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FARRAKHAN v. Secretary of State for the Home Department [2001] EWHC Admin 781 (1st October, 2001)

Case No: CO/620/2001
Neutral Citation Number: [2001] EWHC Admin 781
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Monday 1 October 2001

B e f o r e :
THE HONOURABLE MR JUSTICE TURNER
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	FARRAKHAN	Claimant
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	Secretary of State for the Home Department	Defendant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Nicholas Blake QC, Mathew Ryder and Raza Hussain (instructed by Christian Fisher for the Claimant)
David Pannick QC and Steven Kovats (instructed by Treasury Solicitor for the Defendant)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE TURNER :

Introduction

1. The claimant challenges the decision of the Secretary of State for the Home Department dated 20 November 2000 by which an order of exclusion on him was maintained. In the relevant part of the decision letter, the Home Secretary wrote:

[He] has given close attention to the current tensions in the Middle East and to the potential impact on community relations in the United Kingdom. He has concluded that a visit to the United Kingdom by [the claimant], or the lifting of his exclusion generally, would at the present time pose an unwelcome and significant threat to community relations and in particular to relations between the Muslim and Jewish communities here and a potential threat to public order for that reason. Further, the Home Secretary remains concerned that the profile of [the claimant's] visit would create a risk of public disorder at those meetings.
As the terms of this letter indicate, this is a matter with a long history.
The statutory framework

2 Section 1 of the Immigration Act empowers the Secretary of State to lay down rules for regulating the entry into the United Kingdom of persons not having the right of abode and include the provision for the admission, subject to restrictions and conditions, of persons coming as visitors. There is no right of appeal to the Immigration Appeal Tribunal under the provisions of section 59 of the Immigration and Asylum Act 1999 since section 60(9) provides that it does not entitle a person to appeal against a refusal of leave to enter if

(a) the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry ... on the ground that his exclusion is conducive to the public good ...
(b) the leave to enter, or entry clearance, was refused in compliance with any such directions
The Immigration Rules contemplate that a person seeking entry can be excluded where the Secretary of State personally directs that exclusion is conducive to the public good; see paragraph 320(6) of HC 395.
History

3 On 16 January 1986, the then Home Secretary gave his personal direction that entry into the United Kingdom by the claimant would not be conducive to the public good. In September 1997, the late Bernie Grant MP invited the then Home Secretary to reconsider the continued exclusion of the claimant. By letter dated 30 October of the same year, the Home Secretary maintained the exclusion stating that
It was concluded that the threat [the claimant] posed to the maintenance of racial harmony in the United Kingdom remained.

* * * *
The balance between the need to preserve the freedom of speech and the undesirability of giving a platform here to those espousing views which would be deeply offensive to the public or large sections of the community is, of course, a very delicate one.

4 The letter concluded by inviting representations either from Mr Grant or the claimant, himself. Such were in course of time forthcoming. Meanwhile the Home Secretary carried out a review of the position. On 3 July 1997, the claimant's personal attorney informed the Home Office that if permitted to enter the United Kingdom, Minister Farrakhan would not come to stir tensions. His objective would be to summon all people particularly the Black community to rebuild the family through atonement and becoming an example of righteous conduct in their daily lives.

5 On 9 June 1998, and during the performance of that review, in circumstances which, despite enquiry raised by the court, remain obscure, the claimant was invited to sign an undertaking as to his conduct were he to be granted entry into the United Kingdom at any time in the future. It is important to understand that it was no part of the claimant's case before this court that the terms of the request or the giving of the undertaking created any expectation that the claimant would at any time in the future be granted leave to enter.

6 It is, however, relevant to consider in outline the terms of the undertaking. This involved an express recognition of the pluralistic nature of society in the UK and the need to avoid doing or saying anything which would be likely to jeopardise good community relations. The claimant also expressly recognised that the right to freedom of speech had to be exercised with due regard to the rights of others. There was a reference to the Public Order Act and the possibility of incitement to racial hatred giving rise to the commission of an offence under that Act. Finally, the claimant recognised that any breach of the undertaking would cause the Home Secretary to reconsider the exclusion of the claimant from the United Kingdom.

7 On 6 July of the same year, the Home Secretary informed the claimant that he had decided to maintain the exclusion. In a letter which contained a provisional notification of that decision, he invited further representations but made plain the basis of his then decision. He wrote:
The Home Secretary is able personally to exclude from the United Kingdom any individual whose presence here would not be conducive to the public good. An individual who holds views which are deeply offensive to large sections of the population would not normally be excluded unless the Home Secretary was also satisfied that the individual posed a threat to public order here or was likely to commit criminal offences here; in particular under the racial hatred provisions of the Public Order Act 1986.
After a reference to the undertaking, the Home Secretary continued:
He has also formally consulted several groups representing the black and Muslim population in the United Kingdom and has considered their views. All these groups expressed the basic sentiment that refusing to allow you into the United Kingdom without any firm evidence that your presence would lead to racial disturbance ran counter to the liberal and tolerant tradition of this country.

8 The Home Secretary then referred to a number of recent sayings by the claimant and continued:
[He] has received numerous representations against the lifting of your exclusion from Members of Parliament here and from Jewish representative bodies. They have suggested that your views are bigoted and racially divisive; that they exceed the right to freedom of speech and the spreading of such views incites anti-Semitism. In the circumstances the Home Secretary considers there is serious concern that you would, whilst in the United Kingdom, use language which would constitute an offence under the [Act of 1986] of stirring up racial hatred.

9 There was then a reference to the Stephen Lawrence Inquiry, during the course of which a disturbance had been caused by the behaviour of the British branch of the Nation of Islam and said:
[He] considers that the actions taken at this Inquiry by members of the Nation of Islam undermine your claims that if permitted to enter the United Kingdom you would not come to stir racial or religious tension. Furthermore, the incident gave rise to serious concern that any visit by you would pose a serious threat to public order as a result of the actions taken by the Nation of Islam members here and the raising of racial tension.
Further representations were both invited and made.

10 The representations which were made included detailed submissions on behalf of the Society of Black Lawyers. In their letter, reference was made to the fact that the claimant had visited Israel to which State he had given an undertaking substantially in the same terms as that which he had given to the United Kingdom Government, as above. On 23 July 1999, a letter from the Immigration and Nationality Directorate confirmed the continued exclusion. It is evident from the terms in which the letter was couched that events at the Stephen Lawrence Inquiry still played a decisive part in the decision making process. In response to a request made by the claimant's solicitors, the Home Secretary provided a number of quotations of racially divisive views which allegedly had been expressed by the claimant. Once again it is clear from that letter that the events at the Stephen Lawrence were still in the forefront of the Home Secretary's mind.

