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IN THE HIGH COURT OF JUSTICE Case No:
ADMINISTRATIVE COURT
BETWEEN: THE QUEEN
on the application of
(1). PAMELA GELLER First Applicant
(2). ROBERT SPENCER Second Applicant
- and -
THE SECRETARY OF STATE FOR HOME DEPARTMENT
Respondent
______________________________________________
GROUNDS FOR JUDICIAL REVIEW
______________________________________________
Introduction
1. The Applicants, respected authors and human rights campaigners, apply
for judicial review of a decision of the Secretary of State seeking to exclude
them from the UK on the basis that their views may cause offence to
Muslims and “may lead to inter community violence” in the UK.
2. The tradition of English liberty, which runs through the rule of law and
political culture, is a deep one. It is traceable to John Milton’s
Areopagitica, published in 1644, through to Thomas Paine’s The Age of
Reason and John Stuart Mill’s On Liberty. The essence of it is best
encapsulated by Mill when he wrote: “If all mankind minus one, were of
one opinion, and only one person were of the contrary opinion, mankind
would be no more justified in silencing that one person, than he, if he had
the power, would be justified in silencing mankind”. It is with this in mind
that the Court is invited to consider the decision to exclude in the present
case.
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3. The decision to exclude is taken on the basis of two decision letters that are
dated 25/6/2013. These rely on the unacceptable behaviour policy. This lists
as unacceptable the expression of views which may lead to inter community
violence.
4. The Unacceptable Behaviours Policy is based on the so called “Prevent”
scheme designed to prevent the proliferation of terrorist ideologies in order
to prevent terrorist acts. On the Secretary of State’s construction, it in effect
permits terrorist groups to induce the Secretary of State to exclude
individuals such as the Applicants from entering the United Kingdom
merely by stating frequently that their views or websites are Islamophobic.
5. The application raises important issues. It is the first to challenge the
legality of the Government’s Unacceptable Behaviours Policy in excluding
foreign nationals. In modern times, it is the first to raise human rights
accountability of the Secretary of State for her actions in excluding US
nationals.
6. The previous cases heard include Geert Wilders v Secretary of State [2010]
Imm. A.R. 269 (a case involving an EEA national, the exclusion of a Dutch
MP who was successful in appealing the exclusion); Naike v Secretary of
State [2012] Imm. A.R. 381 (a non EEA Indian national who was
unsuccessful in overturning the ban); a more historic case called R v
Farrakhan [2002] QB 1391 (a US national excluded from the UK, where
violent protests were already taking place leading to the arrest and charge of
three members of the Nation of Islam).
7. The Applicants intended to visit the UK in order to visit the English
countryside and meet individuals here in the UK. Both Applicants intended
to lay a wreath at the site of Drummer Lee Rigby, a soldier whose brutal
murder by an Islamic extremist was televised extensively worldwide. They
intended to do so as a symbolic gesture against religious extremism and
violence. The Applicants’ exclusion has been published worldwide. The
present claims are plainly of overwhelming public importance in relation to
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issues concerning the legality of the Secretary of State’s policy, including its
construction, and impact on civil liberties. In R (Gentle) v Prime Minister
[2006] EWCA Civ 1078 at [23] the Court of Appeal granted permission to
proceed by way of judicial review on the basis of the importance of the issues
alone. The Court is invited to do the same in the present case and/or to
grant permission on the basis that the Applicants have real prospects of
success.
8. The grounds for judicial review relied upon in summary are as follows:
(i). The decision to exclude was an abuse of power. The decision to exclude
was capricious, arbitrary, and based upon an improper motive.
(ii). The decision to exclude was unlawful and/or ultra vires.
(iii). The decision was erroneous in law.
(iv). The Applicants had a legitimate expectation that they would be allowed
to enter and express their views in the UK pursuant to the government’s
“Prevent” policy. The decision to exclude was not, therefore, permissible.
(v). The decision to exclude was arrived at through a procedurally improper
manner, failed to take into account and/or weigh the relevant facts and/or
took into account irrelevant facts without further enquiry. The decision did
not take into account the Applicants’ views regarding the exclusion.
(vi). The decision was contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as
set out in schedule 1 to the Human Rights Act 1998 (“HRA”).
(vii). The decision was irrational and/or Wednesbury unreasonable.
9. The two claims are brought together, though the views expressed by each
Applicant are separate, and the decision letters are addressed separately to
each Applicant.
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10. These grounds are accompanied by evidence contained in the witness
statements of the First Claimant, Ms Pamela Geller, and Mr Robert Spencer,
the Second Applicant dated 6/9/2013. [Tab 5; and 6].
Background
(1). Ms Pamela Geller
11. The First Applicant is an internationally recognised writer and human rights
activist. She is the founder, editor and publisher of Atlas Shrugs.com. She is
the President of the American Freedom Defense Initiative (AFDI) and Stop
Islamization of America (SIOA). She has published innumerable books and
articles on the subject of Islamic extremism. She has led awareness
campaigns in relation to the same in Israel, US and the Europe. Notably, she
led the fight to protect Rifqa Bary, a former Muslim (a teenage apostate)
from Islamic extremism. She did this by preventing her from being forcibly
returned to her Muslim parents. Rifqa Bary fled from her parents in fear for
her life.
12. The First Applicant has made appearances on news media around the world.
Her articles and writings have been published in newspapers worldwide the
Guardian, the Los Angeles Times, Fox News, The Washington Times,
Haaretz, Breitbart, Human Events, The American Thinker, Newsmax,
Hudson NY, Pajamas Media, Israel National News, World Net Daily,
FrontPage magazine, New Media Journal, and Canada Free Press.
13. The First Applicant has received innumerable awards for her work including
the following:
(i). In October 2011, the United States Marine Corps presented her with the
flag flown on September 11, 2011 over Camp Leatherneck, "amid the
battlefields of Afghanistan during decisive operations against enemy forces
in Helmand Province."
(ii). The Guardian of Liberty award from the New York N.C. Federation of
Republican Women.
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(iii). The American Patriot of the Year 2013 awarded to her by the Queens
Village Republican Club.
(iv). The 2012 Liberty Award from the Independence Hall Tea Party
Association.
(v). The Annie Taylor Award for Courage in 2010 from the David Horowitz
Freedom Center.
(vi). The Queen Esther Award for Jewish Heroism awarded to her by the
Creative Zionist Coalition.
The First Applicant has published books, all of which are freely available here
in the UK, for which she has received impressive reviews including the
following:
(1). The Post-American Presidency: The Obama Administration’s
War On America. The Foreword was written by John Bolton, former US
Ambassador to the United Nations. Brad Thor, the Times best-selling author
of Foreign Influence, described this book as “Sheer brilliance”. The book has
been reviewed by other best-selling authors who have described it as “must
read”1 and an “excellent book”.2
(2). Stop the Islamization of America: A Practical Guide to the
Resistance (WND Books, September 6, 2011). This book has been
reviewed by Dr. Wafa Sultan, former Muslim and author of “A God Who
Hates”. She states “This book fills an urgent need. Pamela Geller has
brought together all her experience fighting the stealth jihad and
Islamization to create the first practical guide to stopping the spread of
Sharia and Islamic supremacism in America. Every patriot, everyone who
loves the freedom we enjoy in America, must get this book and use it to
equip themselves for the great struggle that lies ahead.” Others have
reviewed the book and described it as follows:
1 Andrew C. McCarthy, National Review legal affairs editor and bestselling author of Willful
Blindness: A Memoir of the Jihad)
2 David Horowitz, conservative activist, co-author of Destructive Generation and author of Radical Son).
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“Geller is a forceful and courageous voice, providing in this powerful book a
democratic defense to fight the stealth jihadist threat against civilization”.3
“An essential handbook for every freedom fighter.”4
It is important to note that, in this book, the First Applicant provides advice
to activists. She condemns incitement of hatred or violence as follows:
“Do not say things or chant slogans that can be construed as racist or
inciting to violence… Use your common sense: don’t say anything that
contradicts your own most cherished beliefs and principles. Remember
always that you are fighting for human rights and human dignity. This
doesn’t mean that we say, or that we believe, that we hate Muslims or want
to kill all Muslims – contrary to the mainstream media’s caricature of our
position” (pp44-5). [Tab 5, para 14, 192].
(3). Freedom or Submission: On the Dangers of Islamic
Extremism and American Complacency (E-book, Create Space
Independent Publishing Platform, April 3, 2013).
14. Contrary to the assertion in the Secretary of State’s refusal letter dated
25/6/2013 (Tab 2), the First Applicant does not operate a website called
Jihad Watch. She operates the Atlas Shrugs website. On the Atlas Shrugs
website, she has published her comments on Islam. These include the
following comments, which are readily available in the UK, but selectively
included in the refusal letter, dated 25/6/2013, in text marked bold below:
Comment 1
1. “Obama would speak only about ‘al-Qaeda.’ Al-Qaeda is a
manifestation of devout Islam. Just as Hamas, Hezb'allah, al-
Muhajiroun, The Armed Islamic Group, the Moro Islamic Liberation Front,
MILF, CAIR, ISNA, Fatah, the Muslim Brotherhood, al-Gama'a al-Islamiya,
3 – Bat Ye’or, eminent historian, author of eight books, including Eurabia: The Euro-Arab Axis; Islam and Dhimmitude: Where Civilizations Collide; The Decline of Eastern Christianity Under Islam: From Jihad to Dhimmitude; and The Dhimmi: Jews and Christians Under Islam.
4 Robert Spencer.
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the Armed Islamic Group of Algeria... It is Islam. And by refusing to name
the enemy, Obama has perpetrated yet another devastating attack on
American security.”
