The vibrant young Iranian men and women of North London who can be seen driving around waiving posters shouting “Maryam Maryam!” must have been disappointed by this judgment. Like Lord Carlile QC and the Parliamentary claimants, they expected much more from British justice but alas it was not to be. Paradoxically, Lord Sumption JSC’s judgment is more of a victory for the Theocracy in Tehran than it is for the UK: the Mullahs will no doubt be amused that Mrs Maryam Rajavi will remain excluded from addressing meetings in the Palace of Westminster on democracy, human rights and other policy issues relating to Iran. Britain’s interference in Iranian affairs and the murky legacy of Empire remained Lord Sumption’s point of departure – “the passage of time” he said “heals many things” but that in Iran’s case “injured pride can subsist for generations”.
Rajavi has a strange problem. She is someone – a woman with democratic credentials opposing the Ayatollahs, a “dissident Iranian politician, resident in Paris” – who the British establishment ought to greet with open arms. She did visit the UK in 1985, 1990, 1991 and 1996 but since 1997 she has not been permitted to set foot on British soil. It is the position of the British government that Rajavi’s exclusion, pursuant to paragraph 320(6) of the Immigration Rules, would be conducive to the public good for reasons of foreign policy and in light of the need to take a firm stance against terrorism. This is so because of her de facto leadership of Majahedin e-Khalq (“MeK” also known as PMOI, MKO etc). MeK was formerly proscribed under the Terrorism Act 2000 but de-proscribed in the UK (2007), in the European Union (2009) and in the United States and Canada (2012).
It initially opposed Mohammed Shah Reza Pahlavi and joined forces with Ayatollah Khomeini’s Islamic Revolution in 1979. Subsequently, MeK, which supported Saddam Hussein’s Baathist regime in Iraq during the bloody Iran-Iraq War (1981–1989), was purged by the Ayatollahs for perpetrating terrorist violence inside Iran. Rajavi was deputy commander of the opposition National Liberation Army during this time and has also been the President-elect of National Council of Resistance since 1993. Indeed, it is the present Home Secretary Mrs May’s stance that allowing Rajavi to enter the UK will be seen as a provocative and deliberate political move against Tehran and will trigger demonstrations/unrest outside the British Embassy similar to when MeK was deproscribed in the UK. The executive’s overall case was that Rajavi’s entry to the UK with a view to discussions with Parliamentarians would pose an appreciable risk of (i) reprisals, either instigated by the Iranian government or resulting from an ‘uncontrolled public reaction’, against persons for whose safety Britain is responsible such as locally engaged staff of the British Embassy in Tehran and British nationals inside and outside Iran; (ii) damage to British property still in Iran, and; (iii) a significant impairment of the UK’s ability to engage diplomatically with Iran on important issues, including nuclear non-proliferation, the Middle East and human rights. In the absence of embassies of the US or Israel, overtures to Rajavi would be costly for the UK (or “Little Satan”).
In 2010, Lord Carlile of Berriew QC and other parliamentary interlocutors, lobbied Mrs May to rescind the exclusion regarding Rajavi but it was upheld and requests for reconsideration were similarly rejected. Judicial review proceedings did not provide relief to the claimants (sixteen cross-party members of the House of Commons and the House of Lords and Rajavi). The Divisional Court (Stanley Burnton LJ and Underhill J)  EWHC 617 (Admin) dismissed the claim for judicial review of the Home Secretary’s decisions in February 2011, October 2011 and January 2012 to ban Rajavi from entering the UK. The Court of Appeal (Arden, Patten and McCombe LJJ, see here)  EWCA Civ 199 unanimously upheld that decision.
The Supreme Court
The Supreme Court held that, on the Foreign Secretary’s recommendation, the Home Secretary was entitled to exclude Rajavi because her entry into the UK would risk jeopardising its diplomatic and economic interests with Iran and might create violent backlash (in Iran) causing damage to British property and endangering the safety of British and local embassy personnel.
The court was unanimous in its rejection of the argument that the Home Secretary’s reasons were legally irrelevant because they were contingent on Iran’s potential reaction and that country did not share the principles enshrined in the European Convention on Human Rights (ECHR). Lord Sumption’s conclusion on “the threshold argument” turned on Rehman  1 AC 153 where Lord Slynn held that the phrase “conducive to the public good” was subject to the Home Secretary’s discretion and the question was one of judgment and informed by fact.