11 The claimant's solicitors set about addressing the detailed examples provided by the Home Secretary. These ranged in date from 1994 to 1998. The examples included two which happened not to be attributable to the claimant at all. The others were set in context in the appendix to the solicitors' substantive reply to the letter from the Home Secretary dated 14 October 1999.

12 In the decision letter itself, dated 20 November 2000, the Home Secretary noted that none of the claimant's speeches, the text of which were in free circulation in the US and the United Kingdom, had been made the subject of any legal proceedings, that a dialogue had been opened between NOI and certain Jewish groups in the US, that NOI had a reputation for advocating social responsibility and that the only violence associated with NOI in the United Kingdom was that at the Stephen Lawrence Inquiry, as above. He also noted that the claimant had never been excluded from any other country, that there was "nothing objectionable about his conduct on his trips to Canada, Australia and Israel". He also noted the signed undertaking and the claimant's current message as being one of reconciliation. The letter set out the fact that the Home Secretary recognised the nature of the right to freedom of expression and the democratic exceptions which can be made to it in accordance with Article 10.2 of the ECHR. In an oblique reference to Article 16, the Home Secretary also noted that:

It is, however, permissible to impose greater restrictions on the political activity of aliens than of a State's own citizens.
In coming to his conclusion that the claimant should continue to be excluded from the United Kingdom, the Home Secretary proceeds:
The Home Secretary is aware that sections of the community, particularly the Jewish community, clearly associates [the claimant] with anti-semitic views. The Home Secretary does not consider this perception to be without foundation.
The Home Secretary has given close attention to the current tensions in the Middle East and to the potential impact on community relations in the United Kingdom. He has concluded that a visit to the United Kingdom by [the claimant], or the lifting of his exclusion generally, would at the present time pose an unwelcome and significant threat to community relations and in particular to relations between the Muslim and Jewish communities here and a potential threat to public order for that reason.
Further the Home Secretary remains concerned that the profile of [the claimant], including the likely presence of other groups at meetings, would create a risk of public disorder at those meetings.
He has accordingly decided that [the claimant] should continue to be excluded from the United Kingdom on the grounds that his presence here would not be conducive to the public good for reasons of public order.
The challenges

13 From the terms of the decision letter, the claimant asserts that the most serious of the former objections to the grant of entry has now been abandoned by the Home Secretary who no longer contends that the claimant would incite racial hatred or commit any other violation of public order laws. Consequently, it is argued that the justification for the continued exclusion has to depend on the concerns of the Home Secretary in relation to the effect which the Claimant's presence in the United Kingdom would have on (a) his supporters (b) the general public (c) his opponents. As to (a) it was submitted that the fears of the Home Secretary are more apparent than real since the only evidence which there has been of disorder from this source was in connection with the Stephen Lawrence Inquiry and the steps taken in connection with that show that the disturbance was self-contained and suitably handled by the organisation itself. As to (b), the proposition has to be that the general public is insufficiently mature to be able to hear the claimant's message without resorting to disorder. It was submitted that the reality of the position is that the opposite effect is the more probable because the pressure to admit the claimant would be relieved. As to (c), the human rights element of free speech [the right to receive as well as to impart] could not properly lead to the conclusion that members of the British public would be likely to indulge in public disorder to any significant effect because of utterances made some time ago. Moreover, the decision failed to take into account the nature of the claimant's recent message of self reliance, self respect and dignity which he currently addresses to the Black community.

14 These outline submissions were supplemented in oral argument. In summary, it was submitted that the conclusions of the Home Secretary were disproportionate as they were neither based on any cogent evidence of the likelihood of future disorder nor upon the right of the claimant to impart, and of the Black community to receive, information from an international leader as the basis for debate on a range of important and contemporary issues. The decision was also said to be disproportionate as it was based on an unduly pessimistic fear of how the claimant's presence here would be received by the public in general and his opponents in particular.

15 It was to be noted that the power to exclude, as exercised by the Home Secretary personally is an exceptional step. Its obvious sphere of operation is likely to be when there is a threat to national security or other matters of high political or international sensitivity. It was also to be noted that the Home Secretary filed no evidence in opposition to that filed on the claimant's behalf thus, it should be concluded that there are no matters of a secret nature known to the Home Secretary and which in the national interest cannot be disclosed. So it is that the reasons for exclusion as set out in the decision letter(s) have to be reviewed against the known content and context of the claimant's previous utterances as well as the reasonably anticipated reactions of the public in general and the claimant's opponents in particular. Accordingly, it follows that the primary reasons for maintaining the exclusion engage the claimant's right to freedom of expression and the decision to maintain that exclusion on the basis of the provision of Article 10.2 of the European Convention of Human Rights. The court was thus invited to review the decision of the Home Secretary in accordance with the approach to the review of such decisions both in terms of the Convention itself as well as the common law. The question, as posed, was whether the interference with both components of the concept of free speech [the rights both to impart and to receive] could be justified in a democratic society.

16 The starting point for the exercise has to be the Article itself, the terms of which are well known but ought to be set out.

10.1 Every one 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. ...

10.2 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 ...

17 The court, it was submitted, was in a position to review the legality and proportionality of the decision of the Home Secretary. There has been discussion how far the provisions of Article 10.1 are engaged where it is the entry into the United Kingdom of an alien which is in issue. The claimant's argument proceeded upon the following lines. The complaint in the present case is against the decision of a State which had only recently adopted the ECHR. It is the decision or act of an official of the State which causes interference with the rights contained in Article 10.1. It is accepted that this Article does not confer any right of entry to an alien who would not otherwise be in a position to complain about any restriction on his freedom of speech. It so happens that the only reasons advanced for the refusal of entry, of so limited a nature as that which the claimant has requested, is the publication of the claimant's views and what the reaction may be of those who listen to, or are opposed to the publication of, those views. So. it is submitted that, the only identifiable reason for maintaining the refusal of entry is restriction of freedom of expression, consequently the Home Secretary must justify the exclusion, if he can, under the provisions of Article 10.2.

