile to PMOI;
vi) The Iranian government apparently did not retaliate when the USA and Canada de-proscribed PMOI;
vii) The FCO have not apparently considered whether the risk of reprisals could be minimised. When POAC decided that PMOI should be de-proscribed, the FCO issued a statement. Ms Montgomery submits that it cannot be beyond the wit of diplomatic officials to explain the position to their Iranian counterparts if Mrs Rajavi is given leave to enter the United Kingdom.
viii) In the appellants' view, PMOI has a good measure of support in Iran. The Secretary of State disagrees largely on the basis of PMOI's past terrorist activities.
Mr James Eadie QC, for the Secretary of State, submits that the test in Huang does not have the effect of requiring the strict necessity of interference to be objectively shown. He submits that Huang does not affect the principle that in matters of foreign policy and security the court should not substitute its judgment for that of the Secretary of State and must allow the Secretary of State a wide margin of judgment. That principle as been developed in many cases, for example R (Abassi) v SSFA and Home Secretary  EWCA Civ 1598 and Rehman v Home Secretary  1 AC 153. That particular proposition is in my judgment well established outside the field of proportionality.
Furthermore, in this court, Gross LJ, with whom Jackson LJ agreed, held in R (o/a Naik) v Home Secretary  EWCA Civ 1546 that the principle applied in the context of immigration control where an exclusion decision was challenged on the basis of article 10, ie in the context of proportionality. That decision is binding on us and the same reasoning must in my judgment apply to questions of foreign policy and security.
The passage is a lengthy one but contains further points relevant to this appeal. Gross LJ held:
"THE JUSTIFICATION FOR EXCLUDING DR NAIK
 (1) Principle and authority: As it seems to me, the legal framework for determining this issue is furnished by the principles or propositions which follow.
 First, the State has the right to control the entry of non-nationals into its territory. This is hornbook law and requires no elaboration.
 Secondly, where immigration control overlaps with or results in the engagement of art 10 rights of freedom of expression (as it does or as must be assumed here), such control must be exercised consistently with the State's Convention obligations:
i) To the extent that authority is needed, this proposition enjoys the support of Farrakhan (supra), at 35 and 52 – 56; whatever the doubts as to the status of Farrakhan as a precedent on the question of whether art 10 is engaged in the case of an alien outside the country, I do not think that such doubts weaken the authority of Farrakhan where art 10 is (or is assumed to be) engaged.
ii) Mr Husain QC, for Dr Naik, contended vigorously that this was not an immigration case at all. I respectfully disagree. …
 Thirdly, art 10 rights of freedom of expression are of the first importance. These rights are not, however, absolute or unqualified, as art 10.2 makes clear. The importance of rights of freedom of expression in a democracy requires no reiteration here. Likewise, the wording of art 10.2 speaks for itself.
 Fourthly, resolution of any tension between the important interests of immigration control and freedom of expression is achieved by way of art 10.2. The application of the provisions of art 10.2 will determine whether or not the interference with freedom of expression is justified. The exceptions contained in art 10.2 must be construed strictly and the need for any restrictions must be convincingly established. This approach to the construction of art 10 is justified both by the structure of the Article and its context; it is moreover well-established in English authority…
 Fifthly, decisions of the SSHD to refuse entry to this country to an alien on national security or public order grounds are entitled to great weight and must, by their nature, enjoy a wide margin of appreciation (or discretion). Let it be accepted that such decisions, when resulting in the engagement of art 10, warrant the most careful scrutiny on the part of the court; crucially, even so, the decision-maker is the SSHD not the court. As Carnwath LJ expressed it (at 62 above), the court is not substituting its own view for that of the SSHD. The court's task remains one of review. By way of elaboration…
This conclusion is consistent with the way in which the Strasbourg court approaches the expression "necessary in a democratic society" in articles 8 to 11 of the Convention. As I pointed out in Proportionality: the Way Ahead? (2013) Public Law (forthcoming):
iv) Nothing in the above observations precludes the court from reviewing the decision of the SSHD by reference to what Carnwath LJ has termed (62 above) "public law and human rights principles". Where Convention rights are involved, that review will be an "intensive review": A v Secretary of State for the Home Department, supra, headnote at p 69. Such a review would (as appropriate, see Carnwath LJ at 48 above) extend to the rationality, legality, procedural regularity and proportionality of a Ministerial decision…."