In light of Sürek v Turkey 7 BHRC 339 – where it was held at para 58 that freedom of expression “constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment” – Lord Sumption said at para 13 that according to the jurisprudence of the European Court of Human Rights (ECtHR), which was at one with the common law, freedom of expression had always been treated as a core right protected by the ECHR and that the more important the right, the more difficult it would be to justify any interference with it. Therefore, the exceptions in article 10(2) had to be construed strictly and the need of any restrictions had to be established convincingly. The trouble, as identified by Lord Sumption at para 15, with the claimants’ point was that “it involves treating as legally irrelevant something which is plainly factually relevant to a question which is ultimately one of fact.” The House of Lords rejected an analogous argument in Corner House Research  AC 756 – where the Serious Fraud Office’s decision to discontinue a criminal/corruption investigation into BAE Systems plc was upheld because the Saudis threatened to retaliate by withdrawing co-operation in counter-terrorism. In Corner House, Lord Bingham rejected the argument that a court of review was able to impose/substitute its own views on the constitutional decision-maker. The Supreme Court regarded Lord Pannick QC’s distinction – that Farrakhan  QB 1391 and Naik  EWCA Civ 1546 were different as their views were unacceptable to the Home Secretary whereas Rajavi’s values and opinions were unobjectionable – “as contrary to principle” because it was suggestive that the executive’s “views about the visitor’s opinions or their consistency with our collective values might make all the difference to the question whether a restriction on freedom of expression is justifiable”: para 17. In reality, the issue of the visitor’s presence/activities turned on its effects.
Lord Neuberger PSC similarly held at para 63 that the distinction was not justifiable either by logic or the wording of paragraph 320(6) and, albeit expressing regret because of the context of this case, his lordship therefore found it “impossible to accept that the same decision could not be made if the Home Secretary was concerned that a person’s presence in the United Kingdom would damage the national interest abroad.” Even Lord Kerr, who would otherwise have allowed the appeal, at para 144 rejected the argument – advanced on a misconstruction of United Communist Party of Turkey v Turkey (1998) 26 EHRR 121 – that an interference with article 10 rights can never be justified on the basis of an apprehension of action which is out of accord with ECHR standards.
Lawfulness and Proportionality
As for whether the Home Secretary’s decision was justified and proportionate, i.e. lawful, it was held by majority (4-1) that the Home Secretary’s anticipatory evaluation about Iran’s probable reaction deserved respect from the judiciary not only because of the constitutional separation of powers but also because of the superior experience and advice available to the executive. In doing so, the court rooted its decision in deference to the executive in terms of institutional competence and also on constitutional grounds. Lord Sumption said:
49. … We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the Foreign Office. We have only the material and the expertise to assess whether the Home Secretary has set about her task rationally, by reference to relevant matters and on the correct legal principle. Beyond that, in a case like this one, we would be substituting our own decision for that of the constitutional decision-maker without any proper ground for rejecting what she had done.
Lord Sumption explained at para 19 et seq that applying the proportionality test in Bank Mellat (No 2)  AC 700, in particular at paras 20, 21, 69 and 70, context defined the degree of weight or respect given to the assessment of the primary decision-maker. (Like the present case, Bank Mellat also arose out of a government decision in the conduct of foreign policy because HM Treasury restricted access to the UK’s financial markets by a major Iranian commercial bank, namely Bank Mellat, owing to its alleged connection with Iran’s nuclear weapons and ballistic missile programmes.) Moreover, his lordship clarified at para 20 that not all Convention rights were of equal weight and not all subjects called for the same degree of respect for the executive’s judgment. Referring back to his judgment in Bank Mellat at para 21 and that of Lord Reed at para 71, Lord Sumption reminded everyone of the majority and minority view that “no review, however intense, could entitle the court to substitute its own decision for that of the constitutional decision-maker.” Yet, despite his overall decision, Lord Sumption did not overlook academic critiques of “deference” (such as TSR Allan, Human Rights and Judicial Review: a Critique of ‘Due Deference’  CLJ 671 and J Jowell, Judicial Deference: Servility, Civility or Institutional Capacity?  PL 592) and he said at para 22 that “at least part of the difficulty arises from the word, with its overtones of cringing abstention in the face of superior status.” His lordship said that at times deference (which is embedded in constitutional separation of powers and pragmatism vis-à-vis the evidential value of certain judgments of the executive) is no more than recognising that (even where ECHR rights are engaged) the decision-maker’s function is not usurped by a court of review.