18 It is also important and relevant to consider the position of the adherents of the NOI in the United Kingdom. It is to be accepted that there are members of the organisation living in the United Kingdom who have a legitimate right to be involved in discussion about the tenets of the organisation and to discuss with the claimed leader his right to speak as its leader. It is also the case that whereas one Hilary Muhammad has been appointed as the sole authorised representative of the organisation in this country, others have disputed his right to hold such authority. The presence of the claimant in this country would help to ensure the legitimacy of the positions both of the claimant and Hilary Muhammad. The fact that, in some respects, it might be possible and practicable to communicate otherwise than by direct means [telephone, letter, e-mail] does not meet the requirement embodied in Article 10.1 which preserves the right of an individual both to express his opinions, and to have them received, in a particular place. What is at stake is the right, recognised by English law, for a person to express themselves in any form they wish, subject only to the needs of a democratic society to impose restrictions.

19 In anticipation that the Home Secretary would rely on Article 16 of the ECHR, the claimant addressed the court on the footing that the scope, purpose and application of this Article was obscure its application was uncertain. The Article provides:
Nothing in Article 10 ... shall be regarded as preventing any of the High Contracting Parties from imposing restrictions on the political activities of aliens.
It is not an Article which has found favour with text book writers. Thus in Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights it is suggested in chapter 5.4 that "the provision has for all practical purposes remained a dead letter. This ... provides sufficient reason to .. follow up the recommendation of the Parliamentary Assembly ... to instruct the ... committee of experts to make proposals for the amendment of (the convention) in such a way as to exclude restrictions ... with respect to political activity on the exercise by aliens of the freedoms guaranteed by Article 10 ..."

20 No doubt in an attempt to take the wind out of the sails of Mr Pannick QC, who represented the defendant in this case, reliance was also placed on a quotation from Lester and Pannick Human Rights Law and Practice (Supplement 2000) where it is said:

¶4.16.1 Piermont v France remains the only case yet to have reached the E Court HR under Art 16. But, in an allied context, there has been a recent sign that the very limited impact of Art 16 will be reduced still further by the introduction of European Citizenship ... . Moreover where the alien in question is a European citizen, it is likely that art 16 will have to yield to the powerful prohibition of discrimination on grounds of nationality imposed by ... Community law. In short art 16 is looking increasingly anachronistic.

21 The argument of substance deployed on behalf of the claimant was that any reliance by the Home Secretary on this Article would be inappropriate and without meaning. This would be for the reason that the Home Secretary in banning, or continuing to exclude the claimant from the United Kingdom was not imposing or upholding a restriction on his political activities but was imposing a complete bar on his ability to enter the United Kingdom for any purpose. Article 53 of the Convention preserves human rights and other fundamental freedoms ensured by the laws of any State or other agreement to which it may be a party. So, it was submitted that if the right to free speech was ensured by any other instrument than the Convention, such other convention, or municipal laws would have to take precedence.

22 Reference was made to Piermont v. France [1995] 20 EHRR 301 which is of assistance in relation to the scope of the Article 16 right. That case arose out of an intended visit to French Polynesia by a German MEP who had been banned by the High Commissioner because there was a risk of serious disorder as the result of her political conduct. The argument for the (French) Government was that the applicant could not rely upon her status as a MEP or as a European citizen to ensure her right of free speech and thus it was entitled to rely upon Article 16 in support of its ban upon her entry. In paragraph 64 of the judgment, the court rejected the applicant's claim that she was not an alien because of her EU citizenship but went on to hold that that same Article could not be used to restrict the rights ensured under Article 10. The court said:
(I)t considers that (the applicant's) possession of the nationality of a Member State ... and, in addition to that, her status as a member of the European Parliament do not allow Article 16 ... to be raised against her, especially as the people of the O(verseas) T(erritories) take part in the European Parliament elections.
In conclusion, this provision did not authorise the State to restrict the applicant's exercise of the right guaranteed in Article 10.

23 The conclusion which the claimant invited the court to draw from this passage was that, under this provision, the applicant was entitled to enjoy freedom of expression on political matters rather than enabling her to engage in political activity in the narrow sense. By parity of reasoning, the claimant's wish to discuss matters of religion and spiritual ideas was not to be prevented by the invocation of Article 16. In Harris et al Law of the European Convention on Human Rights it is argued that Article 16 may be limited only to

matters directly part of the political process; the setting up and the operation of political parties; expressions in connection with the programmes and campaigns of these parties; and participation in elections.

24 The common law has long regarded the concept of freedom of expression as being of particular importance as a feature of our democracy. This will only be because it is the antithesis of such that any restriction on the right of free speech should be contemplated. Thus before the United Kingdom had adopted the ECHR into its domestic legal system Hoffman LJ, in R v. Central Independent Television [1994] Fam LR 192 said at 202:

Freedom means the right to publish things which government and judges however well motivated think should not be published. It means the right to say things about which right thinking people regard as dangerous or irresponsible.

25 In the more recent case of R v. Secretary of State for the Home Department ex p Simms 2 AC 115 at 126, Lord Steyn said:

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 thought to get itself accepted in the competition market; Abrams v. United States (1919) 250 US 616, 630 ... . 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 facilitates the exposure of errors in the governance and administration of justice of the country; see Stone, Seidman, Sunstein and Tushnet Constitutional Law 3rd edition(1996) pp1078.

26 The final quotation from judicial authority upon which the claimant founded was from the judgment of Sedley LJ in Redmond-Bate v. DPP [1999] CLR 188 [paragraph 20] where he said:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom to speak inoffensively is not worth having. What Speaker's Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. ... our world has seen too many examples of state control of unofficial ideas. A central purpose of the (ECHR) has been to set close limits to any such assumed power.

27 In Zana v. Turkey (1997) 27 EHRR 667 the Strasbourg Court said at paragraph 51 of its judgment:

The court reiterates the fundamental principles which emerge from its judgments relating to Article 10:
(i) 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. Subject to paragraph 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, And the need for any restrictions must be established convincingly .... .
(ii) The adjective "necessary" within the meaning of Article 10(2), implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision .... .
(iii) In exercising its supervisory jurisdiction, the court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular it must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient" ... . In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts ... .

28 Article 19.3 of the International Covenant on Civil Rights 1966 seeks to define the circumstances in which the right to freedom of speech can be circumscribed in the following terms:
The exercise of the rights provided for in paragraph 2 carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights of reputations of others;
(b) For the protection of national security or of public order ... , or of public health or morals.

29 It was further submitted that the Court should ensure that the executive should not act in a way which was inconsistent with this treaty obligation. The concept of freedom of expression extends not only to the freedom to express ideas but, as has already been noted, to the rights of others to receive such ideas by all forms of communication. This can also extend to the provisions of Article 11 of the ECHR (freedom of association) which may be material to the claimant's case insofar as he wishes to address various meetings, if permitted to enter the United Kingdom.

