UKSC 60
On appeal from:  EWCA Civ 199
R (on the application of Lord Carlile of Berriew QC and others) (Appellants)
Secretary of State for the Home Department (Respondent)
Lord Pannick QC
(Instructed by Masoud Zabeti, Mishcon de Reya)
James Eadie QC
(Instructed by Nicola Morton-Wright, Treasury Solicitors)
"The exclusion of Mrs Rajavi in 1997 pre-dates, and was not linked to, the proscription of the People's Mojahedin Organisation of Iran (PMOI). The de-proscription of this organisation therefore has no direct bearing on whether or not Mrs Rajavi's exclusion should be maintained, which involves wider considerations.
The power to exclude is a serious one and I do not take such decisions lightly. In taking such decisions I must ensure that I am acting reasonably, proportionately and consistently and that there is a rational connection between the exclusion and the legitimate aim being pursued."
No other reasons were given at this stage.
"Whilst it is accepted that the MeK was de-proscribed by the UK in 2008 on the basis that it could not reasonably be believed to have continued to be concerned in terrorism since June 2001, the organisation's historical activities and Mrs Rajavi's past role in them as de facto leader cannot be ignored. It is widely recognised that the MeK was actively concerned in terrorist activities between the 1970s and 2001. Acts committed by the MeK during this period include attacks on western interests. It is against this background that Mrs Rajavi was excluded from the UK in 1997, following her move to Iraq from where she had urged the MeK to 'liberate' Iran, at a time when the MeK had continued to mount terrorist attacks there. The MeK's history of terrorist violence until June 2001 and involvement in the Iran/Iraq war, where it was fighting with Iraqi forces against Iran, continues to resonate today. It has resulted in there being little support for the group among the general population in Iran, including anti-regime organisations, demonstrators and oppositionists, The FCO does not agree with Lord Carlile's own assessment that Mrs Rajavi 'leads the movement for democratic change in Iran' (para 22 of his witness statement). It assesses that the MeK is not a credible opposition group in Iran. The well-known Iranian opposition, the Green Movement, for example, has publically distanced itself from any involvement in it.
The UK has diplomatic relations with Iran. There is a British Embassy in Tehran and an Iranian Embassy in London. The UK has a strong interest in working with Iran on major policy issues including nuclear counter-proliferation, wider issues in the Middle East and human rights. Cooperation between both countries on issues of mutual importance also include reciprocal visa services (both diplomatic and public), consular services and cultural/educational exchanges.
However, UK interests are affected by difficulties in UK-Iran bilateral relations. The Iranian regime perceives that negative intent lies behind the UK Government's actions and statements. Any attempt at positive engagement by the UK is also viewed with scepticism. Anti-UK rhetoric by the Iranian authorities is frequent and both the President and the Iranian Parliament are particularly vocal in expressing their condemnation of the UK on a range of matters. This includes the perception that the UK is supportive of anti-Iranian extremist activities, including the sort historically carried out by the MeK. The 2008 de-proscription of the MeK led to serious political protests from the Iranian authorities and demonstrations outside the British Embassy in Tehran, particularly as the MeK remains proscribed in Iran. The Iranian authorities believe that the de-proscription of the MeK in the UK was politically motivated, notwithstanding attempts to explain otherwise.
Similarly, the lifting of Mrs Rajavi's exclusion would also be seen by the Iranians as a deliberate political move against Iran, and, it is assessed, would have a wide-ranging negative impact on UK interests and day-to-day relations, as well as on the major policy areas such as nuclear counter-proliferation, human rights and wider issues in the Middle East. It may also result in accusations, however unjustified, of double standards in respect of the condemnation of terrorism. Any deterioration in relations would also be likely to impact on FCO efforts to replace their Ambassador to Tehran and an Iranian Ambassador in London. In short, it is assessed that lifting the exclusion would cause significant damage to the UK's interests in relation to Iran and the UK's ability to engage with Iran on wider and crucial objectives.