"In order to reach a view as to whether something is necessary in a democratic society for one of the specified reasons, and therefore proportionate, the interests of the individual have to be balanced with the rights of others or of the rest of the community. The word "necessary" can be read as implying that the rights of the individual can only be interfered with when this is strictly necessary and no more than is absolutely necessary. However, this is not how that expression works in practice. In some situations, the Strasbourg court will take the view that the national authorities are better placed to assess whether the interference is necessary when the interests of the individual are balanced with those of the community. The decision is then said to be within the "margin of appreciation" of the contracting state…. Neither the majority nor the minority [in Otto-Preminger-Institut v Austria App.No.13470/87] makes any reference at all to "no more than necessary" or "least intrusive means" or strict necessity as a criterion of proportionality. In Strasbourg jurisprudence, least intrusive means is a factor to be weighed in the balance, but it is not insisted on in every case."
I recognise that it would be open to the courts of England and Wales, in exercise of their implementation of the freedom under the Convention and pursuant to section 2 of the Human Rights Act 1998 to adopt some higher threshold for proportionality than the Strasbourg court but the judgment of Gross LJ shows that it has not done so in the area with which this appeal is concerned.
There is in effect a division of functions here between the court and the executive. The executive takes responsibility for issues of national security and the handling of international relations and is democratically accountable for the merits of the decisions to Parliament. The court reserves to itself the responsibility for seeing that the decision complies with the law, is not irrational and complies strictly with procedural requirements (see per Gross LJ at  and per Carnwath LJ as he then was at  in Naik).
The reservation is in fact illustrated by the judgment of the Divisional Court in this case because, although the Divisional Court considered that they could not gainsay the conclusion of the Secretary of State with regard to the risk of the local staff, Stanley Burnton LJ rejected the argument that the Iranian regime would decide to pursue atomic tests because Mrs Rajavi was permitted to enter the United Kingdom. To suggest otherwise struck him as "scarcely believable" (paragraph 36). He likewise rejected the Secretary of State's suggestion that it would be possible to hold a satisfactory meeting in the Palace of Westminster with Mrs Rajavi by video-link (paragraph 27).
The court's reservation also meets the Parliamentary appellants' complaint that there was an abdication by the Divisional Court of its judicial role in paragraph 38 of the judgment of Stanley Burnton LJ (above, paragraph 46). In my judgment, the approach of the Divisional Court was in accordance with legal principle.
Miss Montgomery also submits that the fears have effectively been narrowed to the welfare of the local staff and the physical integrity of the British Embassy in Tehran. She further states that individual threats such as the threat to local staff are only relevant if they reach a sufficiently high threshold to penetrate articles 2 or 3 of the Convention. That was not in point in the present case. There has been no serious ill treatment in the past and therefore these threats do not constitute a threat in foreign policy terms. Likewise, she submits, no one was actually injured as a result of the throwing of acid bombs into the British School in Tehran.
Miss Montgomery's detailed and able submissions on this point do not lead me to the conclusion that any further part of the decisions meets the high test of irrationality. In my judgment, the Secretary of State is at the least entitled to have regard to the welfare of the local staff and to the protection of British property in Tehran. That the Iranian regime might harass local staff or is capable of harassment which might result in injury is evident from the attack on the British Embassy in November 2011 and the acid attacks. In any event, the interests of the local staff and property in Tehran are not the only concern. The Secretary of State is also mindful of wider British interests in the region that may be destabilised by events in Tehran (see the penultimate and final reasons given by the Secretary of State in her decision of 24 January 2012 at paragraph 31 above). The Secretary of State's reasons have been amplified in the evidence of Mr O'Flaherty. The appellants have not sought to challenge his evidence, as they could have done by applying for an order for cross-examination even if that course would have been unusual.
Mr Eadie points out that the fact that Mrs Rajavi visited France and Germany is not determinative because of the historically much more sensitive relationship between the United Kingdom and Iran. I agree. As the Divisional Court indicated, there is a tangible risk that the Iranian regime would not understand that the courts were independent of the government and that it would therefore simply regard an order setting aside the exclusion decisions as a case of double standards and support for terrorism. The fact that Mrs Rajavi visited the United Kingdom in the past is irrelevant because the assessment has to be made now.