This quote is explained by the First Applicant, as part of her fight against
extremism, as follows in her witness statement:
“This was referring to the fact that al-Qaeda makes recruits among
peaceful Muslims and justifies its actions by appealing to Qur’anic teaching.
It presents itself as the true manifestation of devout Islam, and moderates
have as yet mounted no effective rejoinder to that. Thus for Obama to limit
the fight to al-Qaeda when other Muslim groups share the same views is
short-sighted. Muslims who genuinely reject the al-Qaeda version of Islam
need to confront al-Qaeda’s appeal to the devout much more honestly and
thoroughly than they have thus far”. [Tab 6, 196].
Comment 2
“The conquest of Israel would indeed be nothing more than the conquest of
the good. That piece of beach, that narrow strip of land, produces no oil,
gold, or any other valuable resources. It, however, holds the Jewish people.
The Islamic world knows that getting control of that tiny patch of land is
meaningless; it is getting the Jew out that will be the victory for the forces
of evil. However, if the Jew dies, the Muslims will die as well: their
survival depends on their constant jihad, because without it they will lose
the meaning and purpose of their existence. And so it goes. It is a never-
ending struggle. And it is one in which the lines are drawn quite clearly.
All decent people, all free people, whether or not they are religious, must
stand with Israel. It is a matter not only of the survival of the Jewish
people, but of the survival of all free people, and, indeed, the principle of
freedom in the world.”
The First Applicant has explained this quote in her witness statement as
follows:
“This quote was from an article… about the jihad against Israel referring to
Hamas and Hizballah. The reason for their existence is solely for the
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destruction of the Jewish State. Without that objective, they cease to exist.
As is clear from the context, the phrase “However, if the Jew dies, the
Muslims will die as well” was referring specifically and solely to the jihad
groups arrayed against Israel, not to all Muslims”. [Tab 6, 196].
(2) Mr. Robert Spencer
15. The Second Applicant is an internationally recognized author and a human
rights activist. He is the director of an organization called Jihad Watch and
Associate Director of the American Defence initiative. He wrote his first of
twelve books about Islam after the 9/11 attacks, and is currently working on
a book about the Arab Spring and its aftermath. He has since led seminars
on Islam and Jihad for official US Government bodies. These include: the
United States Central Command, United States Army Command and
General Staff College, the U.S. Army’s Asymmetric Warfare Group, the FBI,
the Joint Terrorism Task Force, and the US intelligence community. The
seminars were hosted by, among others, former FBI agent Mr. John
Guandolo and U.S. Army Colonel Herman Nordbruch.
16. The Second Applicant is widely published. His publications include the
following books, freely available in the UK, for which he has received
impressive testimonials as outlined in his witness statement: Islam
Unveiled: Disturbing Questions About the World's Fastest Growing Faith
(Encounter, 2002); Onward Muslim Soldiers: How Jihad Still Threatens
America and the West (Regnery, 2003); Inside Islam: A Guide for Catholics
(with Daniel Ali, Ascension, 2003); The Myth of Islamic Tolerance: How
Islamic Law Treats Non-Muslims (Prometheus, 2004); The Politically
Incorrect Guide to Islam (and the Crusades) (Regnery, 2005); The Truth
About Muhammad (Regnery, 2006); Religion of Peace? Why Christianity Is
and Islam Isn't (Regnery, 2007); Stealth Jihad: How Radical Islam is
Subverting America without Guns or Bombs (Regnery, 2008); The
Complete Infidel's Guide to the Koran (Regnery, 2009); The Post-American
Presidency: The Obama Administration's War On America (with Pamela
Geller, Simon & Schuster, 2010); Did Muhammad Exist? An Inquiry Into
Islam's Obscure Origins (ISI, 2012); and Not Peace But A Sword: The Great
Chasm Between Christianity and Islam (Catholic Answers, 2013).
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17. The testimonials he received are more fully stated in his witness statement,
but include the following:
1. Not Peace But a Sword. “Robert Spencer is a careful observer of
Islam and a courageous voice on behalf of Christians. In his new book,
Not Peace But a Sword, he shows Catholics how to take Islam
seriously without falling into alarmism, hatred, or bigotry. He
provides a needed corrective to the misinformation and
disinformation propagated by so many media today.” -- Scott Hahn,
author of The Lamb's Supper, Understanding the Scriptures and many
other books.
2. Did Muhammad Exist? “The great service Spencer provides goes
beyond popularizing the critical study of one of the world’s largest
religions in order to advance our knowledge and establish historical
reality”. Bruce Thornton, Research Fellow at Stanford’s Hoover
Institution and Professor of Classics and Humanities at the California
State University.
“Robert Spencer has displayed brilliant scholarship”. Bat Ye’or,
author of The Decline of Eastern Christianity under Islam.
3. The Complete Infidel’s Guide to the Koran. “For 1,400 years
Muslim leadership spread misinformation and covered up what is in
the Koran, even criminalizing exposing the truth or asking questions.
The truth is too scary for many, both Muslims and non-Muslims. I
thank Robert Spencer for bringing the truth of what is in the Koran to
non-Muslims.” — Nonie Darwish, ex-Muslim and author of Now
They Call Me Infidel.
“In an informed, sardonic antidote to the usual soft-peddling of the
Koran, he concludes that its actual contents should alarm infidels and
prompt them to defend their ‘freedom of speech, freedom of
conscience, and the legal equality of all people.’ — Daniel Pipes,
director, Middle East Forum.
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4. Stealth Jihad. “Robert Spencer makes a solid case that the major
threat to our way of life does not come solely from those radical
Islamists who embrace violence and terrorism. It also comes from
those who do not accept that they must live side-by-side on a basis of
equality with those of other faiths in a civil society and who instead
work in multiple ways toward obtaining special standing for Islam in
our society and, ultimately, toward theocracy. A vital wake-up call of
a book.” — R. James Woolsey, former director of Central
Intelligence.
5. Religion of Peace?. “Brilliantly written and argued” Ann Coulter.
“Spencer’s thought-provoking book persuasively demonstrates the
ways in which Western civilization, rooted as it is in the Judeo-
Christian tradition, is profoundly different from the model of society
dictated by Islamic sharia. Rich in its insights and analysis, this is a
book that should be read and appreciated by Christians and Jews
alike.” — Rabbi David G. Dalin, author of The Myth of Hitler’s Pope.
6. The Truth About Muhammad. “Intrepid Robert Spencer continues
his quest to dispel myths, cure ignorance, and open our eyes to hard
truths about Islam. Spencer trades platitudes for scholarship;
delusions for reality. If we are going to win ‘the War on Terror,’ we
need to know how Muhammad really lived — and why he endures as
the inspiration for global jihad. This book is a threat to ‘religion of
peace’ propaganda that lulls the West into submission. Strike a blow
for survival: buy it.” — Michelle Malkin, nationally syndicated
columnist and bestselling author of Unhinged, In Defense of
Internment, and Invasion.
18. The Court is referred to the Second Applicant’s witness statement for
further information on the Second Applicant’s published books and
reviews. [Tab 5].
19. The Second Applicant is portrayed by the Secretary of State as saying
the following:
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“‘[Islam] is a religion and is a belief system that mandates warfare
against unbelievers for the purpose for establishing a societal model
that is absolutely incompatible with Western society because media
and general government unwillingness to face the sources of
Islamic terrorism these things remain largely unknown.’” [Tab 2,
74].
20. This comment is alleged by the Secretary of State to provide a basis for
exclusion, though it did not prevent the Second Applicant from entering
the UK in 2009. As the Second Applicant explains in his witness
statement:
“This is a mangled transcription of a statement I made in the
documentary Islam: What the West Needs to Know. The Home
Office’s footnote comes from a You Tube video trying to claim that I
am responsible for murders committed by a madman in Norway
who cited me along with innumerable others in a lengthy and
incoherent document.
I filmed the interview for the documentary in Los Angeles in
summer or fall 2004. Others, including Bat Ye’or, Serge Trifkovic
and Walid Shoebat are also featured in the documentary, which is
still available for purchase at Amazon.com and elsewhere. This
video did not prevent my visit from taking place in the UK in 2009”.
[Tab 5, 107].
21. The Second Applicant, in his witness statement, then provides the
evidential basis upon which the above comments are made. He provides
detailed support for those comments in the Quran and Islamic
jurisprudence which can be, and are, used by extremists.
22. It is wholly misleading to assume that the Applicants are critical of all
Muslims. They are not. As the First Applicant puts it in her witness
statement:
“Neither Robert nor I are critical of all people who describe
themselves as Muslims. On the contrary, the first effort on which
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Spencer joined my efforts was an attempt to obtain a tombstone for
a Muslim honour killing victim, Aqsa Parvez, who had been buried
in an unmarked grave. I have come to the aid of numerous Muslims
who faced difficult situations in their families for staying from
strict adherence to Sharia. I do not oppose Islam as such and
certainly not Muslims as such; any Muslim who renounces Jihad
violence, Islamic supremacism, Islamic anti-Semitism and the
other elements of Islamic law that are at variance with universal
principles of human rights are invited to stand with us”. [Tab 6,
197].
The facts
Events leading to the exclusion
23. Drummer Lee Rigby of the Royal Regiment of Fusiliers was killed near
his army barracks in Woolwich by an Islamic extremist. The First and
Second Applicants intended to visit the UK. They intended to see the
English countryside and visit Buckingham Palace. Both intended to lay
a floral wreath at the site of Mr Rigby’s murder on Armed Forces Day as
a symbolic gesture on behalf of their country’s struggle against
extremism and terrorism.
24. Both Applicants intended to do so in the company of other freedom
activists from around the world who intended to pay their respects to
Lee Rigby, including Ashraf Ramelah, president of Voice of the Copts.
