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Cite as: [2002] EWHC 644 (Admin)
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Kurdistan Workers' Party & Ors, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 644 (Admin) (17th April, 2002)
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
in the third claim
Mr Philip Sales and Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Defendant in all three claims
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| (1) The Queen (on the application of the Kurdistan Workers' Party and Others) | Claimants | |
| - and - | ||
| Secretary of State for the Home Department | Defendant | |
| (2) The Queen (on the application of the People's Mojahedin Organisation of Iran and Others) | Claimants | |
| - and - | ||
| Secretary of State for the Home Department | Defendant | |
| (3) The Queen (on the application of Nisar Ahmed) | Claimant | |
| - and - | ||
| Secretary of State for the Home Department | Defendant |
____________________
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)
Lord Lester of Herne Hill QC, Mr Rabinder Singh QC and Mr Dan Squires (instructed by Bindman & Partners) for the Claimants in the second claim
Miss Helen Mountfield (instructed by Oldham Citizens' Advice Bureau) for the Claimant
in the third claim
Mr Philip Sales and Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Defendant in all three claims
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- The court has before it three separate claims challenging the proscription of organisations under the Terrorism Act 2000 ("the 2000 Act") and the compatibility of provisions of the Act with the Human Rights Act 1998. In each case I am concerned with whether to grant or refuse permission to apply for judicial review. The argument before me was far more extended, however, than is usual on a permission application. In the event I have decided to refuse permission in respect of all three claims; but my judgment is likewise fuller than is usual on a permission application, owing to the importance of the issues involved and the likelihood that they will be ventilated further in the Court of Appeal.
- In brief, the organisations concerned are the People's Mojahedin Organisation of Iran ("the PMOI"), the Kurdistan Workers' Party or Partiya Karkeren Kurdistan ("the PKK") and Lashkar e Tayyabah ("the LeT"). Each was proscribed by virtue of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 ("the 2001 Order"). In each case the claims include a challenge to the lawfulness of the proscription and to the lawfulness of the regime of offences laid down by the 2000 Act.
- I think it helpful to start with a description of the statutory framework and the factual history, before looking more closely at the individual claimants and their claims and at the specific issues relevant to the grant or refusal of permission. In considering the claimants and their claims, I shall take them in the order in which, by agreement, counsel addressed me at the hearing.
- Section 1 of the 2000 Act defines "terrorism" in broad terms:
- Schedule 2 contains a list of proscribed organisations. By s.3 the Secretary of State is given a discretionary power to amend the schedule, subject to approval by affirmative resolution of each House of Parliament. Thus s.3(3)-(5) provides:
- The requirements for an Order under s.3(3) to be made by statutory instrument and for a draft of the Order to be laid before and approved by resolution of each House of Parliament are to be found in s.123(1) and (4). There is provision in s.123(5) for an Order to be made without a draft having been approved if the Secretary of State is of the opinion that it is necessary by reason of urgency. In that event the Order shall cease to have effect after 40 days unless by then a resolution approving it has been passed by each House.
- By s.4 an application may be made to the Secretary of State for the exercise of his power under s.3(3)(b) to remove an organisation from Schedule 2, i.e. an application for deproscription. Such an application may be made by the organisation itself or by any person affected by the organisation's proscription. The Proscribed Organisations (Applications for Deproscription) Regulations 2001, made under s.4(3), lay down the procedure for applications to the Secretary of State and provide inter alia that he is to determine an application within 90 days from its receipt.
- By s.5 an applicant whose application under s.4 has been refused may appeal to the Proscribed Organisations Appeal Commission ("POAC"). The powers of POAC and the consequences of its allowing an appeal are set out in s.5(3)-(5):
- The constitution and procedure of POAC are laid down in Schedule 3 and in the Proscribed Organisations Appeal Commission (Procedure) Rules 2001, made under paragraph 5 of Schedule 3. The rules make provision inter alia for the appointment of a special advocate to represent the interests of the appellant in the proceedings, in particular in any proceedings from which the appellant and his representative are excluded (rule 10). They also enable POAC to consider all the evidence upon which the Secretary of State relies in support of his grounds for opposing the appeal, including evidence that by statute or on general grounds of public interest cannot be disclosed to the appellant or his representative, with the POAC sitting in private for that purpose, and evidence that would not be admissible in a court of law (see in particular rules 21-22). By s.18(1)(f) of the Regulation of Investigatory Powers Act 2000 the normal prohibition on the receipt of evidence based on intercepted communications does not apply to POAC.
- It should also be noted that by the Proscribed Organisations Appeal Commission (Human Rights Act Proceedings) Rules 2001, POAC is the appropriate tribunal for the purposes of s.7 of the Human Rights Act in relation to any proceedings under s.7(1)(a) against the Secretary of State in respect of a refusal by him to exercise his power of deproscription under s.3(3)(b).
- By s.6 of the 2000 Act, a party to an appeal determined by POAC under s.5 may bring a further appeal on a question of law to the Court of Appeal, but only with the permission of POAC or, where POAC refuses permission, the Court of Appeal.
- Section 7 deals with the situation where there has been a successful appeal to POAC under s.5 but a person has been convicted in the meantime of an offence under any of ss.11-15, 15-19 and 56. In summary, provided that the activity to which the charge referred took place on or after the date of the refusal to deproscribe against which the successful appeal under s.5 was brought, the person convicted is entitled to appeal and to have his appeal allowed.
- That brings me to the offences that apply in relation to a proscribed organisation. In brief, and without detailing the various qualifications and defences:
- Further criminal offences, punishable by up to 14 years' imprisonment, exist under s.15 in relation to fund-raising for the purposes of terrorism, under s.16 in relation to the use or possession of money or other property for the purposes of terrorism, under s.17 in relation to arrangements to make money or property available for the purposes of terrorism (funding arrangements), and under s.18 in relation to arrangements facilitating the retention or control of terrorist property by concealment, removal, transfer etc. (money laundering). Those offences are not limited to proscribed organisations, but s.14 defines "terrorist property" as including any resources of a proscribed organisation and, as already mentioned, s.1(5) provides that action "for the purposes of terrorism" includes action taken for the benefit of a proscribed organisation. Pursuant to s.19 it is an offence to fail to disclose any belief or suspicion that another person has committed an offence under any of ss.15-18 if that belief or suspicion is based on information which comes to a person's attention in the course of a trade, profession, business or employment.
- The 2000 Act came into force on 19 February 2001. It included in Schedule 2 a list of proscribed organisations which are not material for present purposes.
- On 28 February 2001 the Secretary of State laid before Parliament a draft of the 2001 Order for the purpose of adding 21 organisations, including the PMOI, the PKK and the LeT, to the list in Schedule 2. On the same day he wrote to Members of Parliament explaining the proscription procedure and attaching a background note containing a brief description of the organisations included in the draft Order and of matters relevant to their proscription.
- The draft Order was debated by the House of Commons on 13-14 March 2001, in a debate lasting 1½ hours, and by the House of Lords on 27 March, in a debate lasting almost 3½ hours. The draft was approved by both Houses and the 2001 Order itself was made on 28 March and came into force on 29 March.
- In the course of the debates it was stated that in considering which organisations should be proscribed, the Secretary of State took into account a number of factors, including those indicated to Parliament by ministers during proceedings on the Terrorism Bill. Those factors were: the nature and scale of the organisation's activities, the specific threat that it posed to the United Kingdom, the specific threat that it posed to British nationals overseas, the extent of the organisation's presence in the United Kingdom, and the need to support other members of the international community in the global fight against terrorism.
- By letter dated 4 June 2001 an application for deproscription of the PMOI was made on behalf of the PMOI. The Secretary of State refused the application by letter dated 31 August 2001. The refusal was the subject of an appeal to the POAC. The relevant application for permission to apply for judicial review was lodged in the Administrative Court Office on 8 October 2001.
- An application for deproscription of the LeT was made on 8 June 2001 by Mr Ahmed, the claimant in the LeT proceedings. The Secretary of State refused the application, again by letter dated 31 August 2001. An appeal to the POAC was lodged on 17 September 2001. The relevant application for permission to apply for judicial review was lodged in the Administrative Court Office on 21 February 2002, immediately before the permission hearing.
- Neither the PKK itself nor any of the individual claimants in the PKK case applied for deproscription. They moved straight to their application for permission to apply for judicial review, by a claim form lodged in the Administrative Court Office on 28 June 2001. An application for deproscription of the PKK was, however, made by the Federation of Kurdish Community Associations in Great Britain. It resulted in a decision by the Secretary of State not to deproscribe. There has been no appeal against that decision. It remains open to the claimants to secure an appeal to the POAC either by obtaining an extension of time for appealing the previous refusal or by requesting the Secretary of State to make a further decision and then appealing that decision, if adverse.
- So far as I am aware, the appeals to POAC in relation to the PMOI and the LeT have been held in abeyance pending the outcome of the judicial review proceedings.
- In the PMOI proceedings, case no. CO/4039/2001, the first claimant is the PMOI itself. The second claimant is an individual member of the PMOI's international relations department who submitted the unsuccessful application for deproscription to the Secretary of State.
- In his note to Members of Parliament in support of the draft Order, the Secretary of State referred to the PMOI as "Mujaheddin e Khalq", a description which the claimants say is incorrect and is used only by the Iranian Government. The Secretary of State's note describes it as "an Iranian dissident organisation based in Iraq which claims to be seeking the establishment of a democratic, socialist, Islamic republic in Iran." It refers briefly to the organisation's history, states that the organisation undertakes cross-border attacks into Iran, including terrorist attacks, that it has assassinated senior Iranian officials and launched mortar attacks against government buildings in Tehran and elsewhere, and that in June 2000 the Iranian government claimed to have foiled a plot by the organisation to assassinate a former Iranian foreign minister. The note states that the organisation has not attacked UK or Western interests and has no acknowledged presence in the UK, although its publication "MOJAHED" is in circulation here.