Whilst Mrs Rajavi is able to travel to other European Countries (in particular by virtue of the fact that she is resident in France), the particular nature of the UK-Iran bilateral relationship is such that a particularly strong reaction is expected if her exclusion is lifted. The presence of a British Embassy in Tehran means that staff there are particularly vulnerable to anti-Western sentiment in general and anti-UK sentiment in particular. There is substantial concern that if bilateral relations were to deteriorate as a consequence of the lifting of the exclusion order, there could be reprisals that put British nationals at risk and make further consular cooperation even more problematic. Historically, the Iranian Regime has actively targeted the British Embassy and staff members in Tehran. Even when tensions periodically ease, UK based staff members' access to Iranian officials and information from the authorities has been difficult. Demonstrations outside the Embassy have included damage to property, invasion of compounds and restriction of staff movement due to the fears for personal safety. There have also been cases where British nationals have been held in detention for long periods, often on spurious charges and sometimes without consular access being granted. As Iran moves into a period of electoral activity once again, the Iranian regime is likely to direct accusations at the UK should there be any instability and a ramping up of rhetoric may also provoke an uncontrolled public reaction.
When weighed against the serious potential effects of lifting the exclusion on the UK's interests in relation to Iran, the Secretary of State has concluded that the damage to the public interest significantly outweighs any interference with Mrs Rajavi's ability to express her views as President-elect of the NCRI and with the Parliamentarians' ability to meet her in person in London, particularly in view of the fact that Mrs Rajavi has many alternative means at her disposal for achieving these aims (e.g. meeting in France or a third country, or contact by video-link or other media).
While it is argued by the claimants that there is an urgent need to discuss the future of Camp Ashraf with her, the Secretary of State does not consider that the desire of the original claimants to meet with Mrs Rajavi in London (as opposed to elsewhere, or by other media) is of itself of such importance that the future of Camp Ashraf will be materially affected if the exclusion is not lifted. That issue is considered ultimately to be for the sovereign government of Iraq and the leadership of Camp Ashraf to resolve; while debate about its future is acknowledged to be of value, there are acceptable means by which that debate can be continued even absent Mrs Rajavi's physical presence in the United Kingdom.
In light of all the available evidence, the Secretary of State has decided that Mrs Rajavi's exclusion from the UK must be maintained, is justified on foreign policy grounds and is proportionate to any limited interference with either her right of freedom of expression, or that of the Parliamentarians."
"The lifting of Mrs Rajavi's exclusion would be interpreted in Iran by both the regime and the people as a demonstration of UK support for what continues to be perceived as a terrorist organisation hostile to Iran (the MeK remains an illegal organisation in Iran).
Iran continues to regard Mrs Rajavi as the leader of a terrorist organisation and often cites the POAC judgment, which removed the MeK from the UK's list of proscribed organisations, as evidence of UK support for terrorism.
The complicity of the Iranian regime in the invasion of both UK diplomatic compounds in Tehran on 29 November 2011 clearly demonstrated that the UK is the prime target in Iran for anti-western sentiment in the absence of US and Israeli embassies (a view which would be supported by almost any impartial academic or commentator).
Following the events of 29 November 2011, the lifting of Mrs Rajavi's exclusion from the UK could also be perceived by Iran as a purposeful political response to the 29 November attack on our Embassy, increasing the likelihood of an adverse Iranian response.
The case for exclusion is not based purely on foreign policy grounds but also on grounds of UK security, especially the safety of HMG staff in Iran (there remain over one hundred local employees in Iran), the protection of UK assets that remain in Iran, and the security of UK personnel in the region. The assessment of risk has increased since the 29 November attack as Iran has demonstrated that it is prepared to sanction actions that breach international law.
The Iranian regime would seek to respond to the lifting of the exclusion either by targeting our interests in Tehran, putting our local staff at risk, and/or the potential shift of risk to British interests and properties outside Iran which could now bear the brunt of any retaliatory action against the UK, both within and outside the region.
Having carefully considered all the available evidence, the Secretary of State has decided that the decision of 25 August 2011 to maintain Mrs Rajavi's exclusion from the UK must be maintained and defended as it is justified on grounds including concerns about the welfare of British personnel and interests overseas and is proportionate to any limited interference with either her own or the relevant Parliamentarians' human rights or right to freedom of expression."
(1) The United Kingdom's relations with Iran are described by Mr O'Flaherty as "fragile yet imperative". Historically, the United Kingdom has had a more difficult relationship with Iran than other countries have, which still affect the way that it is perceived there. Statements hostile to the United Kingdom are frequently made by prominent public figures in Iran in the Iranian Parliament and elsewhere. The United States and Israel are also the subject of "particularly hostile rhetoric", but of these three states the United Kingdom is the only one which maintains an Embassy in Tehran. Consequently, the British Embassy has for some years been the principal target for anti-western feeling in Tehran. Conditions there are difficult. Access by British diplomats to Iranian officials has been limited even at the best of times. The ramping up of rhetoric is liable to aggravate the situation at any time, provoking "uncontrolled local reactions". Locally engaged staff have been harassed and detained. Some have been bullied into leaving their employment. Acid bombs have been thrown into the Embassy compound.