The Applicants intended to leave New York from John F. Kennedy
Airport on Thursday 27 June 2013 arriving in London on Friday June
28. They planned to leave the UK on June 30 2013.
25. Tommy Robinson and Kevin Carroll of the English Defence League
intended to participate in a charity walk. The Applicants had no
intention of participating in that walk. The Applicants intended to meet
Tommy Robinson and Kevin Carroll and others after the charity walk at
the site of the memorial to Lee Rigby.
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26. A floral arrangement was obtained in the form of US Star and Stripes.
These flowers were in fact placed at the site after the Applicants’
exclusion without any violence or public disorder.
27. Mr Robinson and Mr Carroll did undertake a charity walk. They were
peacefully arrested for attempting to walk through Tower Hamlets. The
legality of the arrest is unclear. Tower Hamlets is said to be a Muslim
area. Despite this, there was no backlash from Muslims. No real
incident of public disorder has been reported. Nevertheless, neither
Applicant had any intention of visiting Tower Hamlets.
28. Both Applicants have no previous convictions. They have no cautions,
warning or reprimands. Both condemn violence.
The exclusion
Background
The Metropolitan Police request for exclusion on 24 June
2013
29. By a letter dated 24/6/2013 addressed to the Home Secretary, the
Metropolitan Police (MP) enclosed representations seeking the
Applicants’ exclusion; it being alleged that the Applicants have been
forthright about their views about the Islamic community and have
been considered to be provocative. [Tab 5, 149].
30. The commander of the mission states that the Leader of the Council and
the Chief Executive have informed him that, if the Applicants were
“allowed to address a rally on Saturday”, they will be making cross
party and community representations to the MPS on 25/6/2013. The
identities of the Leader of the Council and the Chief Executive are not
revealed.
31. It is evident from the redacted and non-transparent representations
that the MP made an application to the Home Office to exclude the First
and Second Applicants on the basis that their visit will inflame
community tensions and may result in significant public disorder. The
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redactions themselves seek to hide the identity of those parties that the
Secretary of State does not wish to associate with in public.
32. The basis for the request for exclusion is that the Applicants are anti-
Islamic. It is said that this increases the risk of disorder, as it is likely to
augment the number of people who attend in order to oppose the EDL
event, including Muslims and pro-Palestinian groups.
33. The MP cite cases where “the policing minister” in October 2012 had to
ban a planned EDL march in Walthamstow, citing “public safety
concerns”. It cites other EDL events where it had to curtail EDL
gatherings through the deployment of the police force at expense.
The evidence against the First Applicant
34. The redacted and non-transparent submissions document dated 20
June 2013 refers to the following evidence against the First Applicant
[Tab 6, 232]:
1. The First Applicant, through the American Freedom Defense
initiative (AFDI), was responsible for a widely circulated poster
stating “in any war between the civilized man and the savage,
support the civilized man. Support Israel. Defeat Jihad” which
the US Court found “was permissible under the First
Amendment ground” [para 5].
2. The First Applicant is said to have defended the advert through the
following statement:
“The premise of my ad was that a war on innocent civilians is
savage… As long as the Palestinian Authority continues its
savage policy to foment violence, promote hatred and teach
Palestinian children to hate, the number of young Muslims
willing to blow themselves up or to slit Israeli throats will
continue to increase. That is savage. The Palestinian Authority
propaganda of Holocaust denial calls for the killing of the Jews
and glorification of bloodthirsty jihad is savage”. [para 5]
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3. Although the First Applicant’s writings “do not appear to promote
violence against Muslims”, the MP submission states that the First
Applicant “expresses views which meet the unacceptable behavior
criterion of fostering hatred which might, should she visit the UK,
lead to intercommunity violence in the UK”. [para 7].
4. It is alleged that “there is a strong possibility that moderate and
law-abiding members of the UK muslim community and other UK
citizens would find Geller’s views offensive and take strong
exception to her having a public platform”. [para 7]. This is
despite the fact that there was no evidence of or prior history of
imminent and/or uncontrolled violence.
5. It is alleged that the First Applicant’s Article 10 rights were
outweighed by “potential adverse consequences of Geller being
permitted to visit the UK in order to speak at the demonstration”.
[para 7]. The Applicants had no plans, however, to hold a
demonstration. No separate consideration is given to the First
Applicant’s rights under s.29 J of the Race and Religious Hatred
Act 2006 and/or her other convention rights.
6. It is suggested that “some individuals in the Jewish community
may object [to the exclusion – emphasis added]: either out of
direct sympathy for them (less likely) or due to a perception of
double standards (more likely)” [para 9].
35. The redacted and non-transparent case research and analysis report,
marked Annex A, upon which the above submission is based states the
following against the First Applicant [Tab 6, 237]:
1. The First Applicant is a “high profile figure in the counter jihadist
movement” and responsible for an advertising campaign in
support of Israel [page 237, 238].
2. The First Applicant states “the only good Muslim is one who
doesn’t want to commit jihad and subjugate unbelievers, doesn’t
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want to impose the sharia on non-Muslims, doesn’t want to
subjugate women, and doesn’t hate Jews” [page 240].
3. The First Applicant is opposed to burning of religious books and
“does not advocate violence” and states “Al-Qaeda is a
manifestation of devout Islam” [page 241].
4. The First Applicant “advocates defence against the spread of
extremist Islam”. [page 243].
5. The First Applicant “gives a tolerant message after her
comments have been challenged”. [page 243].
6. “Despite her attempts to explain some of these statements, there
is a strong possibility that there are Muslim and other UK
residents who would take exception to her having a public
platform to espouse her views”. [page 243].
7. The First Applicant does not meet the threshold for exclusion
under the unacceptable behaviours policy elements relating to
terrorism and serious criminal activity or provocation of others to
serious criminal acts. [Page 243].
8. The First Applicant, it is said, “as such…reaches the threshold for
exclusion from the UK under the following element of the
“unacceptable behavior policy: ‘public speaking which fosters
hatred which might lead to inter-community violence in the
UK’”. [page 243].
The evidence against the Second Applicant
36. The redacted and non-transparent submissions against the Second
Applicant dated 21/6/2013 state [Tab 5, 135]:
1. The Second Applicant is “a best-selling author and founder of the
blog Jihad Watch (a site widely criticised for being Islamophobic)
who is known for his criticism of Islam, Islamic terrorism and jihad
ideology”. [para 4].
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2. The Second Applicant is “influential and high profile”. [para 4].
3. It is said that “moderate and law abiding members of the UK Muslim
community and other UK resident would find Spencer’s view
offensive and would take strong exception to him having a public
platform to espouse his views” [para 6].
4. The Second Applicant’s writings are said to have inspired a
Norwegian terrorist Anders Breivik. [para 5].
5. The following statement made by the Second Applicant in a You Tube
interview is said to come within the exclusion under the unacceptable
behavior criteria:
“It [Islam] is a religion and is a belief system that mandates
warfare against unbelievers for the purpose of establishing a
societal model that is absolutely incompatible with Western
society because media and general government willing to face
the sources of Islamic terrorism these things remain largely
unknown”. [para 5]
6. The Second Applicant has published numerous articles and blog
postings, highlighting the threat of Islam and “some individuals in the
Jewish community may object to the exclusion either out of direct
sympathy for them (less likely) or due to a perception of double
standards (more likely)”. [para 8].
7. The Second Applicant may choose to publicize his exclusion on the
basis of his support for Israel. [para 7].
37. The redacted and non-transparent case research and analysis report on the
Second Applicant states [Tab 5, 139]:
1. The Second Applicant is “a well known American author that
includes two New York Times best sellers, and blogger known for
his criticism of Islamic terrorism, jihad, and conspiracy theories”.
[page 140]
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2. The Second Applicant’s blog is “considered to be a significant site
that opposes Jihad” and had “won the people’s choice blog award”.
[pages 140, 142].
3. The Second Applicant “is to some extent respected as a
commentator on Islam and Islamism/jihad” but is a “controversial
character”. [page 148].
4. “There are sufficient grounds to exclude the subject from the UK
under the UK policy because his published works and presence at
the EDL rally could foster hatred which might lead to inter-
community violence in the UK” (see assessment and
recommendation section, page 140).
5. In a You Tube interview the Second Applicant describes the
Norwegian terrorist as “a psychopath” and states that any Muslims
who reject war against unbelievers “I count as an ally in the defence
of freedom”. [page 144].
6. The Second Applicant has visited the UK and spoken with the First
Applicant at an event in relation to which there were “peaceful
protests against Geller and the subject [i.e. the Second Applicant] in
Stockholm in 2012”. [page 146].
7. “How he might be perceived in the Muslim community that would
appear to be the central issue here” and that “it is fair to conclude
that many Muslims, including those termed ‘moderate’, would find
his presence in London, and the UK in general, offensive. Under the
UB (unacceptable behavior policy) 2005 it is reasonable to
conclude that Spencer’s exclusion from the UK is justified because
he has published or said (and will continue to do so) words that
foster hated which might lead to inter community violence in the
UK”. [148]. Again this is stated without any evidence of imminent
and/or uncontrolled violence.
8. It is alleged the Second Applicant’s Article 10 rights are outweighed
by the potential adverse consequences of the Second Applicant being
19
allowed to speak at the demonstration.[page136]. No separate
consideration is given to the Second Applicant’s rights under section
29J of the Race and Religious Hatred Act 2006 and/or his other
convention rights.
The exclusion letters [Tab 2, 73-76]
38. By a letter dated 25/6/2013 addressed to the First Applicant, the Secretary
of State personally directed (though the letter is signed on her behalf) in so
far as material as follows:
“I am writing to inform you about the British government’s measures for
excluding or deporting extremists under the Unacceptable Behaviour policy.