30 Reference was also made to the decision in R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840. Since this case was also cited by the Home Secretary, it will be necessary to refer to it in the decision in this case, citation from it at this stage would be superfluous.

31 In his concluding submissions on behalf of the claimant, counsel directed the Court's attention to the fact that there was no evidence that the Home Secretary had consulted any particular group or groups within the United Kingdom who would be liable to be provoked to violence or other form of civil disorder if the claimant were to be admitted to this country. It was necessary, in accordance with the established jurisprudence of the Strasbourg Court for there to be evidence, as opposed to mere assertion, of the risk of such occurring. Here there was no evidence whatever. Nor yet was there any evidence that the risk of such meant that the decision of the Home Secretary, in the light of all the factors identified above, including the undertaking freely given, was proportionate to the possible disadvantages if the claimant were to be permitted to enter the United Kingdom for the period (one week) and purposes requested. Accordingly, it was the case that the decision was unreasonable, disproportionate and illegal.

32 The defendant accepted that both at common law and under Article 10 of the convention, freedom of speech could only be restricted if it was necessary, as identified in Article 10.2, in a democratic society. It followed that freedom of speech was a qualified right in respect of which it was for the Home Secretary to determine whether or not the applicant for entry was one who might imperil the safety of the State from provoked violence, or the threat of it. So it is that the Home Secretary retains a broad area of discretionary judgment under which he can determine whether a foreign national seeking leave to enter the United Kingdom should be permitted to do so. The absence of a right of appeal in those cases decided by the Home Secretary was indicative of the intention of Parliament that the decision in such cases was taken by the Home Secretary personally.

33 In relation to the facts of the instant case, the Home Secretary submitted that the claimant's essential message was that Jews, in general, have money and power and that Black people are the resultant victims; see bundle 5/19 ¶5 (1997), ¶6 (1994), ¶7 (1998), 42 (1996) and 102 (1997). It was pointed out that the claimant has never retracted, let alone apologised for, any of the anti-semitic statements which have been attributed to him in any of the passages referred to in the statements contained in the bundle. It was submitted that the Home Secretary's comments in the central paragraph of the decision letter at bundle p5/2 were unimpeachable and amply supported the conclusion expressed in the following paragraph. It was also the case that the Home Secretary was entitled to say that, in the light of the existing tensions in the Middle East, the entry into the United Kingdom of the claimant, as a person who had expressed the views attributed to him, would pose a very significant threat to community relations. The same would remain true, even if the claimant adhered to the terms of his undertaking, because of the reputation which he has gained and the statements he has made he would become a magnet for exacerbating tensions which already exist. It was probable that those sections of the community who were likely to attend the claimant's proposed meetings would be offended by his views and thus a risk of public disorder would be created.

34 The undertaking given by the claimant was expressly considered by the Home Secretary in reaching his decision. The Home Secretary was concerned that "even if he kept (to) it, the claimant's presence and speaking in this country will, because of his previously expressed views, damage community relations and pose a threat to public order". The undertaking would not prevent the claimant expressing himself in a manner which he may consider consistent with it but which others might regard as deeply offensive. So, it was submitted that the real question for decision was as to the clash between the claimant's right to free speech and the Home Secretary's proper concerns about damage to community relations and the risk of resulting public disorder. Consonant with the acceptance of the breadth of the Home Secretary's broad discretionary area of judgment there was no proper basis for the Court to exercise its supervisory jurisdiction.

35 The Court was reminded of the caution with which it should approach challenges to the decisions of democratically elected representatives. Thus reliance was placed on the passages in the speeches of Lords Bingham and Steyn in Brown v. Stott [2001] 817 where at paragraphs 834, 839 and 842 respectively they said:

[p834] Judicial recognition and assertion of the human rights defined in the convention is not a substitute for the process of democratic Government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decision of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies; see Lester and Pannick, Human Rights Law and Practice [1999], pp71-76. The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart ache and the thousand natural shocks That flesh is heir to" [Hamlet]

****
In interpreting the convention, as any other treaty, it is generally assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. ... . But the process of implication (of necessary terms) is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. [Lord Bingham] [p839].

The second aim [of the convention] was to foster effective political democracy. This aim necessarily involves the creation of conditions of stability and order under the rule of law, not for its own sake, but as the best way of ensuring the well being of the inhabitants of the European countries. The inspirers of the European Convention ... realised only too well that a single minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. ... . Thus, notwithstanding the danger of intolerance towards ideas, the convention system draws a line which does not accord protection of free speech to those who propagate racial hatred against minorities; Article 10; Jersild v. Denmark (1949) 19 EHRR 1. This is to be contrasted with the categorical language of the First Amendment to the United States Constitution ... . The European Convention requires that where difficult questions arise a balance must be struck, subject to a limited number of absolute guarantees, the scheme and the structure of the convention reflects this balanced approach.
[p842] Under the Convention system the primary duty is placed on domestic courts to secure and protect convention rights. The function of the European Court of Human rights is essential but supervisory. In that capacity it seeks to accord to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. On the other hand national courts may accord to the decisions of the national legislature s some deference where the context justifies it; ... . This point is well explained in Pannick and Lester [above] p742
Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions. [Lord Steyn]

36 That the present case was an example of one in which the court was being asked to review an exercise of discretionary judgment was plain from the following propositions:

1. The rights recognised by Article 10.1 were to be contrasted with the restrictions contained in Article 10.2

2. In a constitutional democracy there is still an important role for the elected representative, who is answerable to Parliament.

3. The Secretary of State often enjoys an expertise which is specific to him as, for example, in assessing risks to public order on the occurrence of certain events.

4. Here, the Home Secretary had given his personal attention to the particular problem posed by the application.

37 Hence, in the present case where the applicant was a foreign national and the application depended on the assessment by the Home Secretary of the risks of public disorder, the court should hesitate before preferring its opinion to that of the elected and experienced Home Secretary. It is up to the State to assess whether arguments in favour of entry are counterbalanced by the risk which exists, if entry is permitted, of damage to the social fabric of the country.