(2) Although the United Kingdom recognises that MeK is no longer a terrorist organisation, this is not accepted in Iran, where it remains an illegal organisation. Moreover, quite apart from its current activities (or perceived activities), MeK's past support for terrorism in Iran and its armed assistance to Iran's principal regional enemy in a major war remain a significant factor in political sentiment there. The de-proscription order of 2008 was regarded in Iran as unjustified and politically motivated and provoked serious political protests from the Iranian authorities and demonstrations outside the Tehran Embassy. More recently, in November 2011, the Iranian Parliament voted to expel the newly arrived British ambassador to Iran (Dominick Chilcott) citing Britain's historic hostility to Iran and its support for terrorism, a reference to the de-proscription of MeK. There are outstanding requests by the government of Iran for assistance against alleged MeK terrorist plots. MeK is an authoritarian and hierarchical organisation and the personality of Mrs Rajavi and her husband have a symbolic significance in Iran greater than that of any other member of its leadership. The lifting of the exclusion order would be perceived in Iran as a hostile political act.
(3) The United Kingdom has a strong interest in working with Iran on major policy issues, in spite of the difficulties. These issues include nuclear counter-proliferation, wider issues in the Middle East and human rights. In particular, the United Kingdom is a prominent member of the group of western countries negotiating with Iran about nuclear proliferation. In addition to these issues, there are significant consular issues in a country where British nationals are viewed with suspicion and have been arrested and detained, often for long periods on spurious charges. There is a concern that if bilateral relations were to deteriorate, British nationals would be at risk of reprisals.
(4) Even after the downgrading of diplomatic relations since the riots of November 2011, there are about 100 locally engaged members of staff still employed there. They, together with British property in Iran, are at risk of violence in the event of retaliatory action against the United Kingdom following a further deterioration of relations. There is also concern about the safety of British nationals outside Iran following threats to promote terrorism in the west in response to perceived western hostility. These developments have led to an increase in the assessed levels of risk at a delicate stage of the bilateral relationship between the United Kingdom and Iran.
(5) The Foreign Office assesses that allowing Mrs Rajavi entry to the United Kingdom would have a "significant damaging impact on the relations between the United Kingdom and Iran which would therefore harm our wider and crucial objectives concerning Iran (such as on the nuclear issue)". In particular, it would "damage existing United Kingdom interests in relation to Iran and endanger the security, wellbeing and properties of British officials overseas." The United Kingdom might be prepared to accept a greater measure of risk as the price of supporting a viable opposition group in Iran, but its assessment is that MeK has little support within Iran and that its significance has been overstated by the claimants.
Article 10 of the Convention
"Article 10 – Freedom of expression
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The claimants' threshold argument: legal irrelevance
"The objection to the principle formulated by the Divisional Court is that it distracts attention from what, applying well-settled principles of public law, was the right question: whether, in deciding that the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted to him by Parliament."
Proportionality: the test
"…the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."
"None of this means that the court is to take over the function of the decision-maker, least of all in a case like this one. As Maurice Kay LJ observed in the Court of Appeal, this case lies in the area of foreign policy and national security which would once have been regarded as unsuitable for judicial scrutiny. The measures have been opened up to judicial scrutiny by the express terms of the Act because they may engage the rights of designated persons or others under the European Convention on Human Rights. Even so, any assessment of the rationality and proportionality of a Schedule 7 direction must recognise that the nature of the issue requires the Treasury to be allowed a large margin of judgment. It is difficult to think of a public interest as important as nuclear non-proliferation. The potential consequences of nuclear proliferation are quite serious enough to justify a precautionary approach. In addition, the question whether some measure is apt to limit the risk posed for the national interest by nuclear proliferation in a foreign country, depends on an experienced judgment of the international implications of a wide range of information, some of which may be secret. This is pre-eminently a matter for the executive. For my part, I wholly endorse the view of Lord Reed JSC that 'the making of government and legislative policy cannot be turned into a judicial process.'"
"50. … Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.