The list of unacceptable behaviours covers any non-UK national whether in
the UK or abroad who uses any means or medium … to express views that…
foster hatred which might lead to inter-community violence in the UK… The
Home Secretary notes that you are a prolific blogger, author, political
activist and commentator. You co-founded Stop Islamisation of America, an
organisation described as an anti Muslim hate group. You also operate a
number of websites including Jihad Watch and Atlas Shrugs.
You are reported to have stated the following:
Al-Qaeda is a manifestation of devout Islam…it is Islam.
If the Jew dies, the Muslims will die as well: their survival depends on their
constant jihad, because without it they will lose the meaning and purpose of
their existence.
The Home Secretary considers that should you be allowed to enter the UK
you would continue to espouse such views. In doing so, you will be
committing listed behaviours and would therefore be behaving in a way
that is not conducive to the public good.
You are therefore instructed not to travel to the UK”.
39. By a letter dated 25 June 2013, addressed to the Second Applicant, the
Secretary of State personally directed (though the letter is signed on her
behalf) in so far as material as follows:
20
“I am writing to inform you about the British government’s measures for
excluding or deporting extremists under the Unacceptable Behaviour policy.
The list of unacceptable behaviours covers any non-UK national whether in
the UK or abroad who uses any means or medium … to express views that…
foster hatred which might lead to inter-community violence in the UK.. The
Home Secretary notes that you are the founder of the blog Jihad Watch (a
site widely criticized for being Islamophobic). You co-founded the Freedom
Defense Initiative and Stop Islamization of America, both of which have
been described as anti Muslim hate groups.
You are reported to have stated the following:
“It [Islam is a religion and is a belief system that mandates warfare against
unbelievers for the purpose for establishing a societal model that is
absolutely incompatible with Western society because media and general
government unwillingness to face the sources of Islamic terrorism these
things remain largely unknown.
The Home Secretary considers that should you be allowed to enter the UK
you would continue to espouse such views. In doing so, you would be
committing listed behaviours and would therefore be behaving in a way
that is not conducive to the public good.
You are therefore instructed not to travel to the UK as you will be refused
admission on arrival..”.
40. The Applicants wrote a pre-action letter challenging the exclusion on
3/7/2013. [Tab 3]. By a response dated 12/7/2013, the Treasury Solicitors
sought an extension of time within which to respond contending that the
Respondent will not rely on any delay defence. That request was duly
granted by the Applicants. By a letter dated 2/8/2013 (received 5/8/2013),
the Secretary of State wrote seeking to justify the decision on the basis of the
“Prevent” strategy, contending that there was no breach of the ECHR rights
relied upon by the Applicants. [Tab 4]. The Secretary of State expressly
contends the decision to exclude the Applicants “was taken in accordance
with the governments ‘Prevent’ strategy for combating extremism and/or
terrorism”. This makes it clear that, in order to prevent terrorism, it is
21
necessary to combat extremist ideologies and that the Secretary of State has
identified a number of “unacceptable behaviours” which pose a threat to
public safety, including the expression of views which “foster hatred which
might lead to inter community violence”. It is alleged by the Secretary of
State that the assessment of the Secretary of State is reasonable. It is alleged
by the Secretary of State that the unacceptable behaviours policy is lawful
(even though it runs contrary to the objectives of Prevent). It is not
suggested that it has been approved by Parliament. The Secretary of State
alleges that there exists no actionable breach of the Applicants’ convention
rights.
GROUNDS
Abuse of power
41. The Secretary of State’s decision to exclude the Applicants constitutes an
abuse of power because the Secretary of State relies on the power to curtail
terrorism and terrorist ideology for the collateral purpose of excluding the
Applicants and/or on policies which fail the test for legal certainty.
42. The decision to exclude the Applicants is based on the Unacceptable
Behaviours Policy made under the government “Prevent” and “Contest”
policies. [Tab 7, 8]. As reflected upon above, these apply only to combating
terrorism through dealing with terror suspects and/or those extremists who
encourage terrorism. There is no power under “Prevent” to exclude non-
terror suspects such as the Applicants who are in effect assisting the Home
Secretary in the implementation of the “Prevent” policy by opposing Islamic
extremists and terrorists in their writings. The Applicants are not promoting
ideas which can be said to form part of a terrorist ideology. The “Prevent”
policy itself states that “we remain absolutely committed to protecting
freedom of speech in this country, but preventing terrorism will mean
challenging extremists (and non-violent ideas that are also part of a
terrorist ideology)” (3.10). It is to be noted that the “Prevent” policy does
expressly state “The Terrorism Act of 2006 established offences which in
effect relate to Prevent” (6.13), though the policy does not state the enabling
provisions under which it is made. If the power to exclude exists under
22
“Prevent”, it is limited to those cases which encourage terrorist ideology. This
is evident from Hansard, where the Secretary of State states:
“Prevent provides a template for challenging the extremist ideas and
terrorist actions which seek to undermine the rule of law and fundamental
British political values and institutions…
So where propagandists break the law in encouraging or approving
terrorism, it will mean arrest and prosecution, and where people seek to
enter this country from overseas to engage in activity in support of
extremist or terrorist groups, we will exclude them. Since coming to power,
I have already excluded 44 individuals from the UK either because of
unacceptable behaviour or for national security reasons”. [Hansard 7 June
2011, Columns 52/53].
43. The Unacceptable Behaviours Policy, therefore, does not permit the
exclusion of the Applicants who do not, on the evidence, fall within the
“Prevent” policy. If it were otherwise, terrorists could induce the Secretary
of State to exclude those who are said to be Islamophbic. The policy can thus
be used to divorce the right to visit from any impropriety whatsoever on the
part of the persons to be excluded. “The “Prevent” policy is only limited to
possible terrorist activities and their encouragement. The post decision
letter of the Secretary of State dated 5/8/2013 admits that the inter
community violence clause in the Unacceptable Behaviours Policy goes
contrary to the objectives of “Prevent”. [Tab 4, 83]. Accordingly, this is a
classic case where the Secretary of State is exercising her powers for an
extraneous purpose, in that she is using her powers provided to curtail
terrorism for a collateral object: that is, for the purposes of excluding foreign
nationals by dangerously curtailing their freedom of expression and/or
other freedoms on a personal whim: a clear abuse of power. As Lord
Bingham held in R (Gillan) v Comr of Police of Metropolis [2006] 2 AC 307:
“the Public must not be vulnerable to interference by public officials acting
on any personal whim, caprice, malice, predilection or purpose other than
for which the power was conferred. This is, what, in this context, is meant
by arbitrariness..” 346, F.
23
44. This is particularly true when the Secretary of State seeks to rely on s. 3 (1)
of the Immigration Act 1971 in order to legitimise the exclusion under the
“Prevent” strategy. S 3 (1), however, does not permit the enactment or
interpretation of policy to exclude individuals such as the Applicants whose
views are conducive to the public good within the meaning of s.3 (1) and/or
in accordance with the law. The Applicants’ views are either permissible
under s.29 J of the Race and Religious Hatred Act 20065 and/or under the
“Prevent” policy since their views target Islamic extremism and are
protected under s. 29 J referred to above. Any order made by the Secretary
of State under s. 3 (1) (a) has to comply with section 29 J. Otherwise, it
would be ultra vires: see Laker Airways v Department of Trade [1997] QB
643 referred to in para 66 below.
45. In Galloway v London Corp (1866) L.R. 1 HL 34, at 43, it was held that the
Secretary of State cannot exercise its discretionary powers for any collateral
object. The Courts have more historically held that it is unlawful to exercise
a power for unauthorised purposes: see R v Secretary of State for Foreign
Affairs Ex p. World Development Movement [1995] 1 W.L.R 386; R v
Somerset CC Ex p. Fewings [1995] 1 WLR 1037. In the World Development
case, it was held that the minister’s dominant purpose in funding the
uneconomic project was not the authorised one of furthering the economy or
welfare of the people of Malsia. In Somerset, it was held that the dominant
purpose of fulfilling the ethical perceptions of councillors did not fulfil the
authorised statutory purpose, namely the improvement of the amenity of the
area. It is “for the Courts and not the Secretary of State to determine
whether the conduct is within the statutory purpose”: see the World
Development case.
46. Accordingly, the power has not thus been validly exercised since it is
exercised for a collateral and/or unauthorised purpose.
5 See para 64 below.
24
47. The Prevent and Unacceptable Behaviours policies, moreover, do not pass
the test for legal certainty (see para 97 (4) below). It is not clear under which
statutory provision the “Prevent” policy is enacted and can be modified to
allow exclusion of foreign nationals who do not promote any terrorist
ideology. The same applies to the Unacceptable Behaviours Policy.
Consequently, it is an abuse of power to rely on these policies to exclude the
Applicants, particularly when the Applicants have a legitimate expectation
to enter the UK on the basis of these policies (see legitimate expectations
ground below) and oppose the same behaviours targeted in the Prevent
policy. In her post decision letter, the Secretary of State accepts that the
Unacceptable Behaviours Policy list is not a requirement itself to be
satisfied. Ironically, however, her decision letters dated 25/6/2013, referred
to above, state the opposite. This is evident from the following words in the
two respective decision letters: “The Home Secretary has reached this
decision because you have brought yourself within the scope of the list of
unacceptable behaviours”.
Article 17 of the ECHR
48. Article 17 of the ECHR in so far as material states:
“Nothing in this Convention may be interpreted as implying for any State,
group or person any right to engage in any activity or perform any act
aimed at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided in the
Convention”.