- In his letter of 31 August 2001 refusing the application to deproscribe the PMOI, the Secretary of State stated:
- The claimants, in extensive evidence filed in support of their claim, take issue with the accuracy and completeness of the Secretary of State's note to Members of Parliament. They describe the PMOI as a broad based popular resistance movement committed to the establishment of a democratic, secular and pluralist government in Iran which would respect human rights and the internationally recognised norms of state behaviour. It has sought to achieve its aims through the political system but it has been denied access to the political system through brutal suppression at the hands of the Iranian regime. It has therefore been driven to resort to armed struggle in Iran. It is not based in Iraq but operates underground in Iran, where all military activity is organised and commanded. According to the claimants, the PMOI's armed attacks have been confined to military targets inside Iran, as permitted within the framework of the Geneva Convention. The organisation has an official or unofficial presence through 170 offices around the world and enjoys extensive political support in Europe and elsewhere. It is not an illegal organisation in the USA, where the only restriction is that it cannot raise funds (the successful challenge, on procedural grounds, to the designation of the PMOI as a foreign terrorist organisation in the USA is referred to below). The only government seeking the banning of the PMOI is said to be the Iranian government itself.
- The PMOI claimants seek judicial review of the decision of the Secretary of State to lay the 2001 Order before Parliament, the 2001 Order itself and provisions of the 2000 Act. They seek declarations to the effect that the inclusion of the PMOI in the list of proscribed organisations was unlawful, alternatively a declaration that the relevant provisions of the 2000 Act are incompatible with their Convention rights. In the event that the challenge succeeds, they also seek damages pursuant to section 8 of the Human Rights Act.
- In common with the other claimants, the PMOI claimants point first to the grave impact of the 2001 Order upon them. The proscription of the PMOI and the consequential criminal prohibitions under ss.11-19 of the 2000 Act give rise to a substantial interference with the right to freedom of expression under Article 10 of the Convention, the right to freedom of association under Article 11 and the right to enjoyment of property under Article 1 of the First Protocol. It is said that the inclusion of the PMOI in a list containing organisations of a wholly different nature, such as Al-Qa'ida, also gives rise to an interference with the civil right to a good reputation under Article 8 and with the right to the enjoyment of Convention rights without discrimination under Article 14.
- More specifically, the effect of the Order has been to prevent the PMOI from distributing its publication MOJAHED in the United Kingdom otherwise than by postal delivery to subscribers or via the Internet, to prevent the advertising or holding of public meetings in this country, to restrict the holding of property and raising of funds here (though the PMOI had already ceased to maintain an office in this country owing to a concern that a growing rapprochement between the United Kingdom and the Iranian government would lead to its proscription) and to prevent the continuation of previously extensive contacts with humanitarian organisations via the United Kingdom.
- The claimants emphasise that the Order operates as prior restraint upon the exercise of their Convention rights, as distinct from imposing a penalty for abuse of those rights, and is therefore the most drastic form of restriction, requiring the most compelling justification and the most careful judicial scrutiny.
- Lord Lester QC has summarised his detailed submissions on behalf of the PMOI claimants under four broad heads: (i) arbitrary and discriminatory treatment, (ii) lack of due process and procedural unfairness, (iii) lack of proportionality and (iv) failure to comply with the requirements of legal certainty and "prescribed by law". Although this does not cover every point included in the claim form and skeleton argument, other points (e.g. that it was unlawful or irrational to include 21 organisations in a single Order) are sufficiently dealt with in the context of submissions for other claimants or do not need to be mentioned in order to give a sufficient indication of the nature of the PMOI claim.
- As to (i), arbitrary and discriminatory treatment, Lord Lester submits that it is well recognised in domestic as well as in Convention law that like cases should be dealt with in the same way and unlike cases should be dealt with in different ways. In this case the Secretary of State has unfairly discriminated by including the PMOI in a list with organisations such as Al-Qa'ida. Of the 21 organisations in the list, the PMOI is the only one recognised by the Secretary of State to be democratic in its aims. The list also excludes many groups that use or threaten violence for political ends. The list is therefore both over-inclusive and under-inclusive. It is incumbent on the Secretary of State to provide an objective justification for such differences of treatment, which he has failed to do. Moreover this meant that MPs, in considering whether to approve the Order, were faced with a dilemma either to proscribe Al-Qa'ida and all the others in the list or to proscribe none of them.
- As to (ii), lack of due process and procedural unfairness, the complaint is that the Secretary of State included the PMOI in the list and laid the draft Order before Parliament without first giving the claimants any opportunity to make representations. Reliance is placed on the decision of the US Court of Appeals for the District of Columbia Circuit in National Council of Resistance of Iran v. Department of State (8 June 2001), in which it was held that the designation of two organisations, including the PMOI itself, as "foreign terrorist organizations" violated their due process rights under the Fifth Amendment to the US Constitution by failing to give notice of the intended designation and to afford the organisations an opportunity to respond, at least by way of written representations, to the evidence upon which it was proposed to rely. The court pointed to the serious consequences of designation and to the limited scope of ex post statutory judicial review, which related to the adequacy of the record. It held that to give an organisation such as the PMOI notice of proposed designation and of the administrative record to be relied on would not impair the country's legitimate foreign policy goals, subject to the right to withhold classified information and to the possibility of withholding all notice and all opportunity to present evidence where it was shown that harm might otherwise be caused to such goals. Thus the court concluded:
- So too, it is submitted, the Secretary of State's failure to give the PMOI an opportunity to make representations before laying the draft Order before Parliament was unlawful under the Convention and the common law. There was no pressing reason why such an opportunity should not be given: had there been so, the Secretary of State could have utilised the urgent procedure under s.123(5) of the 2000 Act, which he did not do. It cannot be presumed that the PMOI would have been unable to put forward material capable of causing the Secretary of State to change his mind.
- As to (iii), lack of proportionality, it is submitted that the proscription of the PMOI lacked an adequate justification and in particular was in breach of the principle of proportionality. In the particular case of the PMOI it is not even accepted that proscription was in pursuit of a legitimate aim: it is said to be unclear what legitimate objectives are pursued by proscribing an organisation which attacks only military and governmental targets in an effort to replace a profoundly undemocratic regime with one which is pluralistic and democratic and which upholds human rights and the rule of law. In any event Lord Lester submits that the Secretary of State, upon whom the burden of justification rests, has presented no evidence that proscription of the PMOI was proportionate, having regard to the nature of the Iranian regime and of the PMOI's activities and the support for the PMOI in this country and elsewhere. It is not suggested that the PMOI poses a threat to UK nationals or that it has attacked British or Western interests. The UK public interest is adequately protected by sections 59-63 of the 2000 Act, which make it an offence to incite terrorist acts overseas or to do anything outside the United Kingdom as an act of terrorism or for the purposes of terrorism or where the action would have constituted the commission of an offence under ss.15-18 if it had been done in the United Kingdom. The case for proscription is not made out on the high level of scrutiny required by the court (as to which, see e.g. R (Daly) v. Secretary of State for the Home Department [2001] 2 WLR 1622 at 1634H-1635B per Lord Steyn).
- As to (iv), it is submitted that the proscription of the PMOI was in breach of the principle of legal certainty and the requirement that any interference with the relevant Convention rights must be prescribed by law. The definition of terrorism in s.1 of the 2000 Act is sweepingly broad and extraordinarily vague. It covers any foreign government, however oppressive; it potentially covers almost all liberation movements, whether or not fighting against an undemocratic regime which does not respect human rights; it does not distinguish between those aiming only at military targets and those aiming at civilian targets. It is so broad that it was necessary for the Attorney General to clarify in correspondence that the claimants' solicitors would not risk criminal liability under s.1(5) read with s.16(1) by providing legal services for payment to the PMOI. The power under s.3(3)(a) to proscribe an organisation believed to be concerned in terrorism is by its express terms unlimited. In view of the drastic consequences of proscription, more precise criteria for the exercise of the power to proscribe need to be included in the legislation itself in order to comply with the requirements of the Convention. In any event no criteria exist even by way of administrative guidelines. Moreover the fact that Parliament was required to approve the Order before it came into force did not protect against arbitrary proscription, given the limited information provided to Parliament, the short time given for consideration of the list and the need for an all or nothing decision in relation to the 21 organisations included in the list. Concern about those matters was expressed in the course of the Parliamentary debates. Looking at the procedure as a whole, it lacks the protections against arbitrariness that the Convention requires.
- In the PKK proceedings, case no. CO/2587/2001, the first claimant is the PKK. The second claimant is the co-ordinator of two Kurdish campaigning groups in the United Kingdom, edits a magazine called "Kurdish Report" and provides administrative advice and support for the Kurdistan National Congress which maintains an office in London. The third claimant works on a voluntary basis for many Kurdish groups and organisations, including the Kurdistan National Congress; much of his work is with refugees. The remaining claimants are 100 individuals who describe the PKK as their "chosen political organisation". It is said that they are only a small proportion of those who wished to be joined as claimants.
- In his note to Members of Parliament, the Secretary of State described the PKK as "primarily a separatist movement which has sought an independent Kurdish state in south east Turkey". The note states that the PKK was formed in 1978 but became a significant terrorist threat only upon the formation of the group's military wing in 1984. Since then the PKK has been engaged predominantly in a guerrilla campaign in south east Turkey. The note refers to attacks on British and Western interests in the first half of the 1990s and to threatened attacks against Turkey's tourist resorts until 1999. In relation to the position since then, however, it states:
- In his letter of 5 October 2001 refusing the application for deproscription of the PKK , the Secretary of State stated inter alia:
- The claimants describe the PKK as a political party committed to the recognition and establishment of Kurdish identity and the rights of Kurdish people. Evidence filed on their behalf in the present proceedings deals further with the factual background, including the PKK's formal abandonment of military action in favour of a non-violent political and democratic agenda in 1999, a point on which the claimants place heavy reliance.