In circumstances such as these, once the court is satisfied that the decision was within a range of decisions that could properly be made, proportionality does not require it to go on and be satisfied that the decision is correct.
For me to conclude that these concerns are irrational would in my judgment clearly involve substituting my own judgment for that of the Secretary of State on the risk of retaliation by a regime that has in the past been prepared to sanction unlawful reprisals. The Secretary of State's decision requires expertise in evaluating the current and historical evidence and in predicting the reaction of the Iranian regime. It also requires up to date intelligence as to the likely response. The appellants between them have enormous knowledge and experience of Iranian affairs. The Secretary of State accepts that. However, there is nothing to suggest that their knowledge and experience on these matters is superior to that of the Secretary of State.
The division of functions between the court and the Secretary of State runs a risk that the executive might be motivated by some misplaced wish to preserve the goodwill of a totalitarian regime. The appellants say that the 1996 exclusion decision in this case was made simply as a goodwill gesture to the regime. The Secretary of State rejects this analysis. But the answer to this is that the Secretary of State remains accountable to Parliament. The statutory test for exclusion decisions is a wide and general one as it stands, and if Parliament wishes to narrow it, it has of course the power to do so. The examination of the decision by the court serves a different purpose, namely that of ensuring a high standard of decision-making and that careful thought is given to whether it is a decision that meets the requirement for rationality and procedural regularity. I am satisfied that this different purpose is a beneficial one.
Procedural proportionality review
The court has to consider the question of proportionality from the process point of view. There is no reason why the court should not have an intense review of the process. It can therefore scrutinise the way in which the decision was made. For instance, in this case, the appellants complain that there was no consultation with Lord Carlisle at the time of the decision in February 2011. This forms their fifth ground of appeal. However, the Divisional Court took the view that, as the Secretary of State took into account all the appellants' points when the last exclusion decision was taken, there could be no unfairness or relevant failure to consult. I agree. That means that the decision of 24 January 2012 is not undermined by the earlier failure to consult. On the other hand, I do bear in mind as reflecting less well on the decision-making process the fact that the Secretary of State originally contended that this meeting could be held by video link. The Divisional Court roundly rejected that view. It has not been repeated in this court. The reality is that the value of a meeting such as the appellants desire cannot be conducted by video link.
Mr Eadie places emphasis on the fact that the Secretary of State made the decision personally. This is obviously a matter of importance. The Secretary of State's decision also gains greater impact from the fact that it was taken in consultation with the Foreign Secretary and Parliamentary Under-Secretary of State at the FCO. Nonetheless those factors do not mean that in an appropriate case an exclusion decision could not be set aside.
The most serious issue here is the appellants' criticism that the decision fails to give sufficient weight to the intrinsic value of the rule of law and amounts to a capitulation to pressure from a regime which acts in contravention of the law. The appellants take the view that in a democratic society it is necessary to stand up to that type of pressure, as this court did on the de-proscription issue. Lord Corbett, for instance, in his witness statement states that the approach of the FCO in this case will serve to encourage other totalitarian regimes to demand similar measures of appeasement by making threats to the Foreign Office and to its staff. At the same time it will have a chilling effect on the willingness of exiled opposition leaders to speak out against repressive regimes for fear of exclusion from the United Kingdom. Lord Triesman makes a similar point.
The appellants criticise the approach of Mr O'Flaherty in his witness statement that the government might engage more with a viable and less tainted opposition group. This amounts to suggesting that if the PMOI were more credible greater risks might be taken. This on their case demonstrates that the reasoning is unprincipled: the decision fails to give sufficient weight to the rule of law. A democratic society on Miss Montgomery's submissions is weakened if it kowtows to a totalitarian regime.
This argument comes close to suggesting that the court should substitute its own view on these issues for those of the Secretary of State. These matters do not mean that the decision of the Secretary of State was unlawful provided that the Secretary of State was satisfied as to the existence of a sufficiently grave threat: see generally, R (Corner House Research) v Serious Fraud Office  1 AC 756. I would, however, accept that this submission is one which a court should bear in mind when it requires to be satisfied that the decision meets all the requirements of procedural regularity. The higher this sort of risk, the more demanding the process review should be.