- Accordingly it seems to me that the Commission is not entitled to differ from the opinion of the Secretary of State on the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security. Mr Kadri rightly said that one man's terrorist was another man's freedom fighter. The decision as to whether support for a particular movement in a foreign country would be prejudicial to our national security may involve delicate questions of foreign policy. And, as I shall later explain, I agree with the Court of Appeal that it is artificial to try to segregate national security from foreign policy. They are all within the competence of responsible ministers and not the courts. The Commission was intended to act judicially and not, as the European Court recognised in Chahal v United Kingdom 23 EHRR 413, 468, para 127, to substitute its own opinion for that of the decision-maker on 'questions of pure expediency'.
- This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to 'defeat the purpose for which the Commission was set up': see the Commission's decision. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive… The Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited, as I shall explain, by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was 'one which no reasonable minister advising the Crown could in the circumstances reasonably have held.' Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative."
"First, the Commission is not the primary decision-maker. Not only is the decision entrusted to the Home Secretary but he also has the advantage of a wide range of advice from people with day-to-day involvement in security matters which the Commission, despite its specialist membership, cannot match. Secondly, as I have just been saying, the question at issue in this case does not involve a yes or no answer as to whether it is more likely than not that someone has done something but an evaluation of risk. In such questions an appellate body traditionally allows a considerable margin to the primary decision-maker. Even if the appellate body prefers a different view, it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide. As I have mentioned, the approach to whether the rights of an appellant under article 3 are likely to be infringed may be very different. But I think it is required in relation to the question of whether a deportation is in the interests of national security… I emphasise that the need for restraint is not based upon any limit to the Commission's appellate jurisdiction. The amplitude of that jurisdiction is emphasised by the express power to reverse the exercise of a discretion. The need for restraint flows from a common-sense recognition of the nature of the issue and the differences in the decision-making processes and responsibilities of the Home Secretary and the Commission."
"… are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."
"…the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated… The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act."
It follows, as he went on to point out, that
"…the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493 , para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532 , paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith  QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2)  1 AC 816, paras 62–67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment  2 AC 246 , para 51."
"The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make."
Nor, as a general rule, does the jurisprudence of the Strasbourg court require that administrative decisions should be subject to an appeal on the merits, as opposed to judicial review of the lawfulness of the decision-making process, especially when the decision under review is substantially based on what have been loosely called "grounds of expediency" or is made by a body with specialised experience or expertise: see Zumtobel v Austria (1994) 17 EHRR 116, para 32 (article 6); Bryan v United Kingdom (1996) 21 EHRR 342, para 44, 47; Chahal v United Kingdom (1996) 23 EHRR 413, para 127. However, the obligation of the courts to adjudicate on alleged infringements of Convention rights does mean that the traditional reticence of the courts about examining the basis for executive decisions in certain areas of policy can no longer be justified on constitutional grounds.
"Thirdly, I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General's argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called 'relative institutional competence'. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home Department v Rehman  1 AC 153, para 62, per Lord Hoffmann."
I think that there was much wisdom in the observations of Laws LJ, delivering the judgment of the Court of Appeal in R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department  QB 289, paras 146-148:
"Reasonableness and proportionality are not formal legal standards. They are substantive virtues, upon which, it may be thought, lawyers do not have the only voice: nor necessarily the wisest. Accordingly, the ascertainment of the weight to be given to the primary decision-maker's view (very often that of central government) can be elusive and problematic… The courts have a special responsibility in the field of human rights. It arises in part from the impetus of the Human Rights Act 1998, in part from the common law's jealousy in seeing that intrusive state power is always strictly justified. The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability… The court's role is to see that the Government strictly complies with all formal requirements, and rationally considers the matters it has to confront. Here, because of the subject matter, the law accords to the executive an especially broad margin of discretion."
Or, as he has more recently observed in upholding the proportionality of an interference with article 10 rights on the ground on national security in R (Miranda) v Secretary of State for the Home Department (Liberty intervening)  1 WLR 3140, para 40, where a court of review considers whether the relevant decision strikes a fair balance between the competing interests engaged,
"there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case."
A very similar principle has been applied for many years to the review of Commission decisions by the Court of Justice of the European Union. It is essentially the same point as Lord Reed made in Bank Mellat, at para 93, when he observed that even in the context of the enforcement of Convention rights, the relevant decision
"… may be based on an evaluation of complex facts, or considerations (for example, of economic or social policy, or national security) which are contestable and may be controversial. In such situations, the court has to allow room for the exercise of judgment by the executive and legislative branches of government, which bear democratic responsibility for these decisions. The making of government and legislative policy cannot be turned into a judicial process."
