R v Secretary of State for the Home Department

When exclusion from the United Kingdom interferes with freedom of expression, the potential consequences of admission are legally relevant. This includes a hostile reaction by a foreign state, even if that reaction would be unlawful, unreasonable or contrary to democratic values.

The court must determine proportionality objectively by applying the four-stage proportionality test. It may, however, give great and potentially decisive weight to a rational executive assessment of predictive foreign-policy and national-security risks. The weight depends on institutional competence, available evidence and democratic responsibility. The degree of interference also matters. Alternative means of communication may reduce its severity, although loss of the preferred method or venue remains a real interference.

R v Secretary of State for the Home Department concerned the continuing exclusion from the United Kingdom of Maryam Rajavi, an Iranian dissident politician. A cross-party group of parliamentarians wished her to address them in the Palace of Westminster. The Home Secretary maintained the exclusion because the Foreign Office assessed that admission would provoke a damaging Iranian response, endanger British interests and personnel, and impair important diplomatic objectives.

The appellants alleged an unjustified interference with their freedom of expression under article 10 of the European Convention on Human Rights. The Divisional Court dismissed the claim in R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2012] EWHC 617 (Admin). The Court of Appeal dismissed the appeal in [2013] EWCA Civ 199.

The Supreme Court considered whether a hostile foreign reaction was legally relevant and how a court should assess proportionality where the executive possessed particular expertise in foreign policy and national security.

1. Disposition. The appeal was dismissed by a majority of four to one. Lord Sumption, Lord Neuberger, Lady Hale and Lord Clarke concluded that the exclusion was compatible with article 10 of the European Convention on Human Rights. Lord Kerr dissented.

2. The court unanimously rejected the threshold contention that an anticipated reaction by a foreign state was legally irrelevant because it would be unreasonable, unlawful or contrary to Convention values. The question whether admission was conducive to the public good depended on its likely effects. Threats to British personnel, property, diplomatic relations and national security could therefore be considered, whatever the motives of those creating the threat.

3. Where a Convention right is engaged, the court must decide for itself whether the interference is proportionate. Review is not confined to rationality, legality and procedural propriety. The court must examine whether the objective is sufficiently important, whether the measure is rationally connected to it, whether a less intrusive measure was available, and whether a fair balance was struck. In that respect, the Court of Appeal had stated the judicial role too narrowly.

4. The court's duty to determine proportionality does not transfer the executive's substantive decision-making function to the judiciary. The weight accorded to the primary decision-maker depends on context. Predictive assessments concerning foreign policy and national security may receive great or decisive weight because ministers possess specialist advice and information, exercise judgment in an area where several answers may reasonably be available, and bear political responsibility for error. The principles discussed in Secretary of State for the Home Department v Rehman [2003] 1 AC 153 remained highly relevant.

5. The Foreign Office's assessment was genuine, reasoned and founded on undisputed primary facts. It had not been shown to be irrational or factually defective, and no evidential basis enabled the court to replace it with a more optimistic prediction. The anticipated risks were capable of serving the legitimate aims of national security, public safety and protection of others.

6. The interference was real but limited. The parliamentarians and Mrs Rajavi could communicate by video link or meet outside the United Kingdom. Exclusion removed the preferred method and symbolic venue but did not suppress the views themselves. No less intrusive measure would avert the risk arising from her presence. The majority therefore held that the risks justified the restriction.

7. Lord Kerr would have allowed the appeal. He considered that the uncertain and general nature of the predicted consequences, together with the anti-democratic character of the anticipated reaction, could not outweigh the particular importance of face-to-face political speech by parliamentarians.

1. United Kingdom Supreme Court: In R v Secretary of State for the Home Department [2014] UKSC 60, the court dismissed the appeal by a majority of four to one. It upheld the result below but held that Convention proportionality required the court to determine the fair balance for itself.
2. Court of Appeal: In R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2013] EWCA Civ 199, the court dismissed the appeal. It treated rationality, legality and procedural propriety as the relevant limits of review in the foreign-policy and national-security context.
3. High Court, Divisional Court: In R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2012] EWHC 617 (Admin), the court dismissed the judicial review claim. It accepted that article 10 was interfered with but upheld the executive assessment of the risks.