Miss Montgomery submits that the Secretary of State has not considered whether the risks could be mitigated by some approach to the Iranian government by the executive. However she only raised this matter at the hearing of this appeal. Thus I would not expect the evidence of Mr O'Flaherty to address it. It is in any event one thing to seek to adopt this measure where the cause of the risk could not be controlled and quite another to plan to use this measure in advance. In the former situation, it is Hobson's choice but in the latter there is a choice. The whole tenor of his evidence suggests to me that the reaction of the Iranian regime is unpredictable in rational terms. In those circumstances, it would not be reasonable to expect the Secretary of State to adopt Miss Montgomery's suggestion.
I therefore find that the Secretary of State's decisions meet the requirements of procedural proportionality.
Mrs Rajavi's article 10 rights: This court (of which I was a member) held in R (Farrakhan) v Home Secretary  QB 1391 at  that the Convention right of freedom of speech was engaged by the refusal of entry for the purpose of preventing the exercise of that right (as opposed to the case where the refusal of entry had the incidental effect of denying the right). Miss Montgomery further submits, on the basis of recent decisions of the Strasbourg court, that Mrs Rajavi is now a person within the jurisdiction of the United Kingdom for the purposes of the Convention, and so entitled to exercise her right unless interference was justified. Miss Montgomery went on to argue that, since Mrs Rajavi has the right to free speech in France and elsewhere in Europe, it would take special features to justify a result that she has no such right in the United Kingdom.
This is undoubtedly an important issue since it raises complex questions as to the existence and content of the Convention rights engaged by a refusal of entry (see generally R (o/a Ullah) v Special Adjudicator  2 AC 323, Chikwamba v Home Secretary  1 WLR 1420 and Moon v ECO Seoul  UKAIT 00112). However, in the light of Farrakhan and other authorities in this court and in the House of Lords, the only court that can now fully consider the question of jurisdiction in the context of Mrs Rajavi is the Supreme Court.
Moreover, alongside the cases cited to us are other Strasbourg authorities where non-nationals outside the territorial jurisdiction of the respondent state have failed to establish that they could enforce Convention rights within that jurisdiction, which she did not cite, such as Ben El-Mahi v Denmark (App No 5853/06) (complaints of violations of articles 9 and 10 within the territorial jurisdiction of the respondent state by a person resident in Morocco inadmissible) and Saddam Hussein v Albania and others (App No.23276/04) (complaint over arrest outside the jurisdiction inadmissible where not shown that respondent states had any role).
We therefore indicated in the course of the hearing that we need not consider the question of jurisdiction: we could proceed, as Mr Eadie invited us to do, on the basis that she had a right and that the same issue of justification arose.
No challenge by Mrs Rajavi to her exclusion: Mrs Rajavi could have appealed against any decision to refuse her entry clearance or leave to enter made on the basis of the exclusion decision, because:
i) As Mr Eadie QC made clear at the hearing, an exclusion decision itself is not an "immigration decision" within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002; but any refusal of entry made by reason of the decision to exclude her would be, and would give rise to a right of appeal; and
If Mrs Rajavi had appealed, as described above, on human rights grounds and her case had been certified as involving national security or the relations between the United Kingdom and another country, her case would have been heard by the Special Immigration Appeals Commission ("SIAC"). In a hearing before SIAC, the Secretary of State could have led security-sensitive material under the closed material procedure. That would have enabled the court to exercise a much higher degree of scrutiny. The appellants have chosen the present route and cannot hope to achieve under this procedure the advantages that would have been available under the appeal procedure.
ii) The exclusion decision is not an exclusion "order".
Affront to Parliament: Lord Carlile has called the exclusion decisions an "affront to Parliament". However, the appellants do not suggest that there has been any interference with Parliamentary privilege. This is because this case is one of the situations in which the ordinary law of the land touches on proceedings in or in relation to Parliament: see generally, cases such as R v Chaytor  1 AC 684, Mereworth v Ministry of Justice  EWCA 1796, and Jepson and Dyas-Elliott v The Labour Party  IRLR 116.
Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and article 11 (freedom of assembly and association): the appellants contend as a further ground of appeal that the Secretary of State failed to give weight to Mrs Rajavi's rights under articles 8, 9 and 11 of the Convention.