Application to the present case
Point (i): Underrating the value of freedom of expression
"48. In the present case, the restriction on the applicants' ability to communicate their views was limited to the entrance areas and passageways of the Galleries. It did not prevent them from obtaining individual permission from businesses within the Galleries (the manager of a hypermarket granted permission for a stand within his store on one occasion) or from distributing their leaflets on the public access paths into the area. It also remained open to them to campaign in the old town centre and to employ alternative means, such as calling door-to-door or seeking exposure in the local press, radio and television. The applicants did not deny that these other methods were available to them. Their argument, essentially, was that the easiest and most effective method of reaching people was to use the Galleries, as shown by the local authority's own information campaign (see para 21 above). The Court does not consider however that the applicants can claim that they were as a result of the refusal of the private company, Postel, effectively prevented from communicating their views to their fellow citizens…
- Balancing therefore the rights in issue and having regard to the nature and scope of the restriction in this case, the Court does not find that the Government failed in any positive obligation to protect the applicants' freedom of expression."
"Like the Government, it finds that a distinction must be drawn between the aim of the association and the means that it uses to achieve that aim. Accordingly, in the present case it might perhaps have been disproportionate to ban the association itself or its website on the basis of the above-mentioned factors… To limit the scope of the impugned restriction to the display of posters in public places was thus a way of ensuring the minimum impairment of the applicant association's rights. The Court reiterates in this connection that the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question… In view of the fact that the applicant association is able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes, the impugned measure cannot be said to be disproportionate."
"The Court notes, in this respect, the other media which remain open to the present applicant and it recalls that access to alternative media is key to the proportionality of a restriction on access to other potentially useful media… In particular, it remains open to the applicant NGO to participate in radio or TV discussion programmes of a political nature (ie broadcasts other than paid advertisements). It can also advertise on radio and television on a non-political matter if it sets up a charitable arm to do so and it has not been demonstrated that the costs of this are prohibitive. Importantly, the applicant has full access for its advertisement to non-broadcasting media including the print media, the internet (including social media), as well as to demonstrations, posters and flyers. Even if it has not been shown that the internet, with its social media, is more influential than the broadcast media in the respondent State (para 119 above), those new media remain powerful communication tools which can be of significant assistance to the applicant NGO in achieving its own objectives."
Point (ii): Overstating the risks
(1) The claimants say that the Iranian government has not reacted adversely to other European countries which have allowed Mrs Rajavi to engage without restriction with Parliamentarians and communicate her message on their soil. All of these countries have embassies in Tehran, including Switzerland which represents the interests there of the United States, regarded as Iran's principal international antagonist. The difficulty about this argument is that it fails to address the main point made in the Secretary of State's reasons and the evidence of Mr O'Flaherty, namely the long-standing and highly unusual character of Britain's relationship with Iran over a very long period. The Secretary of State's view derives considerable support from the fact that although the EU also had extensive sanctions in place against Iran in 2011 only the British Embassy was attacked. No other European country was targeted.
(2) It is said that there was no adverse reaction in Iran to Mrs Rajavi's earlier visits to the United Kingdom, before her exclusion in 1997; nor (apart from "minor demonstrations") to the de-proscription of MeK by the United Kingdom in 2008 and by other countries thereafter. Mr O'Flaherty's answer is that the factors involved have varied over the years in the course of what has generally been an unstable and deteriorating bilateral relationship, with the result that the position before 1997 is not a guide to the gravity of the threat now. Mrs Rajavi's last visit to the United Kingdom occurred seventeen years ago. The de-proscription of MeK is more recent, but the claimants' argument on this appears to be contrary to the evidence. There were demonstrations outside the Embassy after the decision to de-proscribe MeK. The fact that they were not violent is of limited relevance given the propensity of mob action to get out of control. De-proscription was certainly regarded as a political act and provoked a high level of official and public rhetoric directed against the United Kingdom, much of which was specifically based on the accusation that the United Kingdom was supporting terrorism.