- The PKK claimants challenge both the making of the 2001 Order, including the decision to lay the Order before Parliament, and provisions of the 2000 Act relating to the consequences of proscription. In presenting his submissions on their behalf, Mr Emmerson QC stresses that the second aspect of the challenge raises distinct issues and that those issues arise even if the proscription of the PKK was lawful.
- As to the impact of the Order, Mr Emmerson relies on the same general points as those considered above in the context of the PMOI. He submits that proscription is seen by many in the Kurdish community as a victory for the Turkish government and the endorsement of suppression of the Kurds. He points to the depth of support for the PKK as demonstrated by the number of claimants and the thousands more who are signatories to a petition in support of the PKK. For such people the PKK is the sole means of political expression; yet proscription makes it an offence to invite support for the PKK even if it relates specifically to its commitment to a policy of non-violence. All political debate is suppressed. Members of the Kurdish community will be committing an offence simply by displaying PKK badges or participating in demonstrations of more than three people.
- Nor are the consequences confined to members or active supporters of the PKK. In a lengthy witness statement the second claimant, Estella Schmid, describes her work for Kurdish organisations in the United Kingdom and states that it would be impossible for these groups to remove the PKK from their contacts or discussions. She expresses the view that "[t]o banish the PKK and those who support it from participation in democratic discussion of the political future of Turkey and the Turkish people is to remove not merely the main nationalistic expression of Kurdish identity of the forty million Kurds world wide, but to make a mockery of any intelligent prospect of democratic debate and permanent peace in Turkey and elsewhere." She refers later to the serious effect of the proscription of the PKK on her journalistic work as editor of the Kurdistan Report and to the impossible choice that she faces of going to the police (and thereby betraying all possibility of future work within the community) if she has knowledge or suspicion of fund-raising activities for the PKK, or of herself committing a crime by failing to do so. The serious impact of proscription of the PKK on the Kurdish community as a whole is also dealt with at some length in the witness statement of the third claimant, Diyari Kurdi.
- Citing such evidence, Mr Emmerson describes the present case as a paradigm example of the chilling effect of proscription on free speech.
- Mr Emmerson points to the threefold test for justification of an interference under Articles 10 and 11: the restrictions must (a) be prescribed by law, (b) pursue a legitimate aim and (c) be proportionate to the aim pursued. It is accepted for the purposes of the application that the 2001 Order pursues a legitimate aim. But it is submitted that in order to meet the requirements of "prescribed by law" and proportionality in a case where a discretionary power is conferred on the executive, the law must indicate the scope of that discretion and the discretionary power must be attended by procedural safeguards which are adequate to afford due respect to the interests at stake. Reliance is placed on numerous judgments of the Strasbourg court, including Herczegfalvy v. Austria (1992) 15 EHRR 437, Malone v. United Kingdom (1985) 7 EHRR 14 and Khan v. United Kingdom (2000) 8 BHRC 310. Mr Emmerson submits that the making of an order with such Draconian consequences as apply in the present case engages the highest level of procedural protection under the Convention.
- There are a number of strands to Mr Emmerson's more detailed submissions. In summarising them I shall concentrate on the emphasis given in oral argument, without seeking to cover the elaboration of the arguments to be found in the claim form and skeleton argument.
- The starting point is the very broad definition of "terrorism" in s.1 of the 2000 Act and the very broad power of proscription in s.3. The Act permits the proscription of organisations that would never be proscribed in practice, including organisations which are fighting against undemocratic and oppressive regimes and, in particular, those which have engaged in lawful armed conflict in the exercise of the internationally recognised right to self-determination of peoples (where the United Kingdom is bound in international law to recognise the right and to refrain from offering material support to states engaged in the suppression of the exercise of the right by military or other coercive means). The fact that the power of proscription extends wider than the use that Parliament can have intended to be made of it provides the strongest support for the requirement that intelligible criteria be laid down for the exercise of the Secretary of State's discretion and for effective Parliamentary and judicial scrutiny. The explicit assumption on which the legislation depends is that the Secretary of State will not proscribe certain organisations even though they meet the statutory criteria in ss.1 and 3. There is, however, no clear indication in the legislation or in any published policy of the Secretary of State as to the basis on which the Secretary of State is to distinguish between one organisation and another.
- The principal submission is that in a matter of this nature the criteria for the exercise of the discretion must be enshrined in the law itself. But even on the alternative basis that it was open to the Secretary of State to adopt clear criteria himself, it is submitted that he has failed to do so. The Secretary of State notified to Parliament that certain non-statutory factors would be taken into account (namely the nature and scale of the organisation's activities, the specific threat that it poses to the UK, the specific threat that it poses to UK nationals overseas, the extent of the organisation's presence in the UK, and the need to support other members of the international community). Those do not amount to adequate or intelligible criteria for the exercise of such a wide discretion. They provide no basis for determining which of the organisations meeting the statutory tests will be proscribed and which will not.
- The second strand in Mr Emmerson's argument is the absence of an opportunity to make representations before the Order was made. It is submitted that a right to make such representations arises under the common law or as part of the requirements of procedural fairness inherent in Articles 10 and 11 of the Convention. It is well settled that an individual directly affected by a proposed administrative act should, as a matter of natural justice, be given notice of the proposal in advance and an opportunity to make representations: Hoffman La Roche v. Secretary of State for Trade and Industry [1975] AC 295 at 368E. It is submitted that the obligation is capable of applying to an order passed by affirmative resolution (cf. R v. Secretary of State, ex p. AMA [1986] 1 All ER 164) and that, although a right to make representations in advance is not expressed in the 2000 Act, it is to be implied as a requirement of natural justice (cf. R v. Secretary for the Home Department, ex p. Fayed [1998] 1 WLR 763). The right cannot be discharged by the opportunity to apply for deproscription after the event; and no legitimate interest has been identified which would be prejudiced by affording an opportunity to make representations in advance. In common with the PMOI claimants, heavy reliance is placed on the decision of the US Court of Appeals in National Council of Resistance of Iran v. Department of State (8 June 2001). It is submitted that a similar requirement of procedural fairness is to be implied into the present procedure.
- Thirdly Mr Emmerson submits that the affirmative resolution procedure was inadequate in this case to meet the procedural requirements of the Convention, owing to the inclusion of 21 organisations in a single Order and the limited Parliamentary time available for debate. Parliament was faced with a choice between accepting or rejecting the whole list and it was not possible properly to debate the merits of inclusion of individual organisations. It is submitted that in order to avoid this situation, s.3(3) can and should be read as permitting the Secretary of State to include only a single organisation in any one Order. Only by having a separate Order for each organisation can effective Parliamentary scrutiny of the merits of the decision take place. Such a construction is open on the language of s.3(3), whereby the Secretary of State may by order add "an organisation" to the list, and is supported by the interpretative obligation in s.3 of the Human Rights Act.
- Finally Mr Emmerson submits that an appeal to POAC is inadequate to provide effective judicial scrutiny of the exercise of discretion. POAC is not concerned with the merits of the inclusion of an organisation in the list. It engages in a process of review which is necessarily limited in scope, given the breadth of the discretionary power and the absence of binding criteria by reference to which the Secretary of State's decision is to be judged. It is required to accord the Secretary of State a wide degree of latitude in the exercise of his discretion. Further, in so far as the challenge is to the compatibility of the 2000 Act with the Convention, it does not lie within POAC's jurisdiction to determine it.
- Even if the proscription of the PKK was valid, Mr Emmerson submits that the consequences of proscription as laid down by ss.11-19 of the 2000 Act entail a disproportionate interference with the rights of individuals. The essential rationale for the decision to proscribe, namely that the PKK's ceasefire may break down, cannot justify the criminal offences to which proscription exposes the Kurdish community for expressing support for the PKK.
- The judgment of the Strasbourg Court in Surek & Ozdemir v. Turkey (8 July 1999), in particular at paras 40-64, is relied on in support of those submissions. In that case criminal sanctions under prevention of terrorism legislation had been imposed on a publisher and an editor-in-chief in respect of the publication, in a weekly review, of an interview with a leader of the PKK and of a joint declaration by four socialist organisations. The Court held that the conviction and sentences were not "necessary in a democratic society" since they were disproportionate to the legitimate aim of the protection of national security and territorial integrity and the prevention of disorder and crime. In reaching that conclusion it stressed that freedom of expression constitutes one of the essential foundations of a democratic society and that the need for restrictions must be established convincingly, and that in exercising its supervisory jurisdiction the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In the particular case the impugned interferences also had to be seen in the context of the essential role of the press in ensuring the proper functioning of political democracy. The Court held that the domestic authorities had failed to have sufficient regard to the public's right to be informed of a different perspective on the situation in south-east Turkey and that the views expressed in the interviews could not be read as an incitement to violence or as liable to incite violence. (The judgment of the Court in Stankov v. Bulgaria (2 October 2001), cited by Lord Lester, contains similar observations.)
- Adopting the same approach, Mr Emmerson submits that to prosecute a person for inviting support for an organisation which has abandoned violence is disproportionate. Further, the very existence of the criminal law and the prospect of conviction and sentence are sufficient to interfere with the claimants' rights and to render them victims: cf. Bowman v. United Kingdom (1998) 26 EHHR 1 at paras 26-29. The restrictions on freedom of expression by the Kurdish community constitute a restriction of free speech which it is difficult to envisage being justified.
- In the LeT proceedings, case no. CO/878/2002, the LeT itself is not a party. The claimant, however, is a supporter of LeT who, as mentioned above, also applied to the Secretary of State for deproscription of the LeT and is the appellant to POAC from the refusal to deproscribe. The LeT is described in the claim form as a movement committed to the cause of self-determination for the people of Kashmir by means of the holding of a plebiscite as required by UN resolutions.