38 The Court was reminded that in matters of immigration policy the State has the right to control the entry of non-nationals to its territory; see paragraph 67 of the judgment in Abdulaziz v. United Kingdom (1985) 7 EHRR. Reference was also made to the decision of the Commission in Agee v. United Kingdom 7729/76 for the proposition that the rights of an alien under the provisions of Article 10.1 are independent of the right to stay in a country and cannot protect the latter right. How far this case, which was a decision of the Commission, and was based primarily on security considerations may be a matter of some doubt. However, the submission was that the claimant should be refused entry to the United Kingdom for proper immigration considerations and his right to free speech is separate and independent and could not, therefore override the former consideration. In this context, Chorherr v. Austria (1993) 17 EHRR 359 was cited to support the proposition that the State was entitled to take measures which would avoid the disruption or disturbance by opponents of the claimant. In that case, the court reaffirmed the position that Contracting States enjoy a measure of appreciation in determining whether and the extent that any interference by it with the right of freedom of speech is required in the circumstances which confront it. Finally, the defendant cited Otto-Preminger Institute v. Austria (1994) 19 EHRR 34 as a case in which the Strasbourg Court had upheld the decision of the Innsbruck provincial court which had ordered seizure and forfeiture of a film which depicted in satyrical form religious subject matter. The film was said to constitute an attack on the Christian religion especially Roman Catholicism. The film was intended to be shown in the Tyrol, an area of Austria in which 87 per cent of the population were Roman Catholic believers. The Strasbourg Court found that the film was to be exhibited publicly and that

(T)he issue before the Court was the weighing up of the conflicting interests of the exercise of two fundamental freedoms guaranteed under the convention, namely the right of the applicant association to impart to the public controversial views and, by implication, the right of interested persons to take cognisance of such views, on the one hand and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other. In so doing, regard must be had to the margin of appreciation left to the national authorities, whose duty it is to consider, within the limits of their jurisdiction, the interests of society as a whole. [paragraph 55]
(The judgments of) the Austrian courts ... held (the film) to be an abusive attack on the Roman Catholic religion according to the conception of the Tyrolean public. Their judgments show that they had due regard to the freedom of artistic expression ... under article 10 ... and for which ... the Austrian Basic Law provides specific protection. ...

****
The court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. ... The (A)ustrian authorities acted to ensure religious peace in the region and to prevent (sic) that some people should feel the object of the attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time. ... (T)he court does not consider that the Austrian authorities can be regarded as having overstepped their margin of appreciation in this respect. [paragraph 56]

39 This led to the submission that it was open to a State to restrict the freedom of expression if the objected material was, in respect of their religious beliefs, offensive to others.

40 Finally, it was denied that the refusal of the Home Secretary to revoke the order made in 1986 was not based on the risk that the claimant would commit a criminal offence. Rather was it the case that the Home Secretary could properly have concluded that the claimant's right to freedom of expression could not outweigh the interests of the community. If the Home Secretary was correct in his conclusion about this, then he was similarly entitled to conclude that they should also outweigh the rights of the claimant's followers to receive what he wanted to say. It was both practicable and reasonable for the claimant to communicate with his followers from abroad.
Discussion

41 It will have been noted that the Home Secretary both in the decision letter and in his submissions to the Court has laid heavy emphasis on the breadth of his discretion, or as it might be put the margin of appreciation which is non-justiciable. The reasons why this concept is available to the Home Secretary have to be fully respected by this Court as has been spelled out many times by the Strasbourg Court. But this does not mean that the domestic court is in anyway inhibited from embarking on a review of the reasons provided and of the underlying circumstances in order to determine whether or not the Home Secretary has failed to take into account relevant or taken into account irrelevant factors or has otherwise reached a conclusion which was not open to a reasonable decision taker. The rigour with which this exercise must be performed will depend on the environment and importance of the rights which are in question. In the present case the environment is, as has already been noted, the freedom of speech and expression and the right of others to hear what it is that the claimant wishes to convey and, it may be, enter into discourse on the subjects of interest. On the other hand is the right of the executive arm of government to take steps which are reasonably open to it to ensure that there is no significant risk of civil disorder as the result of anything which may reasonably be anticipated would be said by the claimant or his supporters if he was to be admitted to the United Kingdom.

42 In conducting the rigorous review of the relevant issues, the first step must surely be to examine the basis of the supposition that there is a likelihood or risk that disorder would occur. To perform this exercise, the actual history of the claimant and the precise nature of his teachings are clearly matters which call for examination. But it will not only be in respect of historical matters that there will be concerns. The current nature of the claimant's teachings and pronouncements must also be included in the exercise. Here it is at once material to note that the principal area in which the claimant has exhibited aggression has been in relation to Jews in general, and United States' Jews in particular. Thus it would be logical to conclude that the expectation of disturbance, if there were to be any, is that it would emanate from that quarter, or, at least, from Jewish sections of the United Kingdom population. Of the risk of such disturbance, the Home Secretary has produced no evidence whatever. The case rests on his assertion that `a visit to the United Kingdom ... would at the present time pose an unwelcome and significant threat to community relations and in particular to relations between Muslim and Jewish communities ... and a potential threat to public order for that reason'.

43 The nature of the claimant's present teachings is, perhaps, more relevant than what he has said in the past, albeit not exclusively so. It is possible to envisage that because of the extreme nature of past statements or speeches, the mere presence of the claimant in the United Kingdom would be likely to provoke public disorder. On the evidence this is not such a case. Examination should, therefore concentrate on the present position. The following are indicative of the context and probable content of the claimant's pronouncements:

1. NOI developed in the United States among the Afro-American communities, which have historically faced discrimination, from among others, Jewish-Americans, who in their turn have also faced discrimination

2. The teaching of NOI concerns the need for self reliance, self-discipline and the observance of religious, as well as national, laws. The need to develop responsibility among that part of society which has, or has felt itself to have, been culturally or economically disadvantaged.

3. Disapproval of violence, drugs and crime.

4. In 1998, a march was organised in Trafalgar Square by NOI in which more than 10,000 people took part. It passed off without incident.

5. The only recorded incident which might have indicated a propensity to violence or disorder was that at the Stephen Lawrence Inquiry, as to which, see above.

6. The terms of the first three paragraphs of the undertaking of June 1998, above. The integrity of which have never been the subject of challenge or doubt.

7. The outline programme contained in section 2 of the claimant's solicitors' letter of application dated 8 March 2000.

8. The fact that the claimant has been set on a path of reconciliation with Jewish leaders in the United States.

9. There is no evidence to support the position upon which the Home Secretary relied in July 1998 (bundle p42) as still applying in 2001.

10. The fact that the entry was for a limited period and limited purpose;

11. There was no history of violence or public disorder in relation to any public gathering associated with the claimant in the United States or elsewhere, including most importantly, Israel.