(3) It is said that the Iranians are unlikely to try to acquire nuclear weapons because of the admission of Mrs Rajavi to the United Kingdom. This is not disputed, but it is hardly the right question. It is notorious that negotiations with Iran about nuclear non-proliferation have been prolonged and difficult. It is self-evident that their success is a matter of great importance to global security. It seems equally obvious that a perception of foreign hostility and an antagonistic relationship between Iran and one of the principal countries involved in the negotiations can only hinder their progress.
(4) The claimants have argued that since the United Kingdom was prepared to impose economic sanctions on Iran regardless of the consequences for the safety of its nationals and Embassy personnel, no plausible case can be founded on the comparatively minor offence that would be given to the Iranian regime by admitting Mrs Rajavi. I do not find this convincing. In the first place, the United Kingdom's sanctions were imposed under the auspices of the United Nations and the European Union in the context of a general international move against Iran provoked by its perceived desire to acquire nuclear weapons. Secondly, the value of sanctions as a diplomatic tool was considered to be great enough to warrant the risks. The Foreign Office's assessment is that by comparison concessions to Mrs Rajavi would have very little value having regard to her limited influence in Iran.
(5) There have been no overt threats to British persons or interests or to Embassy staff if Mrs Rajavi is admitted. This is correct, but there is a difference of view between the parties about whether an overt advance threat would be expected.
Point (iii): less intrusive alternatives
Lord Kerr's Judgment
The nature of the issue
Discussion of the appellants' case
The contrary view
"I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen."
(1) Is there a Convention right involved here?
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises."
This covers the right of Mrs Rajavi and of the Parliamentarians both to receive and to impart information and ideas without state interference. And they have this right regardless of frontiers.
(2) Has the right been limited or interfered with?
(3) Was the limitation or interference prescribed by law?
(4) Was it in pursuit of one of the legitimate aims permitted by the Convention in relation to the right in question?
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The claimants do not suggest that the aims of the interference do not fall within those permitted by article 10.2. They could fall within national security, public safety or the protection of the rights of others. But this is not "national security" as many would understand it. It is not suggested that Iran would attack the United Kingdom, or incite terrorist actions against the United Kingdom, or withhold co-operation with our security services, thus putting British lives at risk (as was the case in Corner House). This is not an existential threat to the life of the nation. Rather, it is a threat to the foreign policy our Government wishes to pursue. Two things are said (and, as the Administrative Court concluded, plausibly said): first, that it would be perceived by the Iranians as a hostile act, thus damaging our "fragile but imperative" relations with them; and secondly, that there would be a risk to the safety of locally engaged embassy staff and our remaining property and assets there, a risk which had become all the more plausible following the attack on our Embassy in November 2011, after we had cut off all financial ties with Iran. Knowing that the Strasbourg court generally takes a generous view of the concept, I am prepared to accept that the first risk comes within the ambit of "national security" and that (in the case of our local staff) the second comes within the protection of the rights of others.
(5) Was it "necessary in a democratic society"?
(i) Is the objective sufficiently important to justify limiting a fundamental right?
(ii) Are the measures which have been designed to meet it rationally connected to it?
(iii) Are they no more than are necessary to accomplish it?
(iv) Do they strike a fair balance between the rights of the individual and the interests of the community?
"Mrs Rajavi is the leader of the National Council of Resistance of Iran (NCRI). The NCRI acts as a parliament in exile for Iran and aims to establish a democratic secular and coalition government in Iran committed to the rule of law and respect for human rights. Until her exclusion from the United Kingdom in 1997 Mrs Rajavi was a visitor to the United Kingdom where she participated in the political and religious discourse in connection with Iran. She continues to contribute to this discourse elsewhere in the European Union. It is clear that the current regime in Iran object to her views …
Mrs Rajavi is an eminent and highly respected dissident Iranian politician. She is an expert on the status of women in Iran, the threats posed by the Iranian regime's brand of Islamic fundamentalism, the regime's export of fundamentalism and sponsorship of terrorism, its interference in the affairs of Middle Eastern nations (including the malign role played by the regime in Iraq, Afghanistan, Lebanon, Palestine, as well as North Africa) and pursuit of nuclear weapons. Since 1993, she has been the elected leader of the NCRI. As a woman and as a Muslim, she provides an important counterpoint to the religious and political beliefs expressed on behalf of the present regime in Iran. Despite the threat to her from that regime, she has continued to represent those who seek democracy, freedom of religion and respect for human rights in Iran. Although the People's Mojahedin Organization of Iran (PMOI), a constituent member of the NCRI, believes in Islam (albeit that it advocates a secular state with separation of church and state), the NCRI contains many other members of different faiths and none."