- The Secretary of State's note to Members of Parliament, however, describes it as an organisation which seeks independence for Kashmir and the creation of an Islamic state using violent means. It is said in the note to have had a long history of mounting attacks against the Indian Security Forces in Kashmir, to have been blamed for the massacre of 35 Sikhs in Jammu and Kashmir in March 2000 and more recently to have launched attacks in which several people were killed. An LeT leader is said to have recently made a public declaration that he wished to expand the conflict with India beyond Kashmir.
- In the Secretary of State's letter of 31 August 2001 refusing to deproscribe the LeT, it is stated:
- Mr Ahmed challenges the making of the 2001 Order proscribing the LeT, the refusal of the Secretary of State to deproscribe the LeT and the continuing proscription of the LeT. On his behalf Miss Mountfield adopts the submissions made by Lord Lester and Mr Emmerson. In the summary of the claimant's grounds it is contended in particular that the making of the Order was unlawful because it included 21 organisations and Parliament was unable to consider the individual merits of proscribing each organisation; it was unfair because no opportunity was given beforehand to make representations; the Order was not "prescribed by law" because the 2000 Act impermissibly leaves to the complete discretion of the Secretary of State which organisations falling within the wide definition should in fact be proscribed; the proscription is not necessary in a democratic society because it is a disproportionate interference with rights under Articles 10 and 11 of the Convention; and the proscription is discriminatory and in breach of Article 14. The same arguments are relied on in relation to the decision not to deproscribe and in relation to the ongoing proscription.
- The court's special attention is drawn by the claimant to the international law situation and factual circumstances of Jammu and Kashmir, which it is submitted were matters that Parliament was unable properly to consider but which render the proscription of the LeT disproportionate and discriminatory compared with other organisations which have not been proscribed. In particular, it is said that the LeT does not call for the armed overthrow of the Government of India in Kashmir, but campaigns for the right to a plebiscite; this is a campaign for the fulfilment of the international law right to self-determination; the LeT's military activities are directed exclusively against the Indian regime's military/security apparatus and to the disputed territory of Kashmir; they have never targeted civilians and have never posed any threat to the UK or to British nationals overseas; and independent human rights organisations have documented consistent human rights abuses and violations of fundamental tenets of democratic rule in Kashmir. Further, in relation to discrimination in breach of Article 14, it is submitted that the relevant class is of organisations capable of being proscribed as terrorist organisations and that no adequate justification has been advanced for the difference of treatment between the LeT and organisations such as the Northern Alliance in Afghanistan which have not been proscribed.
- It is submitted by Mr Sales on behalf of the Secretary of State that the challenges do not disclose an arguable case. I have come to the view that the challenges are arguable, or at least that they contain a sufficient number of arguable points to get over the threshold in respect of the main issues. In the circumstances I propose to deal with the topic of arguability relatively briefly.
- It is convenient to group the claimants' various grounds of challenge into three categories: (1) what may broadly be termed procedural issues relating to the decision to include the claimant organisations in the draft Order and the making of the Order itself, in particular the contention that the Secretary of State's discretion is insufficiently circumscribed to meet the Convention test of "prescribed by law", that the claimants were unlawfully denied the opportunity to make representations in advance, and that it was unlawful to include 21 organisations in a single Order; (2) what may broadly be termed substantive issues concerning the justification for proscription, in particular whether proscription is "necessary in a democratic society" (especially whether it is proportionate to a legitimate aim) and whether it constitutes discriminatory treatment of the claimant organisations; and (3) issues relating to the regime of offences consequential upon proscription, in particular whether it gives rise to a disproportionate interference with the rights of the individual claimants.
- That is not a clear-cut categorisation. For example, the justification for proscription necessarily engages both "prescribed by law" and "necessary in a democratic society" and it is no doubt an over-simplification to place the first in category (1) as a procedural issue and the other in category (2) as a substantive issue. So too the justification for the regime of offences under category (3) is closely bound up with the justification for proscription under category (2). Nevertheless I think it helpful on balance to categorise the issues in this way. I also note that the PKK case concentrates on categories (1) and (3), whereas the PMOI and LeT also include category (2) as an important aspect of their claims.
- In relation to the first category, the various procedural issues, Mr Sales submits as follows:
- It is important to bear in mind that the various procedural issues raised by the claimants are presented not just as discrete points but, especially in Mr Emmerson's submissions, as a package of points in support of the broad proposition that there was a failure to provide the very high level of procedural protection required in the case of an Order giving rise to such serious interferences with Convention rights. In my view that broad proposition is arguable, whatever reservations one may have about certain of the individual points.
- As to the individual points themselves, I think it arguable that the "prescribed by law" requirement applies to the original decision of the Secretary of State to include the organisations in the draft Order rather than to the terms of the draft Order itself, even though proscription only takes effect through the terms of the Order and following Parliamentary approval. The decision of the US Court of Appeals in National Council of Resistance of Iran v. Department of State provides some support to the argument that the claimants ought to have been given an opportunity to make representations in advance, though there are important differences both in broad constitutional context and in the specific legislative context (including the absence in that case of any equivalent to the right to apply ex post for deproscription and the right of appeal to POAC). The specific argument that the Secretary of State has no power to include more than one organisation in a single Order is particularly difficult, but the fact that so many organisations were included in an Order which Parliament had so little opportunity to scrutinise can still be deployed as part of the overall case that sufficient procedural guarantees were lacking.
- So far as concerns the second category of issues, i.e. whether proscription was "necessary in a democratic society" and was non-discriminatory, Mr Sales submits:
- It seems to me that for the purposes of arguability these issues must be considered on the basis of the evidence at present before the court and without regard to any further evidence, possibly including sensitive intelligence information, that may be available to the Secretary of State in support of the proscription of the claimant organisations. On that basis I am prepared to accept that the PMOI and LeT have an arguable case, given in particular (i) what is asserted in their evidence about the limited aims and activities of their organisations and (ii) the very serious consequences of proscription for rights as important as those of free speech and free assembly. Whether it is a case properly considered by the Administrative Court is a very different question, to which I shall turn in a moment.
- As regards the third category, the challenge to the regime of penalties, Mr Sales submits inter alia that:
- In my view those points do not meet the real thrust of the challenge to the regime of penalties, which is that the circumstances relied on for the proscription of the claimant organisations cannot justify such serious interferences with the Convention rights of the individual claimants, notably the chilling effect on free speech. Again it seems to me that the issue must be considered at this stage on the basis of the evidence at present before the court. On that basis I consider the claim to be arguable, especially having regard to the points made by Mr Emmerson by reference to Surek.
- The next, and to my mind the most important, question for consideration is whether it is appropriate for the various challenges to proceed by way of judicial review. For the Secretary of State, Mr Sales submits in essence that permission should be refused because POAC can and should determine the substantive issues raised and is the appropriate forum for that purpose. He has an alternative, fall-back position that judicial review should be allowed to proceed on individual procedural issues but not on issues that depend on an assessment of the underlying facts. Counsel for the claimants, on the other hand, submit that POAC cannot review the specific decisions under challenge, cannot consider the full grounds that the claimants wish to raise and cannot give the remedies they seek. By contrast, the Administrative Court can consider the entirety of the claims and can grant the full range of relief and is therefore the appropriate forum.
- It is common ground that the decision is discretionary. The court's jurisdiction is not excluded by the 2000 Act, by contrast with the position under s.30 of the Anti-terrorism, Crime and Security Act 2001 where certain human rights issues in the field of immigration can be questioned in legal proceedings only before the Special Immigration Appeals Commission.
- Mr Sales points to statements of principle to the effect that judicial review is a remedy of last resort and that judicial review will not normally be allowed where there is an alternative remedy by way of appeal (see e.g. R v. Panel on Take-overs and Mergers, ex p. Guinness Plc [1990] 1 QB 146 at 177E-178A and R v. Chief Constable of Merseyside Police, ex p. Calveley [1986] QB 424). He also relies, by way of analogy, on statements in R v. DPP, ex p. Kebilene [2000] 2 AC 326 and R (Pretty) v. DPP [2002] 1 All ER 1 to the broad effect that satellite litigation by way of judicial review is to be avoided in relation to issues arising in the context of criminal proceedings. The same principle, he submits, applies in relation to issues that have been or could be raised in proceedings before POAC.
- The claimants' counsel, in particular Mr Rabinder Singh QC who presented the PMOI's main submissions on this part of the case, submits that the true principle is that an alternative procedure should be exhausted first if it is at least as extensive as judicial review (see generally the discussion at paras 20-018 to 20-021 of de Smith, Woolf and Jowell, "Judicial Review of Administrative Action"), that one potential exception is where the ground of challenge is based on procedural fairness (ex p. Guinness at 184G-185A) and that where the suggested alternative forum cannot consider the entirety of a complaint which can be raised by way of judicial review, the court should entertain a claim for judicial review (R v. Inland Revenue Commissioners, ex p. Mead [1993] 1 All ER 772 at 781-2).
- All such statements of principle and illustrations of their application provide helpful guidance, but an exercise of discretion in a matter of this kind depends very much upon the particular subject-matter and context of the claim.
- It is plain that Parliament, although not seeking to exclude the possibility of judicial review, intended POAC to be the forum of first resort for the determination of claims relating to the lawfulness of proscription under the 2000 Act. The procedure established for challenging proscription, whether by inclusion in Schedule 2 as originally enacted or by subsequent addition to the list by means of an order under s.3, is an application to the Secretary of State for removal from the list and an appeal to POAC if the application is refused, with a further avenue of appeal to the Court of Appeal on a question of law.