49. Given that the exclusion orders constitute an abuse of power; this article is
engaged, particularly since the Applicants oppose violence. Article 17 precludes
any interference with Applicants’ Article 10 rights to protect religious
minorities under Article 9 of the ECHR. Consequently, the Secretary of State
cannot rely on the rights of minorities, particularly in relation to causing them
offence.
25
Illegality
50. The exclusion based on the Unacceptable Behaviours Policy is unlawful and
ultra vires since the so-called “Prevent” policy does not provide for it and it
has not been suggested by the Secretary of State that the Unacceptable
Behaviours Policy has been approved by Parliament. The Applicants rely on
the following reasons:
1. For the reasons referred to in paragraphs 41-46, there exists an abuse
of power.
2. The “Prevent” policy has not been enacted under s.3 (1) of the
Immigration Act 1971 and/or under any other enabling provision in
primary legislation.
3. Even if the “Prevent” policy is made under s. 3 (1) of the Immigration
Act 1971, as implicitly claimed by the Secretary of State in her reply to
the Applicants’ pre-action letter, the “Prevent” policy is not a
concessionary policy. Rather it is a policy which introduces an
absolute discretion as to the circumstances in which the Home
Secretary can exclude individuals from the UK. The Secretary of State
in her post decision letter states the Unacceptable Behaviours Policy
is not “exhaustive”. [Tab 4, 84]. This means that it has shifted from a
policy to the conferral of unilateral power to exclude at will. The
Unacceptable Behaviours Policy, therefore, amounts to a statement
“as to the practice to be followed” regarding exclusion of individuals
at will. Consequently, it constitutes an “immigration rule” within the
meaning of the Immigration Act 1971 s. 3 (2) and must be approved
by Parliament: see Munir v Secretary of State for the Home
Department [2012] 1 WL.R. 2192; The Alvi case [2012] 1 WLR 2208.
In her reply to the Applicants pre action letter, the Secretary of State
has not suggested that the policy has been approved by Parliament. In
Naike v Secretary of State [2011] EWCA Civ 1546, although the
legality of the unacceptable behaviours policy was not challenged by
26
the Appellant, the Secretary of State did not suggest that it had been
approved by Parliament through the negative resolution process.6
Consequently, the unacceptable behaviours policy is unlawful.
4. The Secretary of State’s explicit reliance on the “Prevent” policy to
retrospectively justify the Applicants exclusion under the
Unacceptable Behaviours Policy renders the decision unfair (see the
post decision letter of the Secretary of State dated 5/8/2013). This is
because it does no more than pick and choose policies that match its
restricted powers to exclude under s.3 (1) of the Immigration Act
1971.
5. Exclusion under “Prevent” has not been placed on a statutory footing
which is necessary to provide the Secretary of State expressed powers
of exclusion. At present, the “Prevent” policy is being used to confer a
power on the Secretary of State to legislate – a power which is
unconstitutional and ultra vires - legislative power is the prerogative
of Parliament.
51. It is clear that the requirement of conducive to the public good in
immigration rule 320 (6) fetters the Secretary of State’s discretion and is
incompatible with a position of absolute power which the policy seeks to
import.
52. The Unacceptable Behaviours Policy amounts to a change in immigration
rule 320 (6) without grant of Parliament and therefore is unlawful. It
introduces wording and listed behaviours not found in rule 320 (6). It
enables the Secretary of State to exclude non-UK nationals in
circumstances where rule 320 (6) does not.
6See paras 16 and 65. The Court of Appeal merely held that “The Home Secretary announced to
Parliament that there would be a presumption in favour of exclusion of those found to have
engaged in the types of behaviour listed in the August 2005 statement” (para 16).
27
53. Rule 320 (6) permits exclusion of a non-UK national where the exclusion
is not conducive to the public good without specifying listed behaviours
contained in the Unacceptable Behaviours Policy or containing the
provision referring to views which “might lead to inter community
violence” (“the inter community violence provision”).
54. Rules 320 (6) has to be construed compatibly with article 10, 11, 9, 17 and
14 of the ECHR. It does not permit premature pre-emptory exclusion of
non-UK nationals without the deployment of law enforcement to curtail
the perceived threat to the peace or public order. This is evident from the
decision of the House of Lords in R v Laporte [2007] 2 A.C 105.
55. R v (Laporte), concerned a challenge to the decision to exclude the
Appellant from a lawful protest. The decision to exclude was taken on the
basis that his lawful presence may lead others at some time in the future
to breach the peace. Their Lordships (Lord Bingham, Lord Roger, Lord
Carswell and Lord Mance) held that the police action to exclude the
Appellant from a lawful assembly, on the basis that others might have
behaved unlawfully, was premature. It was, therefore, disproportionate.
The breach of peace was not sufficiently imminent to justify an arrest.
56. In R v (Laporte), their Lordships House held that a threshold test of
imminence must be passed before action may be taken to prevent a breach
of the peace. Once that test of imminence is passed, reasonably necessary
action to prevent a breach of peace can only be taken where it is
proportionate to do so. Per Lord Bingham, at paras 39-40 and 46-49, Lord
Roger at para 62, Lord Craswell para 101, Lord Brown at para 114, and
Lord Mance at para 141.
57. Lord Mance ruled in R (Laporte) at para 141.
“I regard the reasonable apprehension of an imminent breach as an
important threshold requirement, which must exist before any form of
preventative action is permissible at common law. Where a reasonable
28
apprehension of an imminent breach of peace exists, then the
preventative action taken must be reasonable and proportionate”.
58. In determining whether a breach of peace was imminent, an essential
condition is the “immediacy of the threat to the peace” in the sense of
“close proximity both in place and time” (see per Lord Carswell in R v
Laporte, page 148, C-D; and Lord Bingham at page 130, paras A-B citing
Moss v McLachlan [1985] IRLR 76).
59. Lord Mance ruled at 141.
“The requirement of imminence is relatively clear-cut and appropriately
identifies the common law power of last resort catering for situations
about to descend into violence”.
60. Referring to the action taken by the respondent to exclude lawful
protesters on the ground of a threat of violence from third parties, Lord
Mance ruled at 161 E-F as follows:
“... the action taken was premature – taken at a time when a breach of
peace was not imminent. (In fact, for the reasons which will appear in
paras 152 – 154, I would not anyway accept that the suggested difficulty
and need existed”.
61. His Lordship continued at 152 -154:
“...152 the question then is whether the preventive action actually taken is
justified so far as it concerned the claimant, Ms Laporte. In my opinion it
was not, because it has not been shown to have been either reasonable or
proportionate...
62. It is evident from the Judgment of Lord Bingham at page 131 A-B “it is not
enough to justify action that a breach of peace is anticipated as a real
possibility”. His Lordship held at para 50 the intervention by the
authorities cannot occur when the action is short of arrest, thereby
29
acknowledging that intervention on imminent breach of peace can only
take place where the action in question is unlawful.
63. The policy seeks to circumvent these limitations in Rule 320 (6) by
introducing, without Parliamentary approval, a non-exhaustive list of
unacceptable behaviours. This provides the Secretary of State with an
absolute discretion to exclude those exercising offensive speech which
“may” lead to a breach of peach or public disorder offences under part 3A
of the Public Order Act 1986 (as in this case). The important test of
lawfulness referred to in Laporte has, therefore, been abrogated.
64. The application of the policy in this way clearly offends the statutory
context in which the powers are to be exercised, namely the ECHR
limitation in 320 (6) referred to above and the provision of 29J of the
Race and Religious Hatred Act 2006.
65. Section 29 J protects offensive speech from the purview of public disorder
offences referred to in Part 3A. Part 3A of the POA 1986 came into force
on 1 October 2007. It provides protection in relation to threatening speech
against “a group of persons defined by reference to religious belief or lack
of religious belief” that is carried out with the intention to stir up hatred.
Section 29J of the Public Order Act 1986 provides that nothing in part 3A
“shall be read or given effect in a way which prohibits or restricts
discussion, criticism or expression of antipathy, dislike, ridicule, insult or
abuse of particular religions or beliefs or practices of their adherents”.
66. Thus Parliament has provided for the expression of the Applicants’ views
via section 29J but the policy seeks to deprive the Applicants of such
protection through application of an open ended discretion. In Laker
Airways v Department of Trade [1977] QB 643 (CA), the Secretary of
State’s policy guidance was held unlawful as it cut across statutory
objectives which made it clear that the British Airways Board was not to
have a monopoly. The Secretary of State should have amended the Act,
rather than issue guidance. The same reasoning applies to the present case
where the policy cuts across s.29J. It is not open to the Government to
30
deprive individuals of statutory protection through a policy even where
that policy provides an open ended discretion: see Congreave v Home
Office [1976] QB 629 where the Court of Appeal held that the minister
could not use his power to revoke the licensees in order to deprive
licensees of the advantage that they had secured through parliamentary
authorization. The policy, therefore, is ultra vires and/or unlawful.
67. There is nothing in the Secretary of State’s plea for deference contained in
the post decision letter. Indeed, it is for the Court, as a matter of law, to
determine a policy’s meaning, and if the decision maker fails properly to
understand that meaning, it will have committed an error of law: see per
Brook LJ in R v Derbyshire Ex p. Woods [1997] J.P.L 958, at 967-968; per
Sedley LJ in First Secretary of State v Sainsbury’s Supermarkets Ltd
[2005] EWCA Civ 520 “the interpretation of a policy is not a matter for
the Secretary of State”, para 16.