(i) Notwithstanding MeK's having been deproscribed in 2008, the organisation's historical activities and Mrs Rajavi's role in them as its de facto leader could not be ignored; its terrorist violence until June 2001 continued to resonate. Moreover, there was little support for MeK in Iran; it was not a credible opposition group.
(ii) The United Kingdom has a strong interest in working with Iran on major policy issues such as nuclear counter-proliferation and United Kingdom interests are affected by difficulties in United Kingdom -Iran bilateral relations. The United Kingdom is frequently condemned by public figures in Iran, for, among other things, its perceived support of extremist anti-Iranian activities, such as were historically carried on by MeK. When that organisation was deproscribed there were serious political protests from the Iranian authorities and demonstrations outside the British Embassy in Tehran.
(iii) The lifting of Mrs Rajavi's exclusion would be seen as a deliberate political move against Iran, just as the deproscribing of MeK was, despite attempts by British officials to explain that it was not. Although Mrs Rajavi is able to travel to other European countries, the particular nature of the United Kingdom -Iran bilateral relationship is such that a particularly strong reaction is expected if her exclusion was lifted. Reprisals might occur which would put British nationals at risk and consular co-operation, already difficult, could become more problematic.
(iv) Damage to the public interest significantly outweighs any interference with Mrs Rajavi's ability to express her views, not least because she has many alternative means of achieving this. The parliamentarians could visit France or a meeting could be held by video-link.
"4. As the Court no doubt will be aware, United Kingdom diplomatic relations with Iran have deteriorated significantly since my last witness statement. On 27 November, the Majles (Iranian Parliament) voted to expel our newly arrived Ambassador, Dominick Chilcott, citing both the United Kingdom's history of hostile policies towards Iran including its support for terrorism (ie the United Kingdom's deproscription of the MeK) and the announcement on 21 November 2011 that together with a strengthening of sanctions against Iran by Canada and the US, the United Kingdom would sever all financial ties with Iran.
- The following week, on the afternoon of 29 November 2011, a planned demonstration outside the British Embassy Tehran to mark the first anniversary of the assassination of an Iranian nuclear scientist (for which the United Kingdom is blamed by Iran together with the US and Israel), resulted in approximately two hundred regime-backed Basijj paramilitaries invading both our diplomatic compounds, including our residential compound to the north of Tehran. They set light to the Embassy building and ransacked and looted all our properties in an attack that went on for nearly six hours, with Police acquiescence. All British diplomatic staff left Iran shortly after this incident for their own safety and given the Iranian authorities' failure to protect the safety of our staff and diplomatic property, the Foreign Secretary ordered that the Iranian Embassy in London be closed and all Iranian diplomats were told to leave the United Kingdom within 48 hours. Diplomatic relations were reduced at this point to the lowest possible level, short of severing them completely."
"… once the court is satisfied that the decision was within the range of decisions that could properly be made, proportionality does not require it to go on and be satisfied that the decision is correct."
And at para 93 Arden LJ said that the court "does not second guess the merits of the substantive decision-maker in the field of foreign policy and security but looks to see whether the decision-maker had approached the matter rationally, lawfully and in a procedurally correct manner".
"In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law."
(i) The need to protect democratic values
"… Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is 'necessary in a democratic society'. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from 'democratic society'. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it."
"The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
"In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony  2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four)."
"31 The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised (as it was described in the cited passage from Matalulu v Director of Public Prosecutions)
'the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.'
Thirdly, the powers are conferred in very broad and unprescriptive terms."
The importance of the right
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market:' Abrams v United States (1919) 250 US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed (1996), pp 1078-1086."
"(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to article 10.2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. As set forth in article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (ii) The adjective 'necessary', within the meaning of article 10.2, implies the existence of a 'pressing social need'."
"In assessing the necessity of the interference in the light of the principles set out above (see paras 57-58), the court recalls that there is little scope under article 10.2 of the convention for restrictions on political speech or on debate on questions of public interest (see Wingrove v United Kingdom 1 BHRC 509 at 526 (para 58))"
"The Court recalls that the freedom of expression, enshrined in article 10.1, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. Subject to article 10.2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition Member of Parliament, like the applicant, call for the closest scrutiny on the part of the Court."
Striking the balance