- POAC is, as Mr Sales submits, a specialist tribunal with procedures designed specifically to deal with the determination of claims relating to proscription, a context heavily laden with issues of national security: cf. the observations of Lord Steyn in Secretary of State for the Home Department v. Rehman [2001] 3 WLR 877 at 888-9, para 30, in relation to the equivalent composition and procedures of the Special Immigration Appeals Commission under the Special Immigration Appeals Commission Act 1997 (though POAC and SIAC do not have an identical status). The special advocate procedure and the existence of extensive powers in relation to the reception of evidence, including otherwise non-disclosable evidence, place POAC at a clear advantage over the Administrative Court in such an area. In many respects the Administrative Court might be able to devise something equivalent: Lord Lester referred to the observation of the Strasbourg Court at paragraph 78 of the judgment in Tinnelly & Sons Ltd. & Others v. United Kingdom (1998) 27 EHHR 249, that "in other contexts it has been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice". But it would be far less satisfactory to go down that route than to utilise the POAC procedure already carefully formulated for the purpose.
- Moreover proceedings before POAC are expressly excluded from the prohibition on the disclosure of intercepted communications, potentially a very important area of evidence; and although it was submitted for the claimants that the same or a similar result could be achieved in the Administrative Court by a Convention-compliant construction of the Regulation of Investigatory Powers Act 2000, in particular the power under s.18(7)-(8) to order disclosure to a judge of the High Court, this is at best very uncertain and would again be a less satisfactory route than reliance on the clear and general exception under s.18(1)(f) in respect of any proceedings before POAC or any proceedings arising out of proceedings before POAC.
- POAC has also been designated as the appropriate tribunal for the purposes of s.7 of the Human Rights Act in relation to proceedings against the Secretary of State in respect of a refusal to deproscribe.
- All those considerations tell strongly in favour of POAC being the appropriate tribunal for consideration of issues falling within what I have previously termed category (2), namely whether proscription was necessary in a democratic society and whether it was non-discriminatory. Those are important parts of the PMOI and LeT claims. They depend heavily on a scrutiny of all the evidence, including any sensitive intelligence information, concerning the aims and activities of the organisations concerned and a comparison between them and other organisations proscribed or not proscribed. I recognise that POAC's appellate jurisdiction relates not to the original proscription but to a refusal to deproscribe, whereas by these proceedings the claimants challenge the original decision to proscribe. But in relation to these substantive issues, at least, I do not think that anything turns on that point. The issues are materially the same whether they are raised in the context of the original proscription or in the context of a refusal to deproscribe. In the case of the PMOI and the LeT, where there have been applications to deproscribe and appeals have been lodged with POAC in respect of the refusal to deproscribe, the issues are already before POAC in materially the same form as they are sought to be raised in this court, as is apparent from a comparison between the written cases in the two fora. If the claimants' arguments are well founded, they will succeed before POAC or on appeal from POAC and this will result in their deproscription. Indeed, it is asserted in the PMOI's amended claim form that "[h]ad the Secretary of State acceded to the Claimants' application it would have been unnecessary to bring legal proceedings of any kind" (para 90). If, therefore, the substantive issues stood alone, there would to my mind be no question but that POAC is the appropriate forum and permission to apply for judicial review should be refused.
- The problems arise out of the fact that such issues do not stand alone. The PMOI and LeT claimants also raise issues falling within what I have previously termed category (1), i.e. a procedural challenge to the original decision to include the organisations in the draft Order and to the Order itself. Moreover the PKK claimants have not even raised issues within category (2) and have not themselves sought deproscription or appealed to POAC, but have focused their challenge, so far as the proscription of the PKK is concerned, on the broad submission that the original decision and Order are vitiated by a failure to observe the procedural guarantees required by the Convention.
- In my view it would be possible for those procedural issues, taken by themselves, to be determined in the Administrative Court as effectively as in POAC. Moreover the natural targets of any challenge on those grounds are the original decision and Order, which lie within the jurisdiction of the Administrative Court but not of POAC. If there was a procedural defect as alleged, it occurred at that original stage and not at the stage of the subsequent refusal to deproscribe; and it would generally be considered artificial and inappropriate to challenge a subsequent decision on grounds relating to a defect in the original decision.
- The present context strikes me, however, as exceptional. The legislative intention is in my view that challenges to an organisation's presence in the list of proscribed organisations should be brought by way of an application for deproscription and appeal to POAC. It is possible to give effect to that legislative intention even in relation to a challenge based on procedural defects vitiating the original decision to proscribe. That is because, as Mr Sales submits, the Secretary of State can be requested to deproscribe on the basis that the original proscription was unlawful on procedural as well as substantive grounds; and if the Secretary of State refuses to deproscribe, an appeal can be brought on the basis that he has erred in law and/or acted in breach of the claimants' Convention rights in so refusing. Mr Emmerson expressed the concern that the Secretary of State might be able to avoid any appealable error by expressing no view one way or the other on the lawfulness of the original proscription. Whatever the theoretical merit of that argument, I cannot see this happening in practice, given the Secretary of State's stance that all matters are more appropriately dealt with on appeal to POAC rather than by way of judicial review. It would be extraordinary if the Secretary of State were to adopt a course that threw the claimants back onto judicial review as the only means of obtaining an effective remedy, the very thing that the Secretary of State seeks so strenuously to avoid.
- If the various aspects of the procedural challenge to the original decision can be raised in this way before POAC on an appeal from a refusal to deproscribe, as I think they can, one comes back to whether that is the more appropriate course than to allow a direct challenge to the original decision by way of judicial review. In my judgment it is. That applies with particular force to the PMOI and LeT, since it is much better that their challenge to proscription on substantive grounds be determined by POAC and there is an obvious advantage in all issues being determined by the same tribunal (especially given the inevitable existence of a degree of overlap between what I have termed the substantive and the procedural issues). It is less obvious in the case of the PKK, where there are no proceedings before POAC and the procedural grounds advanced in relation to proscription could all be dealt with as satisfactorily by the Administrative Court. Since, however, POAC is intended to be the forum of first resort and is the appropriate forum for the PMOI and LeT claims, and since there is a heavy overlap between PKK's procedural grounds and the procedural grounds advanced by the PMOI and LeT, POAC is also in my view the appropriate forum for the PKK claim. It is better for all these matters to be determined by POAC, with an appeal if necessary to the Court of Appeal on questions of law, than to allow the claims to be spread between two jurisdictions or to allow the entirety of the claims to proceed in the Administrative Court. As already mentioned, it is still open to the PKK to go down the POAC route even though it has not yet done so.
- In considering the appropriateness of POAC as a forum for issues relating to proscription/deproscription, I have taken into account the fact that there is no material difference between POAC and the Administrative Court in terms of the legal principles to be applied: by s.5(3) of the 2000 Act, POAC is required to allow an appeal if it considers that the decision to refuse to deproscribe was flawed "when considered in the light of the principles applicable on an application for judicial review". I see no reason why POAC should be any less able than the Administrative Court to provide effective scrutiny of the matters under challenge.
- I have also taken into account, however, that there is a difference as regards available remedies. The first material difference is that, unlike the Administrative Court, POAC has no power to quash the original decision or Order. By s.5(4)-(5), it may make an order to which the Secretary of State must give effect by means of a further Order removing the organisation from the list in Schedule 2. This means that the proscription remains valid as from the date when the original Order came into effect until the date of the further Order removing the organisation from the list. That might be relevant if any of the claimants were subject to sanctions dependent upon the validity of the proscription in the interim period (though account would have to be taken of the mitigating effect of s.7). I do not think, however, that this difference in the form of order available to POAC as compared with the Administrative Court would have any practical consequence for the claimants. In particular, I do not think that it would affect the substance of their damages claims, to which I refer below.
- The second difference as regards available relief is that POAC does not have the power to grant a declaration of incompatibility under s.4 of the Human Rights Act. Such a declaration is sought by the claimants in the alternative to their arguments that proscription is unlawful under the existing legislation when construed compatibly with the Convention. In my judgment, however, POAC's lack of such a power does not render the POAC procedure inappropriate, since there exists an avenue of appeal to the Court of Appeal on a point of law and the Court of Appeal does have such a power. The fact that a declaration of incompatibility cannot be made by an inferior tribunal, but only on appeal to the High Court or Court of Appeal, does not generally render proceedings before the inferior tribunal inappropriate or render an application for judicial review appropriate. The appropriate course is still generally to pursue the proceedings before the inferior tribunal and then on appeal to the High Court or Court of Appeal, rather than to apply for judicial review. An obvious example is that of criminal proceedings in the Crown Court, where a declaration of incompatibility is available only on appeal to the Court of Appeal but the general appropriateness of pursuing all issues in the criminal proceedings instead of applying for judicial review has been stressed in Kebilene and in R (Pretty) v. DPP. Thus in the PMOI and LeT appeals to POAC the incompatibility arguments have properly been advanced with a view to seeking declarations from the Court of Appeal on a further appeal if that becomes necessary.
- The third difference is that POAC does not have the power to award damages whereas in the present proceedings the claimants, by late amendments, have claimed damages pursuant to s.8 of the Human Rights Act. I do not regard this as telling significantly in favour of the grant of permission for the claims to proceed by way of judicial review. That would be to allow the tail to wag the dog. A claim for damages can properly be made as part of an otherwise appropriate claim for judicial review, but is not in itself a good reason for permitting judicial review. In practice, where there is a claim for damages as part of an otherwise appropriate claim for judicial review, the claim for damages would normally be left over to be dealt with as a discrete issue, if still relevant, after the main issues of public law had been determined. Even if still dealt with under CPR Part 54, rather than transferred out of the Administrative Court, it would still generally be subject to directions bringing it broadly into line with a damages claim commenced in the normal way. Thus there is no particular reason why the damages claim should proceed by way of judicial review and the claimants would be under no real disadvantage in relation to this part of their claim if they had to bring a separate claim for damages following a successful appeal to POAC for deproscription. Although s.7(5) of the Human Rights Act lays down a basic time limit of one year for the bringing of such a claim, a longer period is permitted where considered equitable and there would be an overwhelming case for allowing a longer period if matters got that far. (In the circumstances I think it unnecessary to decide on a further submission by Mr Sales, that by virtue of the designation of POAC under s.7 of the Human Rights Act, the claimants have no right to bring claims for damages in the High Court until after the proscription issue has been resolved by POAC.)