Both sources of deference, i.e. constitutional separation of powers and pragmatism, were considered in detail by Lord Hoffman in Rehman  1 AC 153 where the Home Secretary wanted to deport the appellant because of his association with an organisation which supported terrorism in the Indian subcontinent (Kashmir) and therefore his presence in the UK was not conducive to the public good. Rehman, where it was “rightly” argued that one man’s terrorist is another man’s freedom fighter, remained central to the court’s reasoning because it addressed the relationship between the courts and the executive – in that case it was held that a person’s activities may adversely affect the UK’s national security if they seek to overthrow a foreign government which would in turn take reprisals against the UK, affecting the security of the UK or its nationals. Lord Sumption extracted Lord Hoffman’s speech at length because it was the most definitive analysis of the question at play in the present case and “because it distinguishes the two distinct sources of the court’s traditional reticence in this area which are often elided”: para 26. The testing question critical to the outcome of the present appeal was how far the principles articulated in almost five decades of case law could be adjusted in cases unlike Rehman which are founded on the complainant’s Convention rights or other fundamental rights recognised at common law – the answer depended on the reason for the court to respect independence of the executive’s decision.
Lord Sumption, who otherwise accuses the ECtHR of exceeding its judicial competence, was clear at paras 28 and 29 that although it “did not abrogate the constitutional distribution of powers between the organs of the state which the courts had recognised for many years before it was passed”, the Human Rights Act 1998 has modified traditional notions of the constitutional distribution of powers and under section 6 “any arguable allegation that a person’s Convention rights had been infringed was necessarily justiciable”. Similarly, as identified by Lord Bingham in Shabina Begum  1 AC 100 the jurisprudence of the ECtHR exacted a standard of review of the proportionality of decisions of public authorities which was not only formal and procedural but to some extent substantive. Lord Sumption accepted that there was no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate in relation to reviewing the compatibility of executive decisions with the ECHR. But, on the other hand, he also said that standard of review stopped short of transferring the effective decision-making power to the courts.
Remembering Lord Phillips’ expression in Abbasi  UKHRR 76 that in adjudicating on a complaint about the infringement of Convention rights nothing which is relevant can be a “forbidden area”, Lord Sumption held at para 34 that the court had to (i) test the adequacy of the factual basis claimed for the decision; (ii) consider whether the professed objective could be “necessary”, as reflecting a pressing social need; and (iii) review the rationality of the supposed connection between the objective and the means employed, and to consider whether a less onerous alternative would have been available without unreasonably impairing the objective. Moreover, he said that despite being the “ultimate arbiter of the appropriate balance between two incommensurate values: the Convention rights engaged and the interests of the community relied upon to justify interfering with it … in determining the weight to be given to the evidence, the court was entitled to attach special weight to the assessments of a primary decision-maker with special institutional competence.”
For Lord Sumption, “Ministers are politically responsible for the consequences of their decision” whereas “Judges are not” and at para 32 he held that the former’s predictive judgment about Iran’s reaction was entitled to a large measure of respect from the courts. This was so not only because the constitutional separation of powers assigned such judgments to the executive but also because the executive was more competent, had better advice and was more experienced in dealing with such matters. According to Lord Sumption – who found this case to be an “archetypal example” of a situation where there may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range – predictive and other judgmental assessments of a political nature “involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically”: para 32.
In light of Al Rawi  QB 289 (where Laws LJ held that depending on the subject matter, the law accords to the executive an especially broad margin of discretion) and Miranda  1 WLR 3140 (where Laws LJ held that Schedule 7 of the Terrorism Act 2000 did not offend article 10 and that “free speech is not a creature of democracy; if anything, the converse”) it was hard to distinguish the fair balance question (i.e. that a measure is offensive because it fails to strike the right balance between private right and public interest) in the proportionality test from a political question to be decided by the elected arm of government.