12. The mere recital of grounds which might have supported maintenance of the ban on the claimant could not support the Home Secretary's decision which had to demonstrate that he had in fact engaged with the complete circumstances of the application.

44 It is against the background of these outstanding features that the decision of the Home Secretary stands to be reviewed. As to the appropriate standard of review, the court must apply general principles as they have been developed both historically at common law as well as by the application of the ECHR. The current orthodoxy is to be found in the recent decision in the court of Appeal as represented by the case of Mahmood (above). Although all three members of the Court agreed that the appeal should be dismissed, they did so for reasons which differed. It was a case in which the decision under review was made prior to the coming into force of the Human Rights Act but was also one where the Secretary of State in exercising his discretion claimed to have done so on the basis that the Act was already in operation. In giving the first judgment in the case, with which May LJ agreed, Laws LJ identified three possible bases for the standard of review in a case in which a fundamental right was engaged, whether it was one recognised by the common law or the Human Rights Act. Thus the conventional Wednesbury test, the features of which are so well, known as to require no further elucidation. The second was that where a fundamental right was engaged, the decision maker must demonstrate that his proposed course of action does not interfere with that right or, in circumstances where it does, that there is objective justification for his so doing. Thirdly, it had been argued that since the Human Rights Act had received the Royal assent, the terms of the Convention were already in force. Laws LJ reject the first and third of these approaches. He concentrated on the second in the following terms; see judgement paragraph

[17] If the first approach is the right one, the challenge to the Secretary of State's decision is in my judgment wholly without merit. ... It was submitted that (there) were certain important matters, not referred to in the (decision letter). ... (I)t is enough for present purposes to state that if the test of review is the conventional Wednesbury principle, the Secretary of State had failed to consider any facts put to him, or that he had misapprehended the law..
[18] However the application of so exiguous a standard of review would in my judgment involve a failure to recognise what has become a settled principle of the common law, one which is entirely independent of the incorporation of the Convention by the Human Rights Act 1998. It is that the intensity of review in a public law case will depend upon the subject matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification. In this context the following passage from the judgment of Sir Thomas Bingham MR in R v. Ministry of Defence, ex p Smith [1996] QB 517, 554 has often been repeated:
The court may not interfere with the exercise of an administrative decision on substantive grounds save where the court is satisfied ... that it is beyond the range of responses open to a reasonable decision-maker but in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.

45 I should also cite the following passage from the judgment of Lord Woolf MR in R v. Lord Saville of Newdigate, ex parte A [2000] 1 WLR 1853, 1867 paragraph 37:
What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed ... because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficient countervailing considerations. Even the broadest discretion is constrained by the need for there to be (justification for) interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of interference with the human right involved ....

19. With respect this learning shows that in a case involving human rights the second approach which I outlined at paragraph 16 as to the intensity of review is generally to be followed, leaving aside the incorporation of the Convention; but that approach and the basic Wednesbury rule are by no means hermetically sealed the one from the other. There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required.

******

.... The more intrusive mode of supervision - the second approach which I have earlier described - which is apt by our domestic law to the review of decisions affecting fundamental freedoms will, in my judgment, in broad terms and in most instances suffice also at least as the beginning of a proper touchstone for review when the Convention is directly in play. It will, of course, fall to be tailored and adapted as the courts confront disparate situations in which, by force of section 2 of the 1998 Act, they are obliged to take account of in the Strasbourg jurisprudence; I have in mind in particular the application in cases concerning freedom of expression of a test of "pressing social need" where the question is whether an interference with the right is justified under Article 10.2. There will be occasions when the Court's duty is to be more muscular than has been its habit; but at every turn its decisions will form part of a continuum with what the common law has already said.

46 Lord Phillips of Worth Matravers MR took the position that the court should make its decision as if the 1990 Act was already in force. In paragraph 37 of his judgment, he reaffirmed the tests which the Court would apply as including the proposition that when conducting the review of a decision it would (a) subject the decision to the most anxious scrutiny and (b) require substantial justification for the interference with a fundamental freedom in order that it could be satisfied that the response fell within the range of responses open to a reasonable decision-maker. In the next paragraph of his judgment, the Master of the Rolls cited from the speech of Lord Hope of Craighead in R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 , 380-381 where he had said:
By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to the local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices will have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.

47 Then, after a reference to Lester & Pannick and the `discretionary area of judgment', he continued
It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.

******
When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the convention. When considering the test of necessity in the relevant context, the court must take into account the European jurisprudence in accordance with section 2 of the 1998 Act.

48 The fact that there exists in any member of the Executive branch of Government a discretionary area of judgment is not in issue in the present case. What is in issue is the question whether it can be seen from the terms in which his decision was cast that the Home Secretary has properly found and identified substantial and objective justification for it. It must, in my judgment, be the case that where, as here, the Home Secretary relies so heavily on his discretionary area of judgment for the purpose of justifying his decision he should make good his claim to have acted for good and sufficient reason. The inference which a court is bound to draw in the absence of a sufficiency of justification (reasons) is that there are none which will support the conclusion reached, or decision made, as being properly within the `discretionary area of judgment'

49 The reasons for this approach are not far to seek. It would not be conducive to the making of good administrative decisions if the maker did not have fully to express his reasons, relying instead on the universally available panacea of his `discretionary area of judgment'. Contained within the judicial pronouncements quoted above is the recurrent theme of `justification'. This word is devoid of meaning unless the process by which that is achieved is available for the `anxious scrutiny' or `muscular duty' of review which the Court, as the organ of state lying between the individual whose rights are threatened and the state itself, is by virtue of the jurisprudence examined above required to perform.

