Case Preview: R (Lord Carlile & Ors) v SSHD in Supreme Court

See update here. In Khomeinism: Essays on the Islamic Republic Ervand Abrahamian argued that populism, and not fundamentalism, toppled the Shah’s regime. Having visited Iran during the reformist Khatemi era, I can say that back then Iranians did crave democracy but were powerless to change their nation’s Velāyat-e-Faqīh style of government. Over clandestine glasses of Iranian brew, local friends I made explained that Khatemi was powerless to change the culture of state institutions – the police, judiciary, media etc. – and barbaric militias like the Pāsdārān and Basij would fight until the last bullet to maintain the original version of Hokumat-e-Eslami.

This case is about Iran. It also involves article 10 ECHR (freedom of expression) and is now in the process of being decided by the UK Supreme Court. The issue is whether – in ruling that the SSHD’s decision to prohibit Mrs Maryam Rajavi (“R”) from entering the UK was not a disproportionate restriction of the rights of Lord Carlile and other Parliamentarians (“P”, eminent cross-party members of the House of Lords and the House of Commons) to freedom of expression – the courts below erred in law because either:

  • A restriction on the right of freedom of expression is not capable of being justified in the circumstances of this case by reference to a risk of violent retaliation by a foreign regime towards employees or citizens of the UK abroad; or

  • They failed to approach the question of proportionality correctly.

Lord Neuberger PSC, Lady Hale DPSC and Lords Kerr, Clarke & Sumption JJSC heard this appeal on 13 May 2014 and their judgment is awaited.

Context

R, a dissident Iranian politician residing in Paris, herself also an appellant, has been excluded from the UK since 1997 because of her leadership of the Mojahedin-e-Khalq or People’s Mojahedin Organisation of Iran (“PMOI”) – formerly proscribed as a terrorist organisation. R is also the “President-elect” of the National Council for the Resistance of Iran since 1993 and the US Government considers the two entities to be one and the same. R advocates (illegal in Iran) the overthrow of the Iranian regime. P, who invited R to address meetings in Westminster to discuss important issues relating to Iran, and R are aggrieved that further decisions by the SSHD in 2011 and 2012 to maintain R’s exclusion from the UK interferes with their rights to freedom of expression. For her part, R was and is willing to come to the UK. However, the SSHD insists on excluding R from entering the UK because it would not be conducive to the public good. The grounds for exclusion turn on security and foreign policy and not on fears of R’s conduct in the UK; the decisions have been made on the FCO’s recommendation in light of deteriorating UK-Iranian diplomatic relations.

The British Government, which is keen not to provoke Iran, is especially concerned that if R enters the UK, a backlash against its embassy and staff in Tehran would be inevitable and would further damage UK-Iranian relations because R is the de facto leader of an organisation that advocates overthrowing the Iranian regime. Both the Divisional Court and the Court of Appeal held that R’s exclusion was justified and proportionate. This case is unusual, perhaps unique, because the authorities have no issues with R’s views. She has genuine democratic credentials and has visited the European Parliament more than a dozen times: it is not a case like R (Farrakhan) v SSHD [2002] QB 1391 or R (Naik) v SSHD [2011] EWCA Civ 1546

Divisional Court

The Divisional Court (Stanley Burnton LJ & Underhill J, [2012] EWHC 617 (Admin)) rejected the argument that R’s exclusion violated P’s right of freedom of speech guaranteed by article 10 ECHR. The court held that it was not permitted to substitute its own views for those of the executive. However, Stanley Burnton LJ §36 doubted whether the decision to exclude R would influence the Iranian Government’s atomic weapons policy; to argue otherwise, he said, was “scarcely believable”. Overall the court found that the SSHD had established that excluding R from entering the UK was a proportionate and justified measure within the meaning of article 10(2) ECHR.

On the other hand, P argued that the SSHD’s view was not only too cautious but her approach in respect of the exclusion decisions also amounted to capitulation to pressure from an unlawful and tyrannical regime. Stanley Burnton LJ §28 observed that in circumstances where Parliamentarians’ right of free expression is engaged, both the ECHR and the common law exact that “the justification for any restriction must be particularly strong.”

Torn between following his heart over his mind, while pointing out that the SSHD’s political accountability is a matter for Parliament, his Lordship expressed his personal frustration by saying:

40. It was a sad irony that, on the day following the tragic death of Marie Colvin, an intrepid journalist seeking to convey the truth of atrocities in Syria, this court heard a case in which the Home Secretary seeks to uphold a restriction on the right of members of the Houses of Parliament to receive in the Palace of Westminster information from and the opinions of a prominent Iranian dissident whose country is an ally of the Syrian Government. From the beginning, my heart has been with the Claimants, and I would dearly have liked to find in their favour. Reluctantly, however, I have concluded that it would be wrong to do so.