Error of law
68. The Secretary of State’s decision, whether viewed under the rules or the
policy, is unlawful in any event, since it fails to apply the correct
“imminent violence” test for exclusion referred to in Laporte. The existing
evidential material did not show that there was a situation that was about
to descend into violence following the reasoning in Laporte. As a matter of
law, the Applicants could not be excluded on the existing materials. This
was a question that ought to be asked and was not asked. The Secretary of
State instead proceeded to exclude the Applicants without any further
enquiry. In doing so, she set the threshold for exclusion at the lowest,
when it was a high one following the reasoning in Laporte. The Secretary
of State thereby erred in law. As Ouseley J held in Moon v ECO [2006]
INLR 190, errors of law committed by the Secretary of State are amenable
to judicial review. As his Lordship held:
“no special deference is called for in the assessment of facts…the point
could not be disposed of as a matter of upon which the Secretary of
States decision was reasonable without further consideration of the
31
material before the Secretary of State and the adjudicator.. We have to
say that the approach of the adjudicator read as a whole was far too
deferential to the Secretary of State’s appraisal, even if Farrakhan test
represents the correct approach to adopt.. If that degree of deference is
called for, it had to be earned with the care with which the Secretary of
State addressed the relevant issues, and had come to a reasoned and
balanced decision. It is difficult to characterise the secretary of state’s
decision in that way. It then had to withstand the effect of the new
material before the adjudicator... This is a case, however, where the
decision was based on material which did not warrant the conclusion
reached… This is not disagreement with an evaluation as to what
constitutes the public interest or as to a balance struck between
competing public and private interests, but a judgment that the factual
material simply does not justify the Secretary of State’s conclusion as to
the factual basis for the existence of a risk”. Para 131 and 138.
69. The Secretary of State has not concluded that there exists a threat to
national security arising out of the conduct of the Applicants. The case is
wholly different from Rehman [2005] 1 AC 153 (a case relied upon by the
Secretary of State) where the conduct concerned association with
organisations concerned with terrorist activities and endangered national
security of the United Kingdom justifying deportation.
70. On the evidential materials before the Secretary of State, it was accepted
that the Second Applicant was a respected scholar on Islam. It was
accepted that the First Applicant would preach a message of tolerance
when challenged on her views. Both had no previous convictions and were
opposed to violence. The law enforcement agencies could, and should,
have curtailed any alleged outburst threatening an “imminent” breach of
peace or public order. This was hardly evidence of a situation that may
lead to violence. The mere possibility of public disorder or violence did not
justify exclusion following the reasoning in Laporte. Nor is it sufficient
that violence is anticipated: see per Lord Bingham 131 A-B. The perceived
possibility of public disorder or violence can exist almost in any form of
public gathering.
32
71. Thus the State’s entire approach is flawed. Instead of spending time and
effort reviewing the views of the Applicants, there should have been an
identification of the likely perpetrators of violence, so that the threat could
be managed and/or curtailed through law enforcement. The Secretary of
State made no attempt to contact the Applicants and question them about
their views. If the Secretary of State can exclude on the basis of the views
of a select few in society, a wall against dissent is being improperly
construed through exclusion orders.
72. The evidential material available to the Secretary of State refers to a You
Tube video which shows that, in 2012, there were peaceful protests against
the Applicants in Stockholm. The wreath was laid, in the absence of the
Applicants, without any incident of public disorder in the UK.
73. The evidential material referred to above shows that the Applicants do not
promote violence or hate. Their actions were lawful actions. It was not
shown that the material upon which the exclusion was made had led to
any violent protests or that such protests were in progress.
74. The fact that, Breivik, a Norwegian, may have been inspired to commit
murder in the past did not show that publications or writings of the
Applicants were the cause of current unrest in the UK. There was no
evidence that the Applicants publications had caused inter community
violence or any violence that could not be managed through law
enforcement. No one really knows why Breivik did what he did. In any
event, the fact that somebody is inspired to commit offences through
reading literature is an issue for law enforcement rather than exclusion.
Breivik cited many people besides the Applicants, and specifically,
criticized the Second Applicant for not calling for violence.
75. The materials that the exclusion was based upon were readily available in
the UK, where far more extreme views have been expressed without any
inter community violence. Both the Applicants drew a clear line between
33
Islamic extremists in favour of violence and peaceful Muslims whom they
regarded as part of their struggle for freedom – ironically - this is the very
basis for the “Prevent” policy. That policy seeks to move the former
towards the latter.
Legitimate expectation
76. The Applicants have a legitimate expectation to enter into the UK on the
basis of the strategy outlined in the “Prevent” policy. That this is so can be
amply discerned through the following:
(i). On the evidential materials before the Secretary of State, it is plain that
the Applicants are critical of Islamic extremism and are opposed to
violence, including terrorism. The “Prevent” strategy makes it clear that
persons such as the Applicants who criticise Islamic extremism, religious
violence and terrorism will be useful to the policy aims of the prevention
of terrorism in the “Prevent” strategy which the Secretary of State relies
on. The Applicants’ presence in the UK is thus conducive to the public
good within the meaning of s.3 (1) of the Immigration Act 1971.
(ii). In engaging in the discussions referred to in the exclusion letters
dated 25 June 2013, the Applicants are engaging in theological discussion.
These theological discussions involve thorny issues, such as whether the
societal model that Islam in radical form offers is actually compatible with
Western values predicated upon the Judeo-Christian ethic, and whether
the concept of Jihad has, at its heart, anti-Semitism that has fuelled
savage jihadi groups in the Palestinian Authority and Israel (the issue
raised in the First and Second Applicants’ discussions). The “Prevent”
strategy provides a clear evidential basis for the legitimate expectation
that the Applicants will be allowed to express such views on the basis that
theological discussions are conducive to the public good. It states:
‘The last strategy recognised the difficulty of the Government taking a
position on matters of theology. But the Government designated Islamic
studies as a ‘strategically important and vulnerable subject’, allowing the
34
Department to facilitate networking and collaboration between
academics. It supported work by a group of leading scholars, community
leaders and academics to consider how Islam is contextualised in this
country.’ (Paragraph 8.36 of Prevent).
It is thus clear that the Applicants’ discussions on theology, and thus their
presence in the UK, would fall within “Prevent”. They were correct in
assuming that their presence in the UK would be allowed on the test of
“conducive to the public good”. In fact, they believe their presence would
be conducive to the public good. Their views on Islamic extremism are
consistent with the February 2011 speech of Prime Minister David
Cameron on radicalisation and causes of terrorism delivered in Munich.
This in essence states that Islamic extremism, as a political ideology, is not
the same thing as Islam and needs to be questioned through open debate.
The speech is said to have angered some Muslim groups and was made
during an EDL rally in the UK. The speech, however, did not cause any
inter community violence (see para 20 of the First Applicant’s witness
statement and exhibit PG1).
Theological dissent is a key part of the integration strategy for minority
groups that “Prevent” seeks to bring about. “Prevent” states: ‘“Prevent
depends on a successful integration strategy” (“Prevent” at para 3.14).
Theological dissent shown by the applicants’ views brings theology in line
with a pluralistic democratic society with different views and opinions.
The acceptance of pluralism and dissent amongst religious groups is
clearly fundamental to the prevention of terrorism and to creating
community cohesion. Exclusion would have directly the opposite effect by
entrenching a lack of tolerance and related extremism.
(iii). The “Prevent” policy has been relied on by successive Governments
and the Secretary of State since 2005. It thus is regular practice that the
government can be expected to follow, and as such, forms the basis of a
legitimate expectation. As Lord Fraser stated in Council for Civil Service
Union v Minister for Civil Service [1985] AC 374 at 401B: “Legitimate . . .
expectation may arise either from an express promise given on behalf of
35
a public authority or from the existence of a regular practice which
the claimant can reasonably expect to continue”.
Recently, the Secretary of State has, six years after the creation of
“Prevent”, relied on “Prevent” on 7 Jun 2011 (Hansard: 7 June 2011
Column 52). Consequently, the existence of “Prevent” is “regular state
practice which the claimant can reasonably expect to continue”.
It is, moreover, clear law that legitimate expectations may fetter the
discretion of the Secretary of State to exclude persons on an absolute
basis. The Court of Appeal allowed legitimate expectations to fetter the
discretion of the exercise of power in R v North and East Devon Health
Authority ex p. Coughlan [2001] QB 213, CA. Hence, the Secretary of
State must be open to different forms of reliance on the “Prevent” strategy
to the extent that it is permissible for the Court to provide a legitimate
expectation based on “Prevent” that fetters the discretion of the Secretary
of State to exclude.
(iv). The Secretary of State has also breached the Applicants’ legitimate
expectation that Articles 9, 10 and 11, 14 and 17 of the ECHR will not be
breached. A legitimate expectation can also be based on the existence of a
convention right where there is government policy indicating that the
presence of the Applicants in the UK is conducive to the public good (see
by analogy per Lord Woolf MR in R v North and East Devon Health
Authority ex p. Coughlan [2001] QB 213 (CA) at paras 90-93).
Accordingly, the Applicants’ exclusion was not permissible. Their
exclusion is contrary to their legitimate expectation, namely that their
entry is conducive to the public good in accordance with “Prevent”. The
language in s.3 (1) of the Immigration Act 1971 places a positive obligation
on the Secretary of State to include persons within the UK whose presence
would be conducive to the public good.
(v). In any event, the Secretary of State allowed the wreath to be laid in the
absence of the Applicants which constitutes an impermissible evisceration
of the Applicants’ legitimate expectation that they will be allowed to
undertake such peaceful activity in the UK.
36
Procedural impropriety
77. Given that the “imminent” test in Laporte was never applied by the
Secretary of State to its fact finding process, the subsequent decision to
exclude the Applicants is procedurally improper or tainted with
procedural impropriety. The decision thus must be annulled.
78. It is clear, moreover, from the authorities that it is essential for the
Secretary of State to be adequately and fully informed of the relevant facts.