In the event qualified rights such as article 10 are engaged, the court must decide for itself whether they have been interfered with and if so whether the interference is justifiable. Although conscious that the court was not bound to accept the Foreign Office’s evaluation of the consequences for UK-Iranian relations if Mrs Rajavi were admitted on British soil, Lord Sumption held that Mrs May’s decision was indeed rational. A proper basis for rejecting her views was required and in this case there was none. Similarly, the appellants’ grounds of challenge were not aimed at the evidential basis or the good faith of her decision and she had neither trivialised the value of article 10 nor exaggerated the risk and had therefore she was not wrong in principle. Lord Sumption held at para 39 that the Home Secretary had not underrated the value of freedom of expression and he thought at para 44 that Arden LJ’s para 57 conclusion that the interference with article 10 rights in this case was “in effect a denial of the right” was “too extreme a view”.
Although he accepted that the proposed venue (the Palace of Westminster) and the proposed attenders (members of the Houses of Parliament) added symbolic value to the occasion, Lord Sumption nevertheless held that Rajavi had not been denied the right to express her views, nor the Parliamentarians the right to receive them. The force of the point lay in the Home Secretary’s view that the risk to the safety of personnel and property outweighed the particular restrictions of freedom of expression associated with her decision, a question she had plainly addressed herself. Lord Sumption explained at para 46 that:
The decision calls for an experienced judgment of the climate of opinion in Iran, both inside and outside that country’s public institutions. The exercise is made more difficult by the intense political emotions engaged in Iran, combined with a large element of irrationality and the involvement of potentially violent mobs. The consequences of a failure to engage with this complex and unstable society are sufficiently serious to warrant a precautionary approach. It is the proper function of a professional diplomatic service to assess these matters as best they can. It follows that the only reasonable course which the Home Secretary could have taken once Rajavi’s position was raised with her by Lord Carlile, was to draw on the expertise of the Foreign Office, as she did. Having received what was on the face of it a reasoned professional assessment of the consequences of admitting Mrs Rajavi, it is difficult to see how she could rationally have rejected it. This court is no better and arguably worse off in that respect than she was. 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. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take.
Overall, Lord Sumption held at para 53 that on the undisputed facts before the Home Secretary it had not been demonstrated that she or the lower courts had been guilty of any error of principle and therefore “[t]here was no factual or legal justification for the court to take a different view” and accordingly the appeal was dismissed.
Lord Neuberger felt at para 70 that the court needed to “be extremely diffident” in differing from a ministerial decision, on grounds of proportionality, in a case where the vital diplomatic and economic interests of the UK were stake. The UK’s national traditions and institutional culture meant that it was “impossible” to challenge the existence of such risks and or the likelihood of such risks eventuating or the potentially gravity of their consequences.
Just as it is normally impossible for a judge to challenge the existence of such risks, once they are believed by the Foreign Secretary to exist, so it would normally be impossible for a judge to form a view as to how likely such risks are to eventuate and how serious the consequences would be. The decided authorities mentioned by Lord Sumption confirmed this – Rehman  1 AC 153, Chandler  AC 763, CCSU  AC 374, Ferhut Butt (1999) 116 ILR 607, Abbasi  UKHRR 76 , A  UKHRR 76 Jones  1 AC 136 and Gentle  AC 1356.
As for the idea that the consequences of Rajavi entering the UK had been exaggerated, Lord Neuberger concurred with Lord Clarke JSC that, save in exceptional circumstances, the court was not in a position to act on this. The fact that Mr O’Flaherty – a Foreign Office official responsible for diplomatic relations with Iran who supplied witness statements supporting the letters conveying the second and third decisions – had not been cross-examined fortified this analysis. Equally, because the risk of grave harm was there even a low probability of it occurring meant that the executive was the better judge as regards its scope and react accordingly.