Stanley Burnton LJ also §27 rejected the idea that a meeting with R could be satisfactorily be held via video-link because (i) no facility exists in the Palace of Westminster that can accommodate more than a hundred Parliamentarians (ii) personal meetings are more effective (iii) there is an important symbolic value of a meeting between R, a promoter of democracy and human rights in Iran, and Parliamentarians in the Palace of Westminster, the home of the Mother of Parliaments.

Moreover, R (Corner House Research & Anor) v Director, SFO [2008] UKHL 60 – where their Lordships’ House upheld the Serious Fraud Office’s decision to discontinue a criminal/corruption investigation into BAE Systems plc because the Saudis threatened to retaliate by withdrawing co-operation in counter-terrorism – resembled the present case more than Farrakhan or Naik. In light of Lord Bingham’s §41 conclusion that “[t]he Director was confronted by an ugly and obviously unwelcome threat”, it is hardly surprising that Stanley Burnton LJ §34 recalled the facts of Corner House “as too notorious to require restatement”: the irony indeed is that the Saudis (allies) made express threats whereas in R’s case there is only a fear of threats by the Iranians (enemies). A key aspect of Corner House was that the withdrawal of Saudi co-operation would result in British lives being put at risk on British streets, whereas in the present case the risk to British citizens/property and local embassy staff is in Iran itself.

Ultimately, Stanley Burnton LJ §38 reasoned that if Theresa May – on Alistair Burt (Parliamentary Undersecretary of State at the FCO) and William Hague’s recommendation – considers that the risk is sufficiently great to justify R’s exclusion then his court was not in a position to say that she was wrong.

Court of Appeal

As appellants in the Court of Appeal, P contended that the Divisional Court abdicated its role of considering the proportionality of the exclusion decisions with sufficient scrutiny. Moreover, by giving precedence to the possibility of unlawful actions by the Iranian regime, they argued that the court gave inadequate weight to the rule of law. It was perverse, they complained, to justify the exclusion decisions by reference to risks to local staff and British property in Tehran. Furthermore, there had been unfairness in failing to consult the Parliamentary appellants.

The Court of Appeal (Arden, Patten & McCombe LJJ, [2013] EWCA Civ 199) unanimously dismissed the appeal. Giving the leading judgment Arden LJ §7 outlined her decision: the Divisional Court had not abdicated its judicial function; the decisions gave adequate weight to the rule of law; failing to consult the Parliamentary appellants resulted in no unfairness. The Court of Appeal held that the proportionality assessment in connection to an interference with the exercise of the right to freedom of speech necessitates considering the context in which an applicant seeks to exercise that right. Moreover, where Parliamentarians sought to exercise their right of free speech on matters of public interest in Parliament itself their right was extremely important: on this point, a slight divergence of views was observable between Arden LJ (who §7 characterised “the value of the Parliamentary appellants’ exercise of their article 10 rights” as “exceptionally high”) and McCombe LJ (who §104 was not prepared to “go as far as that”).

In his witness statement, Lord Carlile of Berriew QC made it clear that in her capacity as leader R provides an important counterpoint to the religious and political beliefs of the present Iranian regime:

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.

Arden LJ §51 explained that under the proportionality test arguments for and against the interference with article 10 rights needed to be weighed in the balance. On the one hand, the court needed to place a value on the particular exercise of article 10 rights. Equally, on the other hand, the interests of the community, personified by the SSHD, whose protection is said to justify the limitation on the right, needed to be weighed in the balance. In examining these competing rights and interests, a fair balance needed to be struck so that “the scales are not unfairly tilted in favour of the community’s interests at the expense of individual rights guaranteed by the Convention.” Moreover, her Ladyship §56 clarified that, rather than an abstract assessment, the value of article 10 had to be considered in the context in which P sought to exercise their right. Noting that “[t]he link with the public interest is far from tenuous”, she accepted the submission that the exercise of the right in the instant case had an exceptionally high value because P desired to exercise their right in Parliament. Explaining that the interference with article 10 rights in the present case was §57 “not trivial” and was “in effect a denial of the right”, her Ladyship §56 said:

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.