Indeed, the wider the discretion, the more important it is that the
Secretary of State has all the relevant material to enable her to properly
exercise it: see R v Secretary of State for the Home Department ex p
Venables [1998] AC 407 (CA) 453F; 466G. A failure to conduct adequate
enquiries is a ground of review: see R v Kensington and Chelsea Royal
London Borough Council ex p. Silchenstedt (1997) 29 HLR 728.
79. The Courts are not thus powerless to intervene. The Secretary of State
relies on the decision in Farrakhan. That case is plainly distinguishable.
In Farrakhan violent protests were already taking place leading to the
arrests of several members of the nation of Islam. There exists no evidence
of such violence in the present case. In any event, the case of Farrakhan
was considered by the Court of Appeal in Naike where their Lordships
held thus:
“the modern law is not fully reflected in Farrakhan, or the other cases
cited by the judge. The position which emerges is reasonably clear.
Ministers, accountable to Parliament, are responsible for national
security; judges are not. However, even in that context, judges have a
duty, also entrusted by Parliament, to examine Ministerial decisions or
actions in accordance with the ordinary tests of rationality, legality, and
procedural regularity, and, where Convention rights are in play,
proportionality. In this exercise great weight will be given to the
assessment of the responsible Minister. However, where rights under
Article 10 are engaged, given the special importance of the right to free
speech, it is for the Court, looking at the interference complained of "in
37
the light of the case as a whole", to determine whether the reasons given
to justify the interference were "relevant and sufficient". This will involve
a judgment whether the measure taken was proportionate to the
legitimate aims pursued, based on "an acceptable assessment of the
relevant facts", and in conformity with the principles embodied in Article
10 (see Cox above). A range of factors may be relevant, including
whether the speaker occupies "a position of influence in society of a sort
likely to amplify the impact of his words" (para 42 above). The
supervision must be "strict", because of the importance of the rights in
question, and the necessity for restricting them must be "convincingly
established". [para 48].
80. The present case is not a case involving national security issues. The
supervision must be strict. The necessity for the restrictions into the
Applicants’ free speech must be convincingly established, which cannot be
established on the facts of the present case. The decision of the Secretary
of State to exclude the Applicants was procedurally improper. The
Secretary of State was not presented with the full picture, failed to take
into account relevant facts, and/or failed to conduct an enquiry into the
relevant facts. The Applicants rely on the following facts to demonstrate
procedural impropriety falling within the Court’s review functions:
1. The Secretary of State did not take into account the Applicants’
personal views about the subject matter of the exclusion. In the
case of (Khatum) v London Borough of Newham [2004] EWHC
Civ 55 Laws LJ held that the duty of a decision maker to have
regard to relevant consideration may require him/her to take into
account the person’s views about the subject matter.
2. The Secretary of State based her decision on political
considerations, in that the letter from the Metropolitan Police
contains a threat from the Leader of the Council and the Chief
Executive. The threat states, if the Applicants were allowed to
address the rally, they would make cross party and community
representations. Following this letter dated 24th June 2013, the
38
Secretary of State decided to exclude the next day on 25th June
2013 despite the fact that, on the materials before the Secretary of
State, the visit was not due to take place until 29/6/2013. This
meant that the Secretary of State made a rapid decision taking into
account an immaterial consideration and/or her decision was
tainted with a improper purpose: see Local Commissioners for
Administration in North and North East England ex part
Liverpool City Council [2001] 1 All ER 462 [36]; R v Secretary of
State for Foreign and Commonwealth Affairs, ex p World
Development Movement Ltd [1995] 1 WLR 386, 398C-D. It is to be
noted that the email in response to the above threat does not reveal
the identity of the decision maker. The Court is entitled to see that
discretion is not exercised for an improper motive: see Laker
Airways.
3. The Secretary of State failed to make any further enquiry into
whether the alleged threat of inter community violence could be
avoided through police powers by banning orders, area exclusions
and/or by restricting the Applicants’ visit to a private one. These
powers were readily available to the police under the Public Order
Act 1986 and following the reasoning in R v Laporte ought to have
been used. The police report expressly mentions instances where
the police intervened by way of banning orders to prevent disorder
without making any arrest. The police submissions referred to
above, however, do not make available any evidence regarding
whether it was possible to curtail the alleged threat through law
enforcement.
4. The Secretary of State failed to take into account the following
relevant facts:
1. The Applicants were opposed to violence and their views were
theological views, which are required to be received under the
“Prevent” policy and/or in the general public interest.
39
2. The right of assembly and/or protest of other interested groups
such as Muslims and/or other minorities such as certain Jewish
groups who, on the evidential materials, were said to be
sympathetic to the Applicants.
3. The public’s right to be informed of a different perspective
irrespective of how unpalatable that perspective may have been,
since the ECHR required her to do so: see Surek and Ozdemir v
Turkey7 referred to in paragraph 88 below.
4. That, even on the redacted material presented by the MP, the
protests recorded in You Tube were peaceful protests. Any threat
could, and should, have been curtailed by law enforcement.
5. That the Applicants had published numerous books on the topic
of Islam, for which they received excellent reviews and that in a
pluralistic society of dissent, there was a public interest in the
debate advanced by the Applicants.
6. The material subject to the exclusion was already freely available
in the UK on the internet, and had not caused any public disorder
in the UK.
7. There were numerous Muslims in the US who had not reacted to
commit a public disorder offence when dealing with the
Applicants’ work.
8. The available materials did not justify a factual basis for the
existence of a risk or appropriate degree of risk that the
Applicants’ views may lead to inter community violence. There
was no situation that was about to descend into violence, as
required by the reasoning in Laporte. The MP report, for
instance, identifies instances where the police had intervened to
cancel a rally without any arrests.
7 8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.
40
9. Contrary to Article 14 (see below), the evidence gathered was
almost entirely one sided, and failed to present similar views to
those of the Applicants from other organizations within the UK,
including organizations and individuals such as:
(1). EDL.
(2). Geert Wilders.
(3). Paul Weston.
(4). UKIP (Lord Pearson).
(5). Richard Dawkins.
(6). Douglas Murray.
(7). Melanie Phillips.
10. The Applicants had a complete defence to their speech and
conduct pursuant to s. 29J of the Race and Religious Hatred Act
2006 and/or domestic common and international law.
11. The Secretary of State did not take into account the Applicants’
Articles 9, 10, 11, 14 and 17 rights and gave no reasons as to why
those rights were outweighed. No reasons were given on the basis
upon which the situation in the UK was about to descend into
violence and/or otherwise.
Inadequate reasons were given in support of the decision that
there may be inter-community violence arising from the
expression of the Applicants’ views.
Article 10 of the ECHR/International law
81. The Secretary of State’s decision to exclude the Applicants breaches their
rights under Article 10 of the ECHR and/or is contrary to international
law.
41
82. Article 10 of the ECHR states:
"(1) Everyone has the right to freedom of expression. The 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 interest 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 right
of others".
83. The Applicants were meeting individuals here in the UK and intended to lay
flowers at the memorial site of Lee Rigby together with other freedom-loving
individuals in the UK. The Applicants were excluded from the UK because it
was alleged that they would continue to “espouse” their views.
84. Freedom of expression under Article 10 protects the right to receive
opinions and information, as well as the right to express them. Article 10
prohibits the State from restricting the receipt by an individual of
information that others wish or may be willing to impart.8
85. The right to receive and impart ideas is of such importance has been
described as the “lifeblood of democracy”.9
86. Freedom of expression encompasses expression in any medium, including
symbolic acts such as laying of flowers, which is analogous to displaying a
8 Leander v Sweden (1987) 9 E.H.R.R. 433 (para 74).
9 London Regional Transport v The Mayor [2003] E.M.L.R.4, CA per Sedley LJ, para 55.
42
banner or exhibiting a painting to which Article 10 extends: see X v
Germany (Application No. 9235/81) 29 DR 194; Muller v Switzerland
(1988) 13 EHRR 212.
87. Freedom of expression is also guaranteed under Article 19 of the
International Covenant on Civil and Political Rights (ICCPR).10 It is one of
the essential foundations of a democratic society and includes the right not
only to express “ideas that are favourably received”, but also those that
“offend, shock or disturb” (Sunday Times v UK (No. 2) [1992] 14 EHRR 123,
para 65). In modern, pluralistic democracies, there are few matters worth
debating that will not elicit a viewpoint that someone will find offensive,
shocking, or disturbing. Consequently, as his Lordship, Lord Justice Sedley,
aptly observed in Redmond Bate v DPP (2000) H.R.L.R. 249 "Freedom only
to speak inoffensively is not worth having".
88. Both the ECHR and the ICCPR protect, not only the right of every person to
express themselves, but the right of the public at large to hear a wide range
of points of view, including those which some may find shocking or
offensive. This is illustrated by the case of Surek and Ozdemir v Turkey11 in
which the ECHR found a violation of freedom of expression where a
newspaper had printed an interview with a PKK activist calling for a
separate Kurdish state. Noting the public’s right to hear different points of
view, the Court held that “the domestic authorities in the instant case failed
to have sufficient regard to the public’s right to be informed of a different
perspective on the situation in south-east Turkey, irrespective of how
unpalatable that perspective may be for them”.
89. In Nolan v Russia App 2512/04 6th July 2009, it was held that a state must
exercise its immigration controls consistently with its convention
obligations when dealing with foreign nationals. In Farrakhan v Secretary of
10 Adopted and opened for signature, ratification and accession by UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976.
11 8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.
43
State it was held (whether by concession or otherwise) that Article 10 of the
ECHR was engaged, even though Mr Farrakhan, was a US national outside the
UK.