In conducting a balancing exercise, Lord Neuberger said that it was the province of the executive to assess the risk (which was “real” or perhaps even “substantial”) of possible harm to the UK’s economic and diplomatic interests and that there was a lack of evidence for the court to form its own view of the risks. He held that the decision to exclude Rajavi was proportionate. The appellants’ article 10 rights did not outweigh the risks identified in this case and Lord Neuberger said this:
74. Furthermore, although the effect of the decision would be to impede political discussions with Mrs Rajavi, those discussions would not by any means be prevented: they could be conducted by videolink or (less convincingly bearing in mind the numbers involved) by the Parliamentarians visiting Mrs Rajavi in France. In addition, the decision not to admit Mrs Rajavi into this country was taken at the highest possible level, both at the Home Office and at the Foreign Office, namely by the relevant Secretary of State. It is also worth mentioning (although it is not a decisive point) that, as those objecting to the decision are members of the House of Commons and the House of Lords, it would, at least on the face of it, be relatively easy for the decision to be challenged in Parliament.
An expansionist of human rights law, Lady Hale DPSC, who at para 83 found this to be a “very troublesome case”, remained unconvinced that the appellants’ article 10 rights were sufficiently important to jeopardise the “fragile but imperative” relationship between Iran and the UK. Eager to make her position as clear as she could, her ladyship said that Rajavi’s case was not like Corner House (which was neither a human rights case nor a traditional judicial review). But this did not mean that Corner House or Rehman were irrelevant and it needed to be understood that some decisions were better made by the primary decision-maker rather than the courts. Lady Hale said at para 88 that she and her colleagues did not “frank” those judgments but instead accorded them “great respect.” Like Lord Sumption, Lady Hale reiterated Lord Bingham’s famous words in A – that a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen – and her analysis ended with the following rationale:
109. … In the end, I have reluctantly concluded that the risks anticipated by the Government, which we must accept are real, are, in the unusual circumstances of this case, sufficient to justify the interference with Mrs Rajavi’s and, more importantly, the Parliamentarians’ rights. No one can doubt the huge importance of what is going on in the Middle East to the national security of this country and of the whole world. Recent events have served to emphasise that our relations with Iran are not only “fragile” but also “imperative”. I cannot conclude that the Parliamentarians’ right to meet Mrs Rajavi face to face in the Houses of Parliament is sufficiently important to put that relationship at risk. They have the unique advantage that the Government can and must answer to Parliament for what the claimants see as an affront to their rights as Parliamentarians.
Going through the test as articulated by Lord Wilson JSC in Quila  1 AC 621 at 45 – and repeated in identical terms by Lord Sumption in Bank Mellat (No 2) – Lady Hale said that she did not doubt that it is for the court to make the proportionality assessment but that by the same token she did also not doubt that on some parts of that assessment the court should be very slow indeed to disagree with the executive’s assessment.
Lord Clarke JSC said at para 111 that he was “extremely sceptical” about the Home Secretary’s reasoning to exclude Rajavi from the UK from engaging in discussions about democracy and human rights in Iran but his lordship said that notwithstanding his instinct to join Lord Kerr in allowing the appeal he instead came to agree with Lord Neuberger’s judgment and shared the conclusion that there was “no basis upon which the court could properly allow the appeal”. Lord Clarke emphasised that in the absence of cross-examination of the witnesses or without a challenge to their veracity or reliability there was no evidence pointing towards a disproportionate decision and held at para 115 that “short of ‘genuflection’” the court needed to give “very considerable respect” to the Home Secretary’s decision.
The sole dissenting voice belonged to Lord Kerr who would have allowed the appeal. For him, the intensity of the review contemplated by Lord Sumption was insufficient because “[c]onvincing reasons for the interference must be provided – convincing, that is, to the court that is required to examine and assess them.” In his lengthy dissenting judgment, he held that the court is not required to “frank” the Home Secretary’s decision but give respect to it. Moreover, the court was competent and constitutionally required to assess the importance of the right infringed and it was wrong to give special weight to the Home Secretary’s point of view. Lord Kerr accepted that the Home Secretary has institutional competence in assessing the risks to the UK if Rajavi entered but he thought that she did not have the competence to assess the importance of the article 10 right and his lordship explained at para 155 that “[t]o conflate the two elements of the exercise is plainly wrong.”