50 On a superficial level, the case of Otto-Preminger (above) may appear to bear a striking similarity to the present case. But this is only so if, contrary to the observations of Lord Hope in Kebilene (above), it is misunderstood or misapplied. Lord Hope, in the quoted passage, was concerned to differentiate between the application of principles under the Convention jurisprudence, in the context of the application of a margin of appreciation, rather than an expression of mere rules. It would be possible, but it would be entirely misconceived to take the decision in Otto-Preminger as laying down rules which could be applied in a situation where there was a vocal religious majority opposed to the exhibition of a film or other staged performance. In the decision of the Strasbourg Court, it is made plain in the clearest possible manner that the decision of the Austrian court to order seizure and forfeiture was the correct one in the province of Tyrol because of the particular religious position of the great majority of the population. There was evidence to establish that position. So far from that case being of assistance to the Home Secretary in the present circumstances, it is a most useful case to serve as a reminder that the exercise by the state of its `margin of appreciation' has to be objectively justified if it is to be safe from interference in judicial review.
Conclusion

51 The United Kingdom enjoys the benefits of a mature democracy and a general respect for the rule of law. The United Kingdom has a long and cherished reputation for respect for the freedom of speech which, as noted above, includes the right of those to whom the speech is directed to have it imparted to them. Such is indeed and for many years has been the common law. The common law is now joined by the ECHR in this respect. Both proceed upon the basis that the freedoms which each in their slightly different ways seek to protect can only be denied if a case of necessity can be made out. There is nothing in any of the jurisprudence to suggest that anything less will suffice for there to be interference by the State with any of the fundamental freedoms protected by our municipal, and now also Convention based, laws. It has been accepted, for many years that the right to freedom of speech and expression, including as must be emphasised the right of those who are interested to listen, are correlative aspects of one of the fundamental freedoms to which these principles are applicable.

52 It is accordingly necessary to analyse the decision letter to discern, if possible, what is the justification for the interference or restriction which the Home Secretary seeks to impose. By now it is already known what the result of that analysis has been. As an act of necessary comity between the Judiciary and the Executive the reasons which drove the court to the conclusion it has already announced must now be adduced.

53 The claimant is, and only holds himself out to be a Black Muslim. Insofar as his pronouncements have touched upon the relations between Jews and Muslims, they have been so restricted, particularly those in the United States of America. Historically, the claimant's statements relating to Jews were directed in the main to the inequality which existed between Jews and Black Muslims both of whom were and are racial minorities in the United States. The time when those pronouncements were made and which reached a state of great hyperbole and rhetoric has effectively now passed. The contemporary, and undisputed, evidence before the court, and so far as is disclosed in the decision letter also before the Home Secretary, was that in the more recent past the claimant has endeavoured to follow a path of reconciliation between Jews and Black Muslims as well as teaching the latter the virtues of self discipline and respect. Apart from the incident at the Stephen Lawrence Inquiry, which was successfully dealt with by NOI as an internal disciplinary matter, there is no history in this country or abroad of meetings or gatherings of NOI leading to any form of disturbance. Indeed two high profile marches in the United States, to one at least of which Jews were invited to, and did, take part, passed off without incident. There is a complete absence of evidence before the Court of racial, religious or ethnic tension between the Black Muslim and Jewish communities in the United Kingdom existing at the date of the decision letter. Of course it might be the case that this was due to the policy of exclusion of religious zealots of whom the claimant may be one. But it is in my judgment simply not made out, as it must if the Home Secretary is to be successful in this case, that there was more than a nominal risk that community relations would be likely to be endangered if the ban on the claimant's entry to the United Kingdom for the limited purposes and duration which he has sought were to be relaxed. Nor yet has the Home Secretary come within measurable distance of, in fairness he has not tried to suggest, demonstrating that the undertaking was not honestly given and that the expressions of intent both then and now were and are not sincerely held. By the same token no explanation has been offered why the undertaking which was provided at the instigation of the then serving Home Secretary, in unknown circumstances and for undiscovered reasons, which although it was acknowledged, should not have been accorded full weight and was effectively ignored, despite the reference to it in the decision letter.

54 It should, perhaps be said, if only to remove any misconceptions which may exist, that it is not the judgment of the Court that it is a `good thing' that the claimant should be permitted to enter the United Kingdom. No more is it the case that the message which he wishes to convey is one with which the Court would necessarily agree or disagree. Nor yet, further, is it the case that the Court holds or could hold any view as to the validity or purpose of the message which the claimant wishes to convey. None of these considerations were relevant to the decision which the Court was required to take. It is relevant to add that this decision relates only to the circumstances which obtained on the date upon which the decision of the Court was pronounced. Nothing that has been said in the course of these reasons for judgment can prejudge what decision might have been taken if other domestic political or international circumstances had been present at that date.

55 It was in the circumstances set out above that, in my judgment, the Home Secretary signally failed to establish `objective justification' for his decision to continue the exclusion of the claimant from the United Kingdom.