Yet, for Arden LJ, in matters of foreign policy and security, the principle that the court should not substitute its judgment for the SSHD’s was well established outside the field of proportionality. Following R (Naik) v SSHD [2011] EWCA Civ 1546, a decision by which Arden LJ and her colleagues were bound, the principle of margin of appreciation (or discretion/judgment) applied to the issue of proportionality in the context of immigration control where an exclusion decision was challenged on the basis of article 10 in the context of proportionality. (Zakir Naik, an Indian televangelist, had infamously said that “…. if he [Bin Laden] is terrorising America the terrorist, the biggest terrorist, every Muslim should be a terrorist …”).

pmoi-logoHer Ladyship therefore §62 reasoned that the same was true as regards questions of foreign policy and security. She §§67 – 68 held that the Divisional Court’s decision that it could not gainsay the SSHD’s concerns about local embassy staff was in accordance with legal principle notwithstanding its view that allowing R to enter the UK would not result in the Iranians deciding to pursue atomic tests in retaliation. For her Ladyship, the Divisional Court was correct to conclude that (i) the state had established convincingly that the measure in question was necessary in a democratic society and (ii) the courts should be slow to review policy decisions because of their polycentric nature.

In her Ladyship’s judgment the SSHD “is at the least entitled to have regard to the welfare of the local staff and to the protection of British property in Tehran” §70. Arden LJ took the view that “[i]n 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” §72 (she §64 also relied on her article, Proportionality: the way ahead?). Because the UK’s relationship with Iran has historically been more sensitive, the fact that R visited Germany and France was not determinative. Similarly, R’s past trips to the UK were irrelevant as a contemporaneous assessment was required; the Iranians, her Ladyship held, would not differentiate between the courts and the executive and would inevitably interpret “an order setting aside the exclusion decisions as a case of double standards and support for terrorism” §71.

Arden LJ explained that for her to conclude that the SSHD’s concerns were irrational clearly involved substituting her own views for Theresa May’s as regards the risk of retaliation by the Iranians who “had in the past been prepared to sanction unlawful reprisals” §73. Her Ladyship also found nothing to suggest that P’s experience and knowledge on such matters was better than Mrs May’s. Patten LJ agreed with her Ladyship and he §96 did not wish to debate the difference in opinion between Arden and McCombe LJJ on the issue of the value of P’s article 10 rights because in his Lordship’s view the point was not critical to the appeal’s outcome. For his part, save that his Lordship considered §§106 – 107 that everyone has the same rights under the ECHR (notwithstanding that the extent of any justifiable restriction on such rights might vary depending on the circumstances), McCombe LJ concurred with Arden LJ.

Comment

Stanley Burnton LJ §38 said that even if one local employee was taken into custody and mistreated as a result of R’s admission to the UK, then admitting her was a mistake. Ultimately, the Divisional Court and the Court of Appeal could not disregard the November 2011 attack on the British Embassy in Tehran (for which compensation has been offered) on the first death anniversary of a nuclear scientist whose killing Iran attributes to Israel and the UK. The UK considered the incident a state sponsored attack on its diplomatic mission and responded by expelling all Iranian diplomats; from its own point of view, economic sanctions instigated by British efforts provide a better explanation for the attack. But should the UK (or “little Satan”) have stopped the Satanic Verses from being published to appease the Mullahs of Tehran? Iranians who consider freedom of expression to be the lifeblood of democracy would disagree and say no. To be sure, by fretting over R’s affair with P, the UK is being over-cautious about irritating Tehran’s theocracy.

Returning to Stanley Burnton LJ’s point about Iran’s unrelenting support for the Damascus regime and the continuing atrocities in Syria, it is really crazy that a female leader of the Muslim world who speaks for democracy and for human rights should be excluded from the UK despite being invited by this country’s lawmakers. However, a murkier side to R does exist. PMOI – whose ideology can be described as a blend of Marxism, feminism and Islamism – supported Khomeini in the Islamic Revolution but after taking power he executed its leadership/members. So PMOI fled to Iraq and conducted military (or perceivably terrorist) activities against the Iranian regime from their base near Baghdad; the Parisian leadership, including R, supported Saddam Hussein during the Iran-Iraq War (1980–1988) which left millions dead and wounded and created more than two million refugees. Saddam, of course, used chemical weapons against Iran and it bore the brunt of the devastation of that war.

Sitting at night in the chai khanay (tea houses) in the bridges over Isfahan’s Zayandeh River, one can only think that wow this placed must have rocked when it was “free”; but that it rocked too hard and burnt out quickly. Yet one would imagine that the scars of 1979 should have healed by now and if the Iranians choose to go crazy because of R airing her political views in the UK then that would be their own problem. If the Supreme Court dismisses this appeal then the Mullahs will surely laugh that the free world is afraid of Iran and is willing to suppress free speech in the Mother of Parliaments to appease radical Islamists. Will the justices follow the courts below and say that they will not substitute their decision for the executive (who may well have a valid point about not agitating the Iranians)?