In my judgment, insofar as these articles confer any rights on Mrs Rajavi, articles 9 and 11 do not require separate discussion. This court can follow the practice of the Strasbourg court. In the case of overlapping rights, the Strasbourg court restricts its examination of the complaints to the article which is mainly in issue, here article 10. Articles 9 and 11, like article 10, are also qualified rights and so they will be subject to the same limitations as article 10 in this case.
The complaint under article 8 does not overlap with her complaints under articles 9, 10 and 11 in the same way. Mrs Rajavi contends that the exclusion order violated her article 8 right to protect of her reputation. I need not spend time considering the basis in the Convention for this complaint, because, even if it is well founded, it would be subject to the same arguments on justification. Accordingly the claim under article 8 does not assist Mrs Rajavi.
Charter of Fundamental Rights and Freedoms: Miss Montgomery's skeleton argument refers to the equivalent rights in the Charter but does not argue that these rights could lead to a different conclusion.
Article 10 is clearly engaged by the exclusion decisions in the case of the Parliamentary appellants at least. I have proceeded on the basis that the article 10 right of Mrs Rajavi is engaged. However, for the reasons given above, I do not consider that the appellants have established that the Secretary of State's exclusion decisions violate their article 10 rights. The court does not second-guess the merits of the substantive decision-maker in the field of foreign policy and security but looks to see whether the decision-maker had approached the matter rationally, lawfully and in a procedurally correct manner.
The court's focus is on the process rather than substantive matters. However, it should not be thought that a process-orientated judicial review is the equivalent of a judicial surrender. Scrutiny of the process undoubtedly leads to a raising of the standard of decision-making, even in areas such as security and foreign policy.
I would dismiss this appeal.
Lord Justice Patten:
I agree that the appeal should be dismissed for the reasons given by Arden and McCombe LJJ and by the Divisional Court. The difference of view in this Court about the treatment and characterisation of the Parliamentary appellants' article 10 rights is not critical to the outcome of this appeal and I do not propose to debate it further in this judgment.
Lord Justice McCombe:
I agree that this appeal should be dismissed, for the reasons given both by my Lady, Arden LJ, and by Stanley Burnton LJ in his judgment in the court below.
I am entirely persuaded that the interference with the Parliamentary appellants' rights under Article 10 of the Convention has been amply justified in terms of paragraph 2 of that Article and that it is proportionate in all the circumstances of the case. For me, the critical point has been the consideration that the personal decisions of the Secretary of State in this case, taken with the benefit of the advice of the Secretary of State for Foreign and Commonwealth Affairs, related to matters distinctly outside the expertise and competence of the courts. In so saying, I do not neglect the ability of the court to intervene, in appropriate cases, even in this field of executive activity, but there are limits. However, in my view, the challenge in this case goes beyond those limits.
My Lady has already quoted extensively from the judgment of Gross LJ in the Naik case and, in addition to the passages expressly cited by her, I am persuaded that the points made in sub-paragraphs (i), (ii) and (iii) of paragraph 88 of that judgment are also of much importance in this case. At the end of those three sub-paragraphs Gross LJ said,
"Put simply and whether as a matter of "deference" or "demarcation", in areas such as national security or public order, the SSHD is likely to have advice and a perspective not or not readily available to the Court."
It seems to me that decisions made in this case were taken in relation to matters of essentially similar character.
In my judgment, the arguments of the Parliamentary appellants, summarised in paragraph 59 of my Lady's judgment, seek merely to "second guess" the judgment of the executive officer of the state who is entrusted by our constitutional arrangements with matters of this kind. The matters set out in that paragraph of Arden LJ's judgment are merely matters of disagreement with "judgment calls" made by Ministers on which, as Gross LJ put it, "the SSHD is likely to have advice and a perspective not or not readily available to the Court".
With respect to the opinions and expertise of the appellants in matters of Iranian affairs, they are not presently in office; the Secretary of State is, and it is for the Secretary of State, with the information, advice and perspective available to her, to make the judgments necessary. The matters in issue are ones on which (adopting as Gross LJ did, an observation of Lord Bingham in A v Secretary of State for Home Affairs  2 AC 68, at ) "reasonable and informed minds may differ". But, they are no more than issues of politics, not of law or legality. It is an impossible task for a judge to adjudicate upon a debate of this sort in fields of security and foreign affairs.