He also found it incorrect to assume that the Home Secretary’s specialism in assessing the risk to British interests inhibits the court from performing the balancing exercise. Deference to the Home Secretary’s views did not end the court’s role and function because it is “entirely competent – and duty bound – to reach its own independent judgment”: para 156. (In his brilliant blog, Dr Mark Elliott concluded that “what really separates Lords Sumption and Kerr is not an interpretative disagreement about the meaning and effect of the HRA, but a more-fundamental ideological dispute concerning the respective functions of judges and politicians.”)
In striking the right balance, Lord Kerr thought that in comparison to Corner House the present case did not expose an explicit threat. He considered that, although rightly regarded as “solid countervailing factors”, the arguments couched in anticipated retaliation against Iranian employees and UK citizens and property were perverse and rooted in anti-democratic beliefs and could therefore not be allowed to prevail. In comparison, the interference with the appellants’ article 10 rights was direct and immediate but the risks of retaliation were not known exactly. Lord Kerr ultimately said at para 168 that the UK has “cherished and championed” the values, some of them for centuries, which Rajavi stood for. Moreover, because of the fact that the Parliamentary appellants considered her exclusion to be a matter of supreme national importance in relation to freedom of speech, this case was “one where only the most compelling and pressing circumstances would justify a restriction on the article 10 right.”
Lord Sumption’s introductory remarks about Iran’s injured pride are a bit one sided. In reality the West (America, Europe, etc) was seriously humiliated when the Turban replaced the Crown in Iran. The undignified manner in which the West lost Iran to the Ayatollahs was pretty shameful. Only twenty-five years before the 1979 Revolution, a US/UK sponsored coup deposed Mossadeq’s government and restored the monarchy to power. Inevitably, western thirst for cheap Iranian oil was responsible for bringing the Shah to the throne but he lacked political legitimacy. Unsurprisingly, when the anti-Shah demonstrations began in 1978 the oil workers were the first to strike. However, a lot has happened since then and, irrespective of the politics of oil and traditional enmities, these days it is counterproductive to alienate the Iranians.
After all, they are opposed to extremist forces such as Islamic State in Iraq and Syria (ISIS). Earlier in the year Iran hinted at cooperating with the US in helping the Iraqis overcome their problems. Just earlier this month Iranian jets were reported to be pounding ISIS targets in Iraq. But, more problematically, Iran denies that it is producing nuclear weapons and wants sanctions against it to be removed whereas the West suspects that the Iranians are secretly developing nuclear weapons with Russia’s cooperation. Last month’s nuclear talks with the US, UK, France, Germany, Russia and China were described by the Russian chief negotiator Sergei Ryabkov as a “crucial moment” for a settlement and according to him to let the opportunity pass would be a “serious mistake with grave consequences”. John Kerry’s meeting with Iranian Foreign Minister Mohammad Javad Zarif in Vienna gave the impression that the West is willing to compromise with Iran but that the Iranians are keen not to budge from what the West perceives to be their uncompromising position of not addressing the concerns of the UN nuclear weapons inspectors. As the UK’s Foreign Secretary Philip Hammond put it, “[t]he prize for Iran is huge” and a compromise with the West would allow the Iranians access to vast amounts of frozen assets and free trade with world. Despite missing yet another opportunity to resolve their differences on sensitive issues the parties have extended the deadline for a target date for a deal until July 2015.
The Supreme Court’s judgment – which took several months to be handed down and coincided with last month’s nuclear talks – is careful not to antagonise the Iranians: after all, as identified by Lord Kerr at para 170, the majority judgment turns on the fact that the Iranians, who could not care less about human rights, will not decipher between the court and the executive and would invariably see a judgment in Rajavi’s favour as an act of defiance and provocation. Just like the judicial decision to de-proscribe MeK was seen as a political decision by the Iranians, history would be repeating itself.
Because the court was answering the question whether the interference “was necessary in a democratic society”, the majority judgment also contains another angle for lawyers in the Indian subcontinent/South Asia because it easily lends itself to be being read as a judicial statement about the limits of what the courts can and cannot do. From that standpoint, the day is probably not far when judges elsewhere – for example in a country like Pakistan where “necessity” has been used as a justification to murder democracy, uphold the executive’s unlawful dissolution of Parliament and put guaranteed constitutional rights in abeyance to legitimise military rule – take Lord Sumption’s rationale beyond its immediate or “logical” conclusion to uphold human rights violations.