It will be interesting to see whether, or if at all, the chemical weapons attacks by the Iranian backed Damascus regime will impact the Supreme Court’s decision? Given that Stanley Burnton LJ gave his judgment with some sadness, will the Justices of the Supreme Court be able to hold back their feelings in giving their judgment?

On the other hand, given the fluidity of Middle Eastern politics and recent advances made by the Islamic State in Iraq and Syria/Levant, it appears that irritating the Iranians by admitting R to the UK is even less of an option these days than it was in 2011/2012 because Tehran and Washington are contemplating co-operation as regards containing Islamic militants in Iraq. So Iran and its proxy Syria may soon in the future become the West’s allies against Sunni extremism and such an alliance is likely to hamper R’s case for admission to the UK. Ultimately, it seems that coupled with the turmoil in Iraq, William Hague’s 17 June 2014 announcement about the UK’s plans to re-open its embassy in Tehran forces the Supreme Court into a position where it must stifle Parliament’s right, perhaps weirdly sacrifice it, for the greater good of the Middle East and indeed the world.

Personally I think Mrs Rajavi should be allowed to enter the UK and say whatever she wants about the Mullahs – most people in Iran dislike them but are afraid to say so openly. But then again, as Arden LJ §74 emphasised, ministers are accountable to Parliament and:

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 above is also consistent with the message the UK Supreme Court (by a majority of five to two) gave accountants as regards extending legal advice privilege to their profession in R (Prudential plc & Anor) v Special Commissioner of Income Tax & Anor [2013] UKSC 1; namely that it is inappropriate for the Supreme Court to reshape the law where it is for Parliament to change it; and accountants are free to lobby Parliament to extend, through legislation, the scope of legal advice privilege.

But can our discussion end there? In Proportionality: the way ahead?, Arden LJ subscribed to Lord Brown’s R (Quila & Anor) v SSHD [2011] UKSC 45 dissent. She mentions a lack of metrics and flags up the existence of an EU-Directive (not binding the UK) that allowed raising the age limit of both parties for a marriage visa from 18 to 21 (other Member States had done exactly that she reminds us): overall, Arden LJ congratulates Lord Brown for “exposing a significant point of difference in law between the majority and minority judgments.”

In Proportionality, Arden LJ stressed that the majority in Quila “made no detailed qualitative judgment of the interests of the community in preventing forced marriages or of the interests of parties to unforced marriages. The effects on the latter had not been researched and were regarded as ‘colossal’.” The power of courts to impeach executive measures is a dangerous thing in her Ladyship’s view: from where it is arguable that a social policy measure, i.e. deterring forced marriage through an immigration rule by increasing the parties’ age from 18 to 21, was abandoned prematurely despite sufficient evidence that raising the ages was widely regarded as helping to prevent forced marriages. What she finds most striking about Quila is that the majority did not think that it was open to them to give weight to the executive’s judgment on the value of the measure.

In other words, Arden LJ thinks that the majority’s decision in Quila is potentially flawed because“the total number of marriage visas sought in the age group of 18 to 21 years was small … and that the rate of forced marriage was highest in the 17–20 years age group”: it was not that the measure was demonstrably ineffective, rather that the measure was not shown to be statistically effective in combating forced marriage; yet, quite inexplicably, the majority held that the executive’s case lacked “robust” evidence.

However, despite her admiration of Lord Brown’s Quila note of dissent, in fairness to Arden LJ, it seems that in Proportionality she does not quarrel with the majority view that weight could not be given to Parliament’s approval of raising the age for marriage visas because its scope to propose amendments to the Immigration Rules is limited.

In the present case, after establishing that the threat to British citizens/property and embassy staff was credible, the Divisional Court and the Court of Appeal declined to pierce deeper into assessing the threat. Equally, how reasonable is it for the UK to assume that Iranians might do something if R is admitted? Assuming that they would react, how far would they go? In the absence of answers to such questions, with the greatest of respect, it is quite possible that Arden LJ may well become the victim of her own critique – mounted on the basis of a lack of metrics – of the majority’s decision in Quila.

Finally, connecting Pakistan to the above, an analogous question arises in relation to Altaf Hussain and the MQM: would the UK quit the money laundering investigation against Altaf Hussain out of fear that the MQM might sack the (temporarily shut) British Deputy High Commission in Karachi?

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 10, Iran, Islam, Politics, UKSC and tagged , , , , . Bookmark the permalink.

One Response to Case Preview: R (Lord Carlile & Ors) v SSHD in Supreme Court

  1. mkp says:

    Lord Carlile of Berriew QC, & Ors, R (on the application of) v Secretary of State for the Home Department [2014] UKSC 60 (12 November 2014) http://www.bailii.org/uk/cases/UKSC/2014/60.html

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