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20050607-sam-knights 112This judgment raises interesting issues about how the court is to assess the proportionality of interferences with fundamental ECHR rights in the context of decisions raising foreign policy and national security issues. Most importantly it signals the importance of cross-examination of government officials if their decision-making is to be challenged.

Background

Ms Rajavi, a dissident Iranian politician resident in Paris, had sought entry to the UK to speak at the Palace of Westminster on democracy, human rights and other policy issues at the invitation of the Parliamentary appellants. The Secretary of State excluded her because she thought that her presence in the UK would have a damaging effect on Britain’s relations with Iran and may lead to retaliatory action by Iran against British interests abroad. Specifically she justified the decision on the grounds that her presence in the UK would “not be conducive to the public good for reasons of foreign policy and in the light of the need to take a firm stance against terrorism”. She also argued that admission would be seen as a “deliberate political move against Iran” which risked destablising relations between the UK and Iran which in turn would be detrimental to the conduct of foreign policy and the advancement of UK national-security interests.

The factual background was that between 1985 and 1993 Maryam Rajavi was the co-chair and then Secretary General of an organization (MEK) which until 2001 supported terrorist violence in Iran. Since 1993 she was also President-elect of an organization opposed to the current government of the country. She had previously visited the UK on four occasions in 1985, 1990, 1991 and 1996 but was excluded in 1997. That exclusion had remained in force since then. She currently lived in France, was not excluded from any other country other than the UK, and regularly engaged with parliamentarians in the European Parliament and a number of European national legislatures. Her own democratic credentials were not in dispute and it was common ground that MEK was now a wholly non-violent organization.

Against this background the case proceeded at all stages entirely in open – there was no closed element to the hearings such that the evidence relied upon as to diplomacy and national security was before the courts and public. The well-established history of the complex diplomatic relationship between Iran and the UK was set out, and the particularly sensitive negative perception by Iran of the UK government’s actions and statements. Significantly, however, a key aspect of the Secretary of State’s case was the reliance on possible reprisals that might put British nationals at risk and possible targeting of the British embassy and staff members. The case for exclusion was said to be based not purely on foreign policy grounds “but also on grounds of UK security, especially the safety of HMG staff in Iran…, the protection of UK assets that remains in Iran, and the security of UK personnel in the region.”

Supreme Court Judgment

A 4:1 split between the Justices (Lord Kerr dissenting) dismissed the appeal and upheld the decisions of the Divisional Court and Court of Appeal in refusing the appeal by a cross party group of MPs and peers together with Maryam Rajavi against the decision of the Secretary of State to maintain Ms Rajavi’s exclusion from the UK. Before examining the way in which the majority decided the case it is worth making a few preliminary observations about the evidence as the case proceeded through the courts. First, there was evidence adduced before the Divisional Court [2012] EWHC 617 (Admin) on behalf of the Claimants criticizing the reasons and evidence adduced by the Secretary of State. The Claimants had a number of high profile witnesses (including Lord Carlile, a former Home Secretary and former PUC) who contended that the concerns of the Secretary of State were at best exaggerated and not justified either by history or by the experience of other European states. There was, however, no cross-examination of the Secretary of State’s key witness. Secondly, the Divisional Court expressly found at [35] that unlike a case concerning whether an individual was a spy (see Zatuliveter v SSHD [2011] UKSIAC 103/2010) this was a case concerned with fears or apprehensions based on assessments and judgments made with the wide experience and expertise and information available, in particular to the FCO, which the court was not in a position to gainsay. Whilst the Divisional Court did not accept all the Secretary of State’s apprehensions, they did accept them for the most part and in particular that it was credible that the Iranian government might retaliate by taking action against local embassy staff of against UK citizens: see [36]. The Court of Appeal similarly accepted the evidence noting that there had been no application to challenge the evidence of the Secretary of State: see [2013] EWCA Civ 199 at [70] (per Arden LJ). Thirdly and consequentially, the Supreme Court proceeded on the basis that the Secretary of State’s evidence had now been accepted by the Divisional Court and Court of Appeal. The ultimate result of the case was no doubt rooted in that fact as the judgment of Lord Sumption effectively recognized at [36].