- A separate issue arises in relation to the challenge to the regime of penalties under ss.11-19 of the 2000 Act, a point again highlighted by the formulation of the PKK claim. The claimants put the challenge on the basis that the statutory regime infringes their Convention rights even in a case where proscription is lawful. They submit that POAC plainly lacks jurisdiction on that issue and that the Administrative Court must be the appropriate forum, especially given that that a declaration of incompatibility is sought.
- In my judgment, however, this issue is intimately bound up with those that I have already held appropriate for determination by POAC. The offences under s.11-13 are all direct consequences of proscription. The offences under ss.15-19 are not limited to proscribed organisations, but their true significance for the claimants appears to lie in the definitions in s.14 which bring the resources of a proscribed organisation within the definition of "terrorist property" and provide that action "for the purposes of terrorism" includes action taken for the benefit of a proscribed organisation. Thus the case advanced is in practice concerned with proscription and the consequences of proscription rather than with the possible ambit of ss.15-19 in cases unconnected with a proscribed organisation. It is for that reason that the issues are intimately bound up with those to be determined by POAC. The statutory regime relevant to proscribed organisations must be examined as a whole. The circumstances either warrant the inclusion of an organisation within that regime, taken as a whole, or they do not. There is no half-way house. It follows that in order to determine whether proscription is proportionate, POAC will have to have careful regard to the consequences of proscription, in particular the consequential offences. The fact that proscription gives rise to such a serious interference with the rights of an organisation and its supporters means that a correspondingly more compelling justification for the proscription will have to be advanced.
- That is not a complete answer to the claimants' case on this issue. It cannot be right, as Mr Sales appeared at one point to submit, that the existence of even one case where the regime of criminal sanctions would be capable of producing a disproportionate consequence would be sufficient to render proscription disproportionate and unlawful. It must be possible in principle for proscription to be justified but for the regime of offences nonetheless to operate in a particular case in a way that infringes an individual's Convention rights. Moreover cases such as Dudgeon v. United Kingdom (1981) 4 EHRR 149 and Norris v. Ireland (1991) 13 EHHR 186 show that the maintenance in force of legislation containing criminal prohibitions can constitute in itself a continuing interference with Convention rights and that individuals affected by it may be entitled to challenge it without waiting to be prosecuted for an offence. As Mr Emmerson put it, the concern in the present case is with the self-censorship required in order to avoid prosecution, rather than with an actual prosecution; and it is very unsatisfactory if someone who wishes to engage in free speech has to take the risk of committing a criminal offence and asserting Convention rights in defence, rather than being able to challenge the legislation in the first place for interfering with his right to free speech.
- Nevertheless I am not persuaded that I should allow the challenge to the regime of penalties to proceed in the form of the present claim for judicial review. In my view the question whether the regime of offences consequential upon a lawful proscription gives rise to an unjustified interference with an individual's Convention rights needs to be considered on the particular facts of an individual case as and when it arises. It should not be dealt with as an abstract or generalised issue. Whether there is such an infringement will depend on all the circumstances of the individual case. Alternatively, any challenge should at the very least await the outcome of the appeals to POAC. If the appeals succeed and the claimant organisations are deproscribed, the issue concerning penalties will fall away. If they do not succeed, then consideration could be given to claims advanced at that time on the basis of the circumstances then prevailing. Further, it is better that there should be fresh claims at the right time, rather than adjourning the permission applications in respect of the relevant parts of the present claims.
- Accordingly I take the view that it would not be appropriate to allow any of the present claims for judicial review to proceed. Most of the issues can and should be canvassed before POAC on an appeal under s.5, and thereafter as necessary in the Court of Appeal on a further appeal on a question of law. To the extent that issues cannot be canvassed in that way, it is inappropriate to allow them to be canvassed now by way of judicial review. They should at least await a determination by POAC of those issues that POAC can deal with. In my view to require the claimants to proceed in this way is to meet the requirement to provide an effective remedy for breach of Convention rights.
- On behalf of the Secretary of State, Mr Sales submits that permission should be refused in any event on grounds of delay both in the case of the PMOI and in the case of the LeT. PMOI's claim was lodged in October 2001, well over three months from the date of the Secretary of State's decision to lay the draft Order before Parliament, let alone the date when the 2001 Order came into force (which is the latest date when the grounds for the claim first arose). LeT's claim was lodged only in February 2002, far later still. In relation to each case it is submitted that there has been a failure to comply with the time limit laid down in CPR rule 54.5 and no sufficient reason has been advanced to justify an extension of time. It is accepted that no issue on delay arises in the case of the PKK.
- The PMOI claimants submit that they acted reasonably in seeking first to persuade the Secretary of State to remedy the position by deproscribing the PMOI, in which case legal proceedings would have been unnecessary. The LeT evidence includes an account of the steps taken between the date of proscription and the application for judicial review, but does not begin to offer a satisfactory explanation for the delay. In my judgment in neither case is there a sufficient explanation to justify an extension of time.
- In each case there is, however, a more general submission that an extension of time is justified by the importance of the issues raised. In each case it is also submitted that the claimants are suffering a continuing interference with their Convention rights and that there has therefore been no undue delay or time should be extended. The claimants would be able to rely on their Convention rights as a defence if prosecuted (cf. Boddington v. British Transport Police [1999] 2 AC 143) and should equally be able to assert their rights by judicial review without waiting to be prosecuted.
- I should mention that Mr Sales accepted that a challenge to the compatibility of the 2000 Act could be brought at any time but submitted that the substance of the challenges was to the decision to proscribe rather than against the legislation more generally. It seems to me that both are under challenge. But the argument led to an examination of cases such as R v. Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 AC 1 at 26-27, R (Pearson) v. Secretary of State for the Home Department [2001] HRLR 806 at para 6, and Rusbridger v. Attorney General [2001] EWHC Admin 529. Although the debate was interesting, in my view it does not really assist in the resolution of the issues before me at this stage.
- In any event, it is unnecessary for me in the circumstances to reach any concluded view on the issue of delay. Suffice it to state that, if and to the extent that I had been of the view that the Administrative Court was the appropriate forum for the issues raised, I doubt whether I would have refused permission on the ground of delay. Given the importance of the issues and the fact that, on this hypothesis, the PKK's claim would have proceeded in any event, I would have been disinclined to shut out the PMOI or LeT.
- For the reasons given above, permission is refused in respect of each of the three claims.
- That makes it unnecessary for me to consider a further and somewhat bold submission by Mr Sales to the effect that if I granted permission I should at the same time make a ruling against the Secretary of State on a notional application under CPR Part 24 so as to enable the Secretary of State to challenge my judgment in the Court of Appeal notwithstanding the absence of any right of appeal against the grant of permission.
Mr Justice Richards:
Statutory framework
(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purposes of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or disrupt an electronic system.
(3) The use of threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section -
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
(3) The Secretary of State may by order -
(a) add an organisation to Schedule 2;
(b) remove an organisation from that Schedule;
(c) amend that Schedule in some other way.
(4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.
(5) For the purposes of subsection (4) an organisation is concerned in terrorism if it -
(a) commits or participates in acts of terrorism,
(b) prepares for terrorism,
(c) promotes or encourages terrorism, or
(d) is otherwise concerned in terrorism.
(3) The Commission shall allow an appeal against a refusal to deproscribe an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.
(4) Where the Commission allows an appeal under this section by or in respect of an organisation, it may make an order under this subsection.
(5) Where an order is made under subsection (4) the Secretary of State shall as soon as is reasonably practicable -
(a) lay before Parliament, in accordance with section 123(4), the draft of an order under section 3(3)(b) removing the organisation from the list in Schedule 2, or
(b) make an order removing the organisation from the list in Schedule 2 in pursuance of section 123(5).
i) By s.11 a person commits an offence punishable by up to 10 years' imprisonment if he belongs or professes to belong to a proscribed organisation.
ii) By s.12 a person commits an offence punishable by up to 10 years' imprisonment if he invites support for a proscribed organisation; if he arranges, manages or assists in arranging or managing a meeting of three or more persons which he knows is to support a proscribed organisation, to further the activities of a proscribed organisation, or to be addressed by a person who belongs or professes to belong to a proscribed organisation; or if he addresses a meeting of three or more persons and the purpose of his address is to encourage support for a proscribed organisation or to further its activities.
iii) By s.13 a person in a public place commits an offence punishable by up to six months' imprisonment if he wears an item of clothing, or wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.
Factual history
The PMOI claim
In the case of Mujaheddin e Khalq, the Secretary of State believes that the nature and scale of the organisation's activities and the need to support other members of the international community in the global fight against terrorism are relevant. Having regard to the statutory criteria that applies [sic] to proscription and having considered these additional factors, the Secretary of State believes that proscription of Mujaheddin e Khalq should continue .
In reaching his decision, the Home Secretary has taken full account of the submission made on behalf of your client, including the assertion that Mujaheddin e Khalq is involved in a legitimate struggle against a repressive regime and has no choice but to resort to armed resistance. He notes too the claim that armed resistance is concentrated against military and security targets within Iran only. The Home Secretary does not accept, however, any right to resort to acts of terrorism, whatever the motivation .