***********

MR JUSTICE TURNER: Mr Blake, Mr Kovats, I address you because I am sitting 15 minutes later than I had said I would. This has been due to a most regrettable lapse in the Administrative Court Office which meant that neither you nor Mr Kovats received a draft of the judgment which I am about to hand down until sometime, I think, after 10.00 this morning.
That said, I am most grateful to you both for the suggested amendments, which have, I think, in full been incorporated into what is now before you, which will be handed down as reasons for judgment and not as the facing sheet says, "draft reasons for judgment".
MR BLAKE QC: My Lord, I am obliged. My Lord, I was just handed this draft now.
MR JUSTICE TURNER: Yes.
MR BLAKE QC: I have not had a chance to go through every one.
MR JUSTICE TURNER: I have not had a chance to go through it. Such has been the difficulty in getting it published in the form which it is this morning that there may be one or two parts which are imperfect.
MR BLAKE QC: There may be one or two matters, yes.
MR JUSTICE TURNER: Subject to that, I now formally hand down the reasons for the judgment which I gave on 31st July. It follows from the terms of the reasons for judgment and what I said then that the decision of the Secretary of State is quashed.
MR BLAKE QC: My Lord, on behalf of the claimant, in terms of the relief, will your Lordship therefore issue the relief identified at section 7 of our claim form, which was a quashing order to quash the decision of the Home Secretary of 20th November 2000 to maintain the claimant's exclusion from the United Kingdom. That is the decision that was under challenge.
MR JUSTICE TURNER: Yes. That is, subject to anything Mr Kovats may say, the order I propose to make.
MR KOVATS: No, my Lord, I am content with that.
MR BLAKE QC: I ask for the claimant's costs of application.
MR JUSTICE TURNER: Yes.
MR KOVATS: My Lord, I do not resist that.
MR JUSTICE TURNER: Thank you.
MR KOVATS: My Lord, could I just say that in regard to any application for permission to appeal, subject to your Lordship's views, the Secretary of State would very much hope that he would have a few days in which to consider your Lordship's judgment --
MR JUSTICE TURNER: Yes, of course.
MR KOVATS: -- before deciding whether or not to make an application.
MR JUSTICE TURNER: Yes. That I fully understand. Now, it so happens that tomorrow I will be sitting in Wales, and the application, if there is to be an application and it is opposed, would have to take place there, unless the parties are content to make their representations to me in writing.
MR BLAKE QC: My Lord, I understand the difficulties that Mr Kovats may be in, but we would be opposing any application that may be made for leave to appeal and we would have three short succinct submissions to make.
MR JUSTICE TURNER: I wonder if you can sensibly make them until he has made his application.
MR BLAKE QC: I could, but obviously I am in my Lord's hands.
MR JUSTICE TURNER: It might be of assistance to the Secretary of State in deciding what action he proposes to take hereafter.
MR BLAKE QC: That occurred to me, and although it is a slightly unusual format, if I can just make --
MR JUSTICE TURNER: Anything that will smooth the course of things for the parties.
MR BLAKE QC: The first submission is that as we have just clarified in the terms of the relief, and as my Lord has made plain in the last paragraph of the judgment, this is not a decision that the claimant come to the United Kingdom or be allowed to come to the United Kingdom, but a decision quashing a particular decision to review the exclusion order and requiring that decision to be retaken in accordance with the law.
MR JUSTICE TURNER: That is particularly apposite and relevant to the last sentence of paragraph 54.
MR BLAKE QC: My Lord, it is precisely that sentence that I had in mind.
MR JUSTICE TURNER: Yes.
MR BLAKE QC: Therefore, if that is the result of this case and the Secretary of State will, if he does not appeal, have to reconsider the decision on its face, he can clearly take into account any developments that may have occurred since the decision was originally taken.
MR JUSTICE TURNER: Quite so.
MR BLAKE QC: Of course he will have to give an opportunity to comment, et cetera, but that will be a continuation or a new scheme of representations which may be the appropriate course in any event.
MR JUSTICE TURNER: Mr Blake, it offers me the opportunity of restating what ought really to be appreciated, that it is and was not my decision that the claimant now be admitted to the United Kingdom; merely that the decision taken on 20th November 2000 be quashed, a very important distinction.
MR BLAKE QC: I appreciate that, which is why I took my Lord to the relief we sought.
MR JUSTICE TURNER: You of course appreciate that, but it is not always so well recognised.
MR BLAKE QC: My Lord, that has always been our case, as my Lord knows.
MR JUSTICE TURNER: Yes, of course.
MR BLAKE QC: We respectfully submit in this case that that is a powerful consideration against the grant of permission to appeal by my Lord.
Secondly, it can be said that my Lord has not, as it were, created by this judgment a new principle or a new question of interpretation of the Human Rights Convention or the principles of public law, but has applied what is well-known reasoning and well-established reasoning and principles to a particular factual matrix and a particular factual decision based upon substantial consultation, the opportunity to put material before the decision maker, and a very fully reasoned decision, and of course it was that fully reasoned decision that shaped the arguments on either side and my Lord's decision.
So it is not something which requires to be resolved in a broader public interest in terms of the scope of the Secretary of State's powers. The claimant never suggested that Article 10, or the right of free speech, as it may be colloquially known under the Convention, gave him a right to enter, and my Lord has not found that. The claimant never submitted that the Secretary of State does not enjoy wide powers in pursuing his functions under the Immigration Act to exclude those where there are good reasons.
MR JUSTICE TURNER: I think not once but more than once the breadth of the Home Secretary's discretion is referred to.
MR BLAKE QC: Indeed, my Lord. Your Lordship will of course note that in the detailed reasoning in the judgment, my Lord cited in particular the well-known case of Mahmood , expressly recognising the discretionary area of judgment. In a sense, if anyone would want to make legal submissions about that, that might be the claimant, because my Lord knows that subsequently in the case perhaps even some different comments were made. But if there is any generosity, it is there on the side of the Secretary of State in deference to the wide discretionary area of judgment, rather than arguably the narrower approach that sometimes may arise in human rights cases.
So we submit that, although of course the Secretary of State will not have time to digest the judgment, there are no broad reasons of public interest why the Secretary of State should either seek leave to appeal or, more particularly, be granted it by my Lord. There are cogent reasons why a reconsideration, in the light of the judgment, according to law would be appropriate in everyone's interests.
Of course we do mention the third factor, which is that this case has been going on for many, many years. The exclusion order itself has lasted, I think, 16 or 17 years. The litigation itself has been some year in development, and that was preceded by at least two years of intensive exchange of correspondence and information. So it would be desirable that there be an effective resolution of this by a fresh decision according to law rather than by protracted interim appeal, which would, at the very best, still require a fresh decision according to law.
So, my Lord, for those reasons, we --
MR JUSTICE TURNER: I receive your anticipatory observations in opposition to the grant of relief. Thank you very much.
MR KOVATS: My Lord, of course I obtain a careful note of what Mr Blake has said. My Lord, I do not think, unfortunately, that the Secretary of State would be in a position to make submissions to you in Wales tomorrow.
MR JUSTICE TURNER: I was not proposing that it should be tomorrow, but it would have to be in Wales at a time of convenience to yourself and perhaps one of Mr Blake's juniors.
MR KOVATS: Yes. The Secretary of State, for his part, would be content to do the matter in writing, subject to anything that Mr Blake says.
MR JUSTICE TURNER: Anything that is put in writing obviously would be shown to Mr Blake.
MR KOVATS: Yes.
MR JUSTICE TURNER: Who would have an opportunity of adding further to his reasons in opposition, and I can then consider the matter on the papers.
MR KOVATS: My Lord, certainly. My Lord, we will do that within the week.
My Lord, there is one final matter, which is the question of a stay. My Lord, your Lordship granted a stay --
MR JUSTICE TURNER: I am not sure -- oh, the stay.
MR KOVATS: The stay. I would seek that the stay be continued until the disposal of the application for permission to appeal, if made, or until the time for seeking permission to appeal has expired.
MR JUSTICE TURNER: Then perhaps we should explore how long the Home Secretary will require to consider this.
MR KOVATS: My Lord, as I said, I can inform your Lordship that the Secretary of State can undertake to put in his written application, if he decides to make one, sometime this week, before the end of this week.
MR JUSTICE TURNER: That would be quite acceptable.
MR BLAKE QC: I am not entirely sure that there is anything that would need to be stayed apart from the beginning to reconsider, but --
MR JUSTICE TURNER: It is that the time for appeal should not run until further order.
MR BLAKE QC: Until further order or until --
MR JUSTICE TURNER: I make it plain that if I were persuaded that it was a case in which I should give permission to appeal, it would be conditional upon application.
- MR BLAKE QC: I am obliged.