On a short separate point, alluded to briefly in paragraph 70 of Arden LJ's judgment, I would add that this is the type of case in which, in my experience, the Administrative Court would be most unlikely to entertain an application for an order for cross-examination of deponents whose effect would be the conduct a "mini-trial" of issues of judgment and policy such as these. In practice, the court has to assess the arguments, and hence the legality of the decisions taken, on the basis of the documentary evidence alone. I only mention this because of a suggestion made by Mr Eadie QC for the Secretary of State that the factual assertions of his client's witness could not be questioned in view of the fact that the appellants had not sought such an order for cross-examination below. The court's powers of scrutiny are not, however, trammelled by such limitations in an appropriate case.
In broad conclusion, on the main issue before us, therefore, I find myself in entire agreement with the observation of Stanley Burnton LJ in paragraph 35 of his judgment as follows:
"In the present case, we are concerned with fears or apprehensions, based on assessments or judgments made with the wide experience and expertise and information available, in particular to the Foreign and Commonwealth Office, which the Court is not in a position to gainsay."
I would add that the Court is still not in a position to gainsay those matters on the basis merely of rival and contrary assessments and judgments made by the Parliamentary appellants in the light of their own experience.
Before concluding I would, however, raise a tentative disagreement that I have with the emphasis placed by my Lady, Arden LJ, in saying that,
"The value of the Parliamentary appellants' Article 10 rights is particularly high" (paragraph 7 (ii))
I would not go so far as that. Nor would I accept to its full extent Miss Montgomery QC's submission for the appellants, as recited in paragraph 56 of Arden LJ's judgment. I accept, of course, the "value of free debate in a democratic society" and I note the observation of Stanley Burnton LJ in paragraph 28 of his judgment that,
"Where the right of free expression engaged is that of Parliamentarians, both at common law and under the Convention the justification for any restriction must be particularly strong."
This argument as to the "value" of the parliamentarians' rights under Article 10 while asserted was not substantially developed at the hearing of the appeal in the light of decided cases. The jurisprudence in Strasbourg, concerning the expression of political views, have mostly concerned cases of alleged defamation or prosecution for political statements, rather than cases of the type now before this court: see the summary in Clayton & Tomlinson on the Law of Human Rights 2nd Edn. Vol. 1 Chapter 15, especially at 15.321 et seq.
I accept, of course, that the Strasbourg court has emphasised time and time again that matters of justification of qualified rights afforded under the Convention are particularly "fact sensitive" and it is clearly a matter of importance, on the facts here, that the rights of expression engaged are those of MPs and peers. Moreover, it seems that it was intended that Mrs Rajavi was to engage in discussion and debate at the Palace of Westminster itself. However, I am not sure that, in principle, the rights to freedom of expression of Parliamentarians are of more "value" than the rights of other persons. All persons have the same vitally protected rights under the Convention and, for my part, I would not wish to afford higher "value" to the rights of one class of person in this area than to any other.
It is right, of course, that free debate in Parliament (and perhaps in its precincts) is to be scrupulously guarded. In this respect, the scrutiny to be afforded to any restriction of such debate will be particularly intense. Questions of parliamentary privilege may also be engaged. That is not, however, to afford a higher value, from the outset, to the rights of politicians (under Article 10) over and above other citizens. The test of the matter is perhaps to look at slightly varying circumstances that might have pertained in this case: e.g. a meeting involving Mrs. Rajavi outside parliamentary precincts with parliamentarians and others, a joint meeting with distinguished academics or religious leaders at a University or a church building or mosque, or a public meeting open to all. Surely, the "value" of freedom of expression, for Convention purposes, would remain the same. However, the extent of any justifiable restriction of such freedom might very well be different, depending upon the circumstances.
In short, I think that argument as to the "value" of the rights of particular classes of persons or groups of persons is not a matter that I would put at the forefront of my own decision in this case. The important right of freedom of expression has been interfered with, but, as I have said, I consider that restriction to have been clearly justified under paragraph 2 of Article 10 and I too would dismiss the appeal.
Copyright Policy |
Donate to BAILII