The application also seeks to deny that Mujaheddin e Khalq was responsible for attacks on civilian targets and specifically denied a mortar attack on the city of Karaj. However, the Home Secretary notes that, on 10 February 2001, the day following the bomb and grenade attack in the city of Karaj, the office in Paris of the People's Mojahedin Organisation of Iran claimed that the attack was carried out by Mujaheddin e Khalq.
We therefore hold that the Secretary must afford the limited due process available to the putative foreign terrorist organization prior to the deprivation worked by designating that entity as such with its attendant consequences, unless he can make a showing of particularized need.
. We have no reason to presume that the petitioners in this particular case could have offered evidence which might have either changed the Secretary's mind or affected the adequacy of the record. However, without the due process protections we have outlined, we cannot presumed the contrary either (pages 23-24).
The PKK claim
In February 1999 the PKK's founder and leader Abdullah Ocalan was captured by Turkish security forces in Kenya. During his subsequent trial in Turkey, in June 1999, Ocalan announced a PKK ceasefire and also that the group intended to seek a peaceful resolution to its aspirations. However, although the group is not believed to have undertaken any offensive action since the ceasefire began on 29 August 1999, previous PKK ceasefires have broken down.
In the case of the PKK, the Secretary of State believes that the nature and scale of the organisation's activities; the specific threat that it poses to UK nationals overseas; the extent of the organisation's presence in the UK; and the need to support other members of the international community in the global fight against terrorism are relevant. Having regard to the statutory criteria which apply to proscription and having considered these additional factors, the Secretary of State believes that proscription of the PKK should continue .
While recognising comments that the PKK is engaged in a cease-fire, the Home Secretary believes the organisation's recent past involvement in terrorism means it falls within section 3(4) of the Terrorism Act 2000, i.e. that, notwithstanding the ceasefire, it is concerned in terrorism. The Home Secretary would add that the organisation retains its capacity for terrorist acts and has not renounced terrorism. He is aware furthermore of recent statements made by the organisation's Presidential Council and individual members of that Council hinting at a return to armed conflict. On the basis of these declarations, and other information available to him, such as knowledge of fundraising on behalf of the organisation in the United Kingdom, the Home Secretary remains satisfied that as an organisation the PKK is 'concerned in terrorism' as defined by the Terrorism Act 2000.
The LeT claim
"In reaching his decision the Home Secretary has taken full account of the submission made on behalf of your client. This includes the assertion that Lashkar e Tayyaba is not a terrorist organisation but a legitimate freedom movement. The Home Secretary does not accept, however, that any perceived right to self-determination justifies the terrorist actions of LT, or any other terrorist organisation. The Government condemns all acts of terrorism, whatever the source or motivation .
The Home Secretary has noted furthermore your client's claims in the application that Lashkar e Tayyaba is not involved in violence in the United Kingdom. He is mindful, however, that terrorist action, as defined in section 1 of the Terrorism Act 2000, includes action taken or threatened outside the United Kingdom. But he believes that fundraising and recruitment activities in support of the organisation and its activities take place within the United Kingdom. Such activities are often carried out with a view to supporting terrorist activity, whether here or abroad
. Mr Ahmed's letter of 26 March 2001 to the Home Secretary states that Lashkar e Tayyaba was not involved in the murder of 35 people in Jammu and Kashmir in March 2000. The Home Secretary is aware, however, of reports which indicate that Lashkar e Tayyaba was blamed for this attack. He remains satisfied, moreover, that the organisation has been responsible for further acts of terrorism and has noted that, since the proscription powers came into force on 29 March 2001, Lashkar e Tayyaba has continued to carry out and claim responsibility for terrorist attacks that have resulted in civilian casualties ."
Arguability
i) The contention that the discretion to proscribe is too broad to meet the Convention test of "prescribed by law" is misconceived. For the purpose of applying the test, it is necessary to look at the terms of the Order rather than of the enabling legislation, since it is the Order which engages the regime of offences under the 2000 Act and tells individuals what they may or may not do. The Order itself is highly precise, specifically naming the organisations, and meets the requirements of accessibility and foreseeability. The Convention cases relied on by the claimants concerning the need for protection against arbitrary power all relate to decisions taken by officials exercising a broad discretion conferred by legislation. Here, the relevant decision is not that of the Secretary of State under s.3 of the 2000 Act but the decision taken by Parliament in the form of its approval of the Order. Once the Order was made, the scope of the legal restrictions arising from it was clear and its future application foreseeable. As to the suggestion that there was inadequate Parliamentary scrutiny, there is nothing in the Convention case-law to suggest that any particular legislative process has to be followed in order to meet the test of "prescribed by law"; and in any event the courts do not have authority to scrutinise and criticise proceedings in Parliament.
ii) There is no express requirement under the 2000 Act to give an organisation the opportunity to make prior representations against proscription. Nor is there any general implied right to be consulted or to make objections prior to the making of legislation, whether primary or delegated (see Bates v. Lord Hailsham [1972] 1 WLR 1373), and there could be no sensible implied obligation to consult organisations such as Al-Qa'ida. Further, the Convention does not establish any formal or procedural requirements which must be met before legislation is enacted. In a case such as the present "consultation" is provided through the democratic process, i.e. the opportunity to make representations to Members of Parliament prior to the debate (as was done in practice e.g. by the PMOI).
iii) There is plainly power to include more than one organisation in a single Order. Although s.3(3) of the 2000 Act refers to "an organisation", by s.6(c) of the Interpretation Act 1978 words in the singular are taken to include the plural unless the contrary intention appears. No such contrary intention appears in the 2000 Act. If the Secretary of State was entitled to take the view that each organisation was concerned in terrorism, then it was plainly neither irrational nor otherwise unlawful for him to include them in a single Order.
iv) POAC does provide sufficient procedural guarantees and an effective remedy, notwithstanding that an appeal may arise only after the event. This is covered further below in the context of alternative remedies.
i) The restrictions are directed towards the pursuit of a legitimate aim, namely the interests of public safety and/or the interests of national security and/or the prevention of disorder or crime and/or the protection of health and morals and/or the protection of the rights and freedoms of others.
ii) The balance to be struck is between democratic society as a whole and the rights of the individual. When, as here, the government decides that it is necessary to prevent particular terrorist groups gathering support and financial aid, the decision is based on the concept that it is better for the interests of democratic society as a whole, and particularly in the United Kingdom, that such organisations do not become more powerful and that terrorism does not become seen as a legitimate tool for altering a nation's policy.
iii) The margin of appreciation to be afforded to the State (or, as I think Mr Sales would accept in a domestic context, the decision-maker's margin of discretion or margin of judgment, or the degree of deference to which the decision-maker is entitled) must be determined with due regard to the circumstances, which in the present context includes regard to the potentially serious consequences of terrorist activity and the fact that such activity threatens the collective security of the community of nations. In those circumstances the State is to be afforded a generous margin. The State is also to be afforded a wide margin because it has to strike a balance between competing Convention rights, including the rights of victims of terrorism under Articles 2, 3 and 8 of the Convention.
iv) For the purposes of considering the claim the court must assume that the organisations were concerned in terrorism and the decision to proscribe was warranted on that basis. It follows that the basis of the claim as to discrimination can only be that there are other organisations in precisely the same situation which have not been proscribed. The court is not in a position to determine that question; and in any event, in assessing whether persons are in comparable situations, the State again has a wide margin afforded to it.
v) Neither in relation to proportionality nor in relation to non-discrimination can it be said that the margin or discretionary area afforded to the State has been exceeded.
i) Each of the offences is based in law and sufficiently clearly defined.
ii) The offences under ss.11-13 operate by reference to organisations which have been proscribed, and once a particular organisation has been proscribed the requirement of legal certainty is plainly satisfied.
iii) To the extent that the point in relation to offences under ss.15-19 relates to the definition of "terrorism" in s.1, the relevant test for "prescribed by law" (which is substantially the same as the test under Article 7 of the Convention) is whether it is possible to know from the wording of the relevant provision, with the assistance of the interpretation of the courts, what acts or omissions will result in criminal liability. Since laws are of general application it is inevitable that the wording of statutes is not always precise. A State is also entitled to frame laws so that they keep pace with changing circumstances. The fact that in any case there may be a "penumbra of doubt" as to the application of a provision does not render it incompatible provided that it is sufficiently clear in the vast majority of cases. Set against this standard the definition of "terrorism" in s.1 satisfies the test. In the vast majority of cases its application will be certain and predictable.
Appropriateness of judicial review
Delay
Conclusion
MR JUSTICE RICHARDS: I am handing down the judgment in these three cases. The judgment relates to applications for permission to challenge the lawfulness of the proscription of three organisations as terrorist organisations under the Terrorism Act 2000 and to the regime of penalties laid down under that Act in relation to proscribed organisations. In each case I have held the claim to be arguable but have taken the view that judicial review is not the appropriate procedure. The right course at this stage is for the claimants to pursue appeals to the Proscribed Organisations Appeals Commission in accordance with the procedure laid down in the Terrorism Act itself and regulations made under it. These and other matters are covered more fully in the judgment handed down.
MR SALES: My Lord, notwithstanding that this was an application for permission, I do ask for the Secretary of State's costs in each of the applications. What I say about that is that it was a somewhat unusual case in terms of an application for permission because it amounted to a challenge to the intended statutory priority for the POAC regime to be the appropriate course to be followed in a case of this kind. Your Lordship has held in favour of the Secretary of State's arguments that that is the appropriate forum for seeking relief in a matter of this kind. The significance of the matter is, I apprehend, reflected in my Lord's judgment, and the fullness and detail of it. We say in substance that we had to come before the court at this stage in order to argue the point of material substance which arose at this stage, which is whether the POAC procedure or the High Court procedure should be followed. That could only be raised at this stage. We came, we argued, we won, and so we should have our costs.
MR JUSTICE RICHARDS: Thank you very much.