The most important legal issue for the Supreme Court was that of proportionality. The distinction between the majority and minority goes to the heart of the issue of deference and the relationship between the courts and the executive in the context of Human Rights. The judgments discuss at some length the state of the case law relating to the treatment of national security considerations by the courts. Importantly as Lord Neuberger expressly recognized at [69] (in agreement with Lord Kerr) the Court of Appeal were wrong to confine themselves to the question “whether the decision-maker had approached the matter rationally, lawfully and in a procedurally correct manner”. In a case where human rights are adversely affected by an executive decision, the court must form its own view on proportionality: see [67]. Lord Sumption concluded that whilst the court was required to “test the adequacy of the factual basis claimed for the decision”, and was the “ultimate arbiter of the appropriate balance between” the Convention rights engaged and the interests of the community, the court was not usually concerned with remaking the decision-maker’s assessment of the evidence if it was an assessment reasonably open to her.

Given the factual backdrop, however, it is unsurprising that the majority reached the decision that they did. Once the evidential basis for risks to lives of FCO staff and British nationals was laid, arguments that the Secretary of State underrated the value of freedom of expression or overstated the risks were going to be difficult to sustain at the Supreme Court stage. As Lord Sumption said at [46]: “We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own.” Similarly Lord Neuberger said at [71] whilst a citizen might question the decision of the Secretary of State, a Judge has neither the experience nor knowledge to make such a finding, save in exceptional circumstances, which could not be established in the absence of any cross-examination. Lady Hale at [99] noted that whilst the court would not always take the government’s word for it, foreign policy and national security were government business. Three of the Justices (Neuberger, Hale and Clarke) expressly noted that there was room for considerable skepticism about the views reached but that in the absence of cross-examination it would be difficult to challenge them.

In light of this it is interesting to examine how Lord Kerr reached the opposite verdict. In fact Lord Kerr did not as such reject the Secretary of State’s assessment of the risks to national security. His first point was that given the predictive character of the Home Secretary and FCO and volatility of Iran, the assessment was inherently unreliable and diminishes its weight. Secondly, the risk of an adverse reaction by the Iranians should be entitled to limited weight because it would be unreasonable, anti-democratic and contrary to the standards and values of the UK. The difficulty with the first of these arguments is that although both of those factors are undoubtedly true, it is difficult to see how the Court can effectively circumvent the clear expressions of concern about safety to individuals. The second argument is also one that evokes moral sympathy but ultimately again does not provide an answer to security concerns. As Lord Clarke said at [111] he would have very much liked to be able to agree with Lord Kerr, but he did not think there was a proper basis for so doing.

Comment

One can see both that overturning the exclusion of Ms Rajavi might in fact turn out not to cause the diplomatic melt down or security risk cited, but also why the majority of the Supreme Court ultimately reached the view that they did. Indeed, both sentiments are expressed in the ‘reluctance’ of Lady Hale’s conclusion and Lord Clarke’s ‘extreme skepticism’ about the evidence but in his agreement with the majority about the result.

In any given case, it may be difficult to second guess the decisions of the executive in such weighty areas as diplomatic relations, national security, and terrorism. But history, however, reminds us of the importance of so doing both for individuals and the country. Whilst Lord Sumption distinguished the national security case of Zatuliveter, it is important to recall that this was indeed a case where MI5 witnesses were in fact cross-examined and the basis for their decision found wanting. The decision to invade Iraq in 2001 has and continues to be exposed as procedurally and substantively flawed by various inquiries and investigations. The decision in this case serves to underscore for future cases the difficulties which will lie ahead if governmental evidence is not challenged by way of cross-examination.