The Queen (Lord Carlile of Berriew & others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Patten,Lord Justice McCombe |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] EWCA Civ 199 |
| Docket Number | Case No: C4/2012/0943 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2013 |
[2013] EWCA Civ 199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
The Rt. Lord Justice Stanley Burnton and
The Hon. Mr Justice Underhill
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Patten
and
Lord Justice Mccombe
Case No: C4/2012/0943
Miss Clare Montgomery QC and Mr Raza HusainQC (instructed by Mischon de Reya) for the Appellants
Mr James Eadie QC and Mr Robert Palmer (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 15/16 January 2013
THIS APPEAL IN OUTLINE
The principal appellants ("the Parliamentary appellants") are 15 eminent cross-party members of the House of Lords and the House of Commons. They complain about the interference with their rights caused by the Secretary of State's decisions to exclude Mrs Maryam Rajavi, the last appellant on this appeal and an eminent dissident Iranian politician now residing in Paris, from the United Kingdom. They wish to invite her to address meetings to be held in the Palace of Westminster to discuss democracy, human rights and other policy issues relating to Iran. Mrs Rajavi is willing to come to the United Kingdom.
The Secretary of State's decisions exclude Mrs Rajavi on the grounds that her entry into the United Kingdom would not be conducive to the public good. The reasons are based principally on foreign policy and security grounds, not on fears about Mrs Rajavi's conduct here.
The issue is whether, as the Divisional Court held on 16 March 2012, there is justification for this interference with the appellants' rights pursuant to article 10 of the European Convention on Human Rights ("the Convention"), particularly the Parliamentary appellants' rights to hear Mrs Rajavi in the United Kingdom. In the Divisional Court, Stanley Burnton LJ gave the leading judgment, with which Underhill J agreed.
The Secretary of State made her decisions on the recommendation of the Foreign Secretary and the Parliamentary Under-Secretary of State at the Foreign and Commonwealth Office ("FCO"). They consider that, if the Secretary of State permits Mrs Rajavi to enter the United Kingdom for the desired purpose, there will be not only representations by the government of Iran and demonstrations, but also a risk of unlawful reprisals. The present apprehended risk includes the risk of damage to the British Embassy in Tehran, and mistreatment of the Embassy's local staff.
The appellants contend that the right to freedom of expression is particularly important where those involved are members of the legislature and the meeting is to be held in the Palace of Westminster. 180 members of both Houses have indicated their intention to attend, including former Secretaries of State and members with expertise in foreign policy and security matters. It is said that there is likely to be a valuable exchange of views at such a meeting and the views may influence policy-making at the highest level on important foreign policy issues.
The appellants contend that the Divisional Court abdicated its role of considering the proportionality of the exclusion decisions with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, gave inadequate weight to the rule of law. It was perverse to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore there had been unfairness in failing to consult the Parliamentary appellants.
Outline of my decision
I conclude below that this appeal should be dismissed, and my principal reasons may be summarised as follows:
i) The Divisional Court had to balance the value of the appellants' article 10 right against the interests of national security and foreign policy on which the Secretary of State relied.
ii) The value of the Parliamentary appellants' exercise of their article 10 rights in this case is exceptionally high.
iii) The Divisional Court had to ask whether the interference with the Parliamentary appellants' rights was no more than necessary to achieve the Secretary of State's objectives. In the context of national security and foreign policy, this is achieved as the Divisional Court held by a review of the Secretary of State's decisions for rationality, legality and procedural irregularity, not by the substitution by the court of its own judgment on the merits.
iv) The Divisional Court's assessment of the decisions on these grounds cannot be faulted.
v) It therefore cannot be said that the Divisional Court abdicated its judicial function.
vi) Nor can it be said that the decisions gave inadequate weight to the rule of law.
vii) There was no unfairness in failing to consult the Parliamentary appellants.
viii) The same conclusions would apply to any Convention right which Mrs Rajavi may have.
Before I develop my reasons I will first set out the background about Mrs Rajavi, the organisations referred to below as PMOI and NCRI and relations between the United Kingdom and Iran. Then I shall summarise the reasons given by the Secretary of State for her decisions. After that, I will amplify the reasons for my decision stated in the preceding paragraph of this judgment.
Background about Mrs Rajavi
In summary, Mrs Rajavi is the leader of two groups in Iran opposed to the government there. She is the de facto leader of the People's Mojahedin Organisation of Iran ("PMOI") and the "President-elect" of the National Council for the Resistance of Iran (NCRI) since 1993. Some observers, including the US Government, treat the two organisations as the same. I shall need to give some more details about these two organisations after I have explained the work which Mrs Rajavi currently undertakes in addressing European legislatures.
As Stanley Burnton LJ explained in paragraph 3 of his judgment, Mrs Rajavi is recognised internationally as an expert on Iranian political affairs and the position of women in Islam. The Parliamentary appellants contend that, as a woman and a Muslim, she provides an important counterpoint to the religious and political beliefs of the present regime in Iran.
Mrs Rajavi has visited the United Kingdom on four previous occasions, without any consequences to British interests.
The Secretary of State had no dispute with what Mrs Rajavi might say.
Other member states of the EU have admitted Mrs Rajavi. The Divisional Court noted that Mr Alejo Vidal-Quadras, a Vice-President of the European Parliament described Mrs Rajavi as "the leading expert on Iranian affairs". The Divisional Court continued:
"She is a powerful advocate for a democratic non-sectarian government for Iran: hence the undoubted hostility to her of the present Iranian government. Mr Vidal-Quadras says of her that 'She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. …. I found Mrs Rajavi to be a true believer of gender equality and freedom of thought and religion, committed to the rule of law and a very responsible leader. She has done much to promote religious tolerance. …' "
Mrs Rajavi has attended a dozen meetings at the European Parliament, most recently in February 2012. Mr Alejo Vidal-Quadras' evidence about these meetings is directed to underscoring the value of engagement with her:
"Face to face meetings allow MEPs and their advisers to question Mrs Rajavi and spend time with her addressing a range of sensitive issues. They could not possibly do this through other means of long distance communication."
There is a considerable amount of other evidence which speaks exceptionally highly of Mrs Rajavi. For instance, Lord Carlile states in his witness statement:
"9. … Mrs Rajavi is a Muslim woman who stands for a free, democratic and secular Iran. She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. It is for these reasons that she enjoys the support of thousands of Parliamentarians around the world."
I turn next to describe the organisations with which Mrs Rajavi is connected and then summarise the evidence on the relations between the United Kingdom and Iran.
Background about PMOI and NCRI
Mrs Rajavi's role in PMOI is as Chair. She became co-Chair with her husband, Masoud Rajavi, in 1985. Mrs Rajavi was Secretary-General of the PMOI from 1989 to 1993. NCRI was founded as a movement broader than PMOI, but became and remains dominated by PMOI. PMOI is widely and correctly known by the Farsi name 'Mujahedin-e Khalq' or 'Mujahedin-e Khalq Organisation'.
From the early 1980s until 2001 or 2002, PMOI carried out violent activities directed against Iran, from 1986 principally from their base in Iraq 60 miles north of Baghdad ( Camp Ashraf). It had participated in the 1979 Islamic Revolution that replaced the Shah with a Shiite Islamist regime led by Ayatollah Khomeini. However, PMOI's ideology, described by the US State Department Country Report on Terrorism 2010 as "a blend of Marxism, feminism, and Islamism", was at odds with the post-revolutionary government and most of its original leadership was soon executed by the Khomeini regime. In 1981, its leadership and...
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