MR SINGH: My Lord, if I could go first on this side of the court room. My Lord, I resist the application for costs, essentially for four reasons.
The first is to start with the general position in permission applications. Your Lordship knows from paragraph 8.6 of the practice direction under Part 54 that the general position is that even where a defendant does attend an oral hearing for permission the court will not make an order for costs in its favour.
The second point I make, my Lord, is that there was, perhaps unusually in this case, no determination on the papers alone, which would of course be the norm. My recollection is that the procedural history was this -- I will stand corrected if I am wrong. In the PKK case the Secretary of State requested an oral hearing. That was then fixed, and because it had been fixed it seemed sensible, in the proper management of the litigation generally, for the other claimants also to apply to have their cases heard at the same time.
My Lord, the third point I make is that, as your Lordship has held in the detailed judgment, many of the points which the Secretary of State made, for example on the arguability of the substantive issues, have in fact been rejected, and so in that sense the claimants have won at least at the arguability stage.
The fourth and final point I make is to draw attention to the general issues of constitutional importance raised by these claims, and my Lord recognised the importance of the issues in, for example, paragraph 1 of the judgment.
MR JUSTICE RICHARDS: Thank you very much.
MR MULLER: My Lord, perhaps I can add that your Lordship himself talked about the serious interference with Convention rights in terms of the arguability part of the judgment. In my respectful submission, there is perhaps another factor that should be borne in mind, and that is that there was, on any view, a lack of clarity about how to proceed in relation to these very important issues. For any lay client looking, for example, at his particular position, and for argument's sake perhaps I can take the example of Mrs Estella Schmid, in my respectful submission, it would be wholly unjust for her to pay costs in circumstances where it was clearly a problem to identify exactly which procedure to follow, which forum to pursue, what are fundamental issues concerning human rights. If I can perhaps pray in aid one case, and that is a Privy Council case, New Zealand Marry Council & others v Attorney-General of New Zealand. Perhaps I can read out the relevant parts because it is very short.
MR JUSTICE RICHARDS: General observations about public interest litigation?
MR MULLER: Yes, but it makes a couple of other points, my Lord. First of all, that the proceedings were brought out of no motives of personal gain, but perhaps, more importantly, it says that:
"... because of the different views expressed by the members of the Court of Appeal on the issues raised in this appeal, an undesirable lack of clarity inevitably existed in the important area of the law which it was important that their Lordships examine and in the circumstances their Lordships regard it as just that there should be no order as to costs in this appeal."
I simply make the point that having regard to the complexity of these issues (inaudible) standard procedural issues but also the issues as to how in fact the Human Rights Act impacts on judicial review and also the jurisdiction relating to POAC, it was wholly reasonable for the claimants to bring this action here.
The last point I would simply make, your Lordship, is this. In relation to the PKK case, your Lordship observed that perhaps it is rather exceptional that what are, if you like, category 1 and category 3 issues should in this case be dealt with by POAC. Your Lordship commented that in fact whilst there was particular force in relation to the submissions concerning my learned friend Mr Singh's clients, and in relation to the PKK, and certainly in relation to those others connected to the PKK claim, it was less obvious that the proper forum should be POAC, and that your Lordship took an exceptional view having regard to the particular context of this case.
MR JUSTICE RICHARDS: Yes.
MS MOUNTFIELD: My Lord, essentially I repeat and adopt what my learned friends Mr Singh and Mr Muller have said, but I have one or two points to make on the facts of Mr Ahmed's case. The first is that he was an individual seeking to vindicate his own human rights but which are, on any view, matters of general public and consitutional importance and issues on which your Lordship has found the scope of the jurisdiction certainly of the Proscribed Organisations Appeal Commission certainly a difficult issue.
The second point I would like to make is that Mr Ahmed's claim being added to the two claims before the court did not, in my submission, add significantly to the length of the proceedings or to the costs incurred.
The third point that I would like to make is as to Mr Ahmed's means. Before the Proscribed Organisations Appeal Commission he had the benefit of Legal Services Commission funding because of the arguability of his case and his own very limited means. This application came before the court before the Legal Services Commission had an opportunity to determine whether or not he should get LSC funding, and for that reason the claim form was drafted pro bono and thereafter my solicitor and I were representing Mr Ahmed on a conditional fee. In a matter as serious as this it would be a matter of grave constitutional significance, and, in my submission, regret, if a person were unable to come to this court and test such a matter because of his own lack of means. So this is really a question of means and the proportionality of an application for costs from the Secretary of State on the facts of Mr Ahmed's case.
MR JUSTICE RICHARDS: Yes. Thank you. Nothing else you want to say?
MR SALES: No, my Lord.
MR JUSTICE RICHARDS: There will be no order as to costs. I take into account a number of considerations. The part 54 practice direction does provide that in general a defendant who attends an oral hearing of a permission application will not get costs. I do not attach much weight to that in this case because I recognise that the Secretary of State, in reality, had no option but to appear at the permission stage in order to advance the case that he did. Secondly, however, although the application for permission was in the event refused, the Secretary of State won on by no means all of the points that were canvassed before me. Thirdly, I regard the question of which procedure to follow as not a straightforward one and as one of real importance, and, in my judgment, the application made to this court in each of the three cases was in no way an unreasonable course for the claimants to have adopted. Finally, the general issues raised in the case are plainly ones of importance. That is a further factor to bear in mind at least at the permission stage in relation to the question of whether costs should be awarded.
MR SINGH: My Lord, I am grateful for that. I also have an application for permission to appeal against --
MR JUSTICE RICHARDS: You do not need to apply to me for that, do you?
MR SINGH: I do, my Lord, yes.
MR JUSTICE RICHARDS: Refusal of permission?
MR SINGH: Yes, my Lord.
MR JUSTICE RICHARDS: Do you not have a right under part 52 to apply to the Court of Appeal for permission to appeal against that refusal?
MR SINGH: I think not, my Lord. Even if I am wrong about that, just out of an abundance of caution I think I ought to. I had to consider this as junior counsel in the case of Eastaway, which went to the House of Lords. It is a complicated --
MR JUSTICE RICHARDS: Only once has anybody ever asked me for permission to appeal against a refusal of permission at this stage under the new rules.
MR SINGH: Yes.
MR JUSTICE RICHARDS: When I looked at it then it seemed to me that there was the right to seek permission from the Court of Appeal without having first sought permission from me. I am aware that there are cases, not too numerous but a substantial number of cases, where permission has been sought from the Court of Appeal, and even some where it has been obtained from the Court of Appeal, when I have refused permission at first instance without it ever having been suggested that there had to be an application to me first.
MR SINGH: My Lord, it may be that I am being overly cautious, but certainly my experience in the Eastaway case leads me to think that the rules do require me at least in the first instance to ask for permission to appeal. May I, out of an abundance of caution, do so. If your Lordship will hear me on that I make three very brief submissions on that.
MR JUSTICE RICHARDS: Firstly, do you have a White Book to hand?
MR SINGH: My Lord, we have, yes.
MR JUSTICE RICHARDS: Can I borrow it while you are making your submissions.
MR SINGH: I think it is part 52 rule 15 which governs permission to appeal.
MR JUSTICE RICHARDS: Yes. 15(1):
"Where permission to apply for judicial review has been refused at a hearing of the High Court the person seeking that permission may apply to the Court of Appeal for permission to appeal."
No suggestion that there has to be a prior application to this court.
MR SINGH: My Lord, I do see that. Certainly on our side in Eastaway that is exactly what we thought. We lost in the House of Lords - I have to say on a different point, it was really on the question of whether re Poh was still good law, and the House of Lords was invited to depart from the decision in re Poh and declined to do so.
MR JUSTICE RICHARDS: That is a different situation because this turns very much on construction of the specific rule governing appeals to the Court of Appeal.
MR SINGH: That is right. I am nevertheless concerned, my Lord. Your Lordship may well be correct, and of course I shall defer to my Lord's opinion on this.
MR JUSTICE RICHARDS: I am sure you will not.
MR SINGH: Can I just briefly make three points?
MR JUSTICE RICHARDS: Certainly.
MR SINGH: The first is the importance of the issues, which my Lord has referred to a number of times, including in the brief judgment on costs.
MR JUSTICE RICHARDS: Yes.
MR SINGH: The second is that the principles on which the court should exercise its discretion about alternative forum are not straightforward, as my Lord again has just mentioned in the judgment, particularly in this case where my Lord recognised at paragraph 82 that whatever the general principles might be this case was "exceptional". Thirdly, my Lord, we submit that it is at least arguable that your Lordship's judgment is wrong to say that in individual cases one has to wait to test the penalties point. In our submission, on the Convention case law, for example relating to victim status, cases like Dudgeon & others, it is not necessary for someone who feels that their human rights are currently being violated, particularly in the free speech (inaudible) for them to await the outcome of any proceedings against them individually.
MR JUSTICE RICHARDS: Yes, I fully understand why you advance the arguability of that point as a basis for taking issue with my judgment. Nonetheless, it seems to me that given that we are concerned with the permission stage, if, for any reason, you do need permission for me, the right course is for me to refuse you permission, which then leaves you free to pursue the application for permission in the Court of Appeal in the ordinary way.
MR SINGH: Very well.
MR JUSTICE RICHARDS: That is what I propose to do.
MR SINGH: I understand.
MR MULLER: My Lord, I also ask for permission to appeal.
MR JUSTICE RICHARDS: For once you are not adopting the position of the others.
MS MOUNTFIELD: I am, my Lord. I will also adopt the same course and ask for permission to appeal.
MR JUSTICE RICHARDS: In that case should permission be required from me, and I am firmly of the view that it is not, it is refused. You are free, in any event, to go to the Court of Appeal under part 52, rule 15.
MS MOUNTFIELD: I am grateful, my Lord.
MR JUSTICE RICHARDS: Thank you.
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