90. In Cox v Turkey [2010] Imm AR 4 it was held:
"31. The Court considers that the ban on the applicant's re-entry is
materially related to her right to freedom of expression because it
disregards the fact that Article 10 rights are enshrined "regardless of
frontiers" and that no distinction can be drawn between the protected
freedom of expression of nationals and that of foreigners. This principle
implies that the Contracting States may only restrict information
received from abroad within the confines of the justifications set out in
Article 10 § 2 (Autronic AG v. Switzerland, 22 May 1990, §§ 50 and 52,
Series A no. 178). The scope of Article 10 of the Convention includes the
right to impart information. The applicant is precluded from re-entering
on grounds of her past opinions and, as a result, is no longer able to
impart information and ideas within that country. In light of the
foregoing, the Court concludes that there has been an interference with
the applicant's rights guaranteed by Article 10 of the Convention. The
Court will thus proceed to examine whether that interference was
justified under the second paragraph of that provision." [para 31].
91. In Naike v Secretary of State for the Home Department [2011] EWCA Civ the
Court of Appeal held (without deciding the point finally):
“a line of more recent Strasbourg authorities supports a wider view of
article 10, emphasis being placed on the words "regardless of frontiers.
Thus in Cox v Turkey [2010] Imm AR 4, the court held that article 10 was
engaged by the ban on the re-entry of a US woman who had expressed
strong views on issues of Kurdish assimilation and the treatment of
Armenians. The court mentioned a recent case (Women On Waves v.
Portugal, no. 31276/05 3rd Feb 2009) in which it had –
44
"… examined a ban imposed by the Portuguese authorities on a ship
whose crew was about to launch a campaign in Portugal in favour
of the decriminalisation of abortion. The ban which effectively
prevented the ship from entering Portuguese territorial waters was
held by the Court to amount to an interference with the applicants'
right to freedom of expression." (para 29)
Reference was also made to a case to similar effect under article 9:
Nolan v Russia App 2512/04 6th July 2009). The judgment in Cox
continued:
"31. The Court considers that the ban on the applicant's re-entry is
materially related to her right to freedom of expression because it
disregards the fact that Article 10 rights are enshrined "regardless
of frontiers" and that no distinction can be drawn between the
protected freedom of expression of nationals and that of foreigners.
This principle implies that the Contracting States may only restrict
information received from abroad within the confines of the
justifications set out in Article 10 § 2 (Autronic AG v. Switzerland, 22
May 1990, §§ 50 and 52, Series A no. 178). The scope of Article 10 of
the Convention includes the right to impart information. The
applicant is precluded from re-entering on grounds of her past
opinions and, as a result, is no longer able to impart information
and ideas within that country. In light of the foregoing, the Court
concludes that there has been an interference with the applicant's
rights guaranteed by Article 10 of the Convention. The Court will
thus proceed to examine whether that interference was justified
under the second paragraph of that provision." (para 31)…
the modern jurisprudence tends to support the approach adopted by
this court in Farrakhan, The judgments in Women on the Waves and
Cox provide persuasive support for the argument that article 10, at
least, is not limited by the same strict principle of territoriality as
applies to other parts of the Convention. That view is reinforced by
Mr Eadie's concession. It is difficult to see any logic in treating an
45
applicant less favourably because he takes the sensible course of
applying for entry clearance from abroad, rather than simply
arriving at border control at Heathrow…”.
92. Contracting states are bound to secure the rights and freedoms under the
ECHR to all persons under their actual authority and responsibility, whether
that authority is exercised within their own territory or abroad: Cyprus v
Turkey (1976) 4 EHRR 482 , 586, para 8.
93. In Smith v Ministry of Defence [2013] 3 WLR 69 it was held that a state's
agents and those whom they affected when exercising authority and control
on the state's behalf were brought within the state's Article 1 jurisdiction by
reason of this principle.12 The list of circumstances in which control can be
exercised is not closed.
94. Consequently, Article 10 is engaged and/or interfered with in the present case,
even though the Applicants are US citizens, due to the following reasons:
1. The Applicants were due to visit the UK and meet UK citizens whose
Article 10 rights are engaged and evoked.
2. The Second Claimant has a substantive connection with the UK; having
already visited the UK without any obstruction.
3. The Applicants have a large body of supporters here in the UK who have
signed a petition in the thousands seeking the entry of the Applicants into
the UK so that they can receive and impart with their ideas.
4. The decision of the Secretary of State must be exercised consistently with
the Convention, and the act of exclusion amounts to the exercise of
authority or control over the Applicants in the US, thereby bringing them
within the jurisdiction for the purposes of convention rights.
12This is consistent with Isa v Turkey (2004) 41 E.H.R.R 567, at 74 where the Court held
that jurisdiction arises whenever victims of human rights abuses are under the control of the
state operating through its agents.
46
5. The Applicants’ exclusion amounts to a substantial interference with their
right to freedom of expression (see para 95 below).
Prescribed by law
95. The interference in question must have some basis in domestic law, and the
phrase "law" covers not only statute law, but also unwritten law and/or a
regulation (Sunday Times v UK (No.1) App. 6538/74, para 47; Golder v UK
(1975) 1 EHRR 524, para 45; Silver v UK [1979] 2 EHRR 245, para 86).
96. The law must be adequately accessible: the citizen must have an indication
that is adequate in the circumstances of the rules applicable to a given case.
A norm cannot be regarded as law unless it is formulated with sufficient
precision to enable the citizen to regulate his conduct: he must be able if
need be with appropriate advice to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may entail
(Sunday Times v UK, para 49).
Is the exclusion prescribed by law?
97. The Applicants contend that the decision to exclude them does not pass the
prescribed by law test for the following reasons:
1. For the reasons referred to above, the exclusion was an abuse of power.
2. For the reasons referred to above, the Applicants have been excluded on
the basis of a policy which is unlawful and has not been approved by
Parliament. The decision of the Secretary of State is based on a
misapplication of the rules and the policies. The decision, therefore,
has no legal basis in domestic law in any event (see Silver v UK, para
86).
47
3. The Applicants’ views on Islam, on the Secretary of State’s own evidence
referred to above, amount to nothing more than criticism of Islamic
extremism. Such views are permissible under the common law (see
Redmond v Bate). The Applicants’ views are sanctified by Parliament
under section 29 J of the Race and Religious Hatred Act 2006. In order
for the Applicants to be deprived of the protection under s. 29J, they
have to advocate violence towards Muslims. But the available materials
placed before the Secretary of State referred to above show that the
Applicants do not advocate violence towards Muslims. They seek to
criticise the extremist ideology directed towards the West and all people
targeted by Jihad in particular Jews, Christians, Copts, Hindus, Bahais,
Buddhists, and Sikhs.
4. The Unacceptable Behavours policy introduces an open ended
absolute discretion and infringes the requirement of certainty in that
“it does not provide for the scope of the discretion and the manner of
its exercise with sufficient clarity, having regard to the legitimate
aim of the measure in question, to give the individual in question
adequate protection against arbitrary interference”: Gillow v United
Kingdom (1989) 11 EHRR 335 at 51. Para 47 above is repeated. This
undermines the objective of formulating the list in the first place,
which was to clarify the Home Secretary’s powers to deal with the
prevention of terrorism under the “Prevent” strategy. Rather, it allows
the Secretary of State to exclude at will through use of powers used
and intended to curtail terrorism rather than free speech. The
operative term “express views which may lead to intercommunity
violence” is not defined. It does not distinguish between permissible
speech under s.29J on the one hand and impermissible speech such
as glorification of terrorism on the other. A key problem with the term
is that it fails to distinguish between social or even academic
discussions about the role of violence, on the one hand, and actual
exhortations to violence, on the other. The policy could be used to
48
exclude legitimate historical and theological discussions concerning
the basis of Jihad. Open discussion and critical thought in this area is
particularly required at present, and the contested rules run directly
counter to this social need. The operative term in question captures
forms of expression which may offend and disturb, which are yet
entirely legitimate under the English common and statute law. This
term, moreover, fails to take into account the reasoning of the House
of Lords in Laporte and explain that there has to be a direct and
immediate connection with the expression and the imminent
violence.
A legitimate exclusion cannot be prematurely achieved without
identifiable evidence indicating that law enforcement cannot contain
actual or imminent violence. The operative degree of threat is,
moreover, left undefined. It is evident from discussions in cases
involving national security issues concerning exclusion under the
2006 EEA regulations that nothing less than “a serious risk to public
security” would suffice and the evidence establishing that risk must
be “cogent”.13 In the policy, it is not possible to discern whether the
threat has to be a serious threat or something less than serious would
suffice, which renders it impossible to foresee with appropriate
advice, to a reasonable degree, the consequences which the
Applicants’ action may entail. For all these reasons, the policy does
not, therefore, pass the prescribed by law test.
In order to pass this test the policy must follow the Johannesburg
principles, adopted by a group of experts from around the world.
These show that the restrictions on freedom of expression in the
name of national and public security may be imposed only where the
13 See Bonsignore v Stadt Koln [1975] ECR 297, page 316 column 1 and page 315 column
1, para 3.
49
speech was intended to incite imminent violence. There must exist a
direct and immediate connection between the expression and the
likelihood or occurrence of such violence. In order to comply with the
certainty principle, the policy needs to be redrafted with
Parliamentary approval so that it reads:
“may lead to community violence means:
Expression is intended as a threat to national and/or public
security only if a government can demonstrate that:
1. The expression is intended to incite imminent violence;
2. It is seriously likely to incite such violence; and
3. There is a direct and immediate connection between the
expression and the serious likelihood or occurrence of such
violence”.
Is the decision necessary in a democratic society? Is the decision proportionate?
98. Whether measures are necessary and proportionate in the instant case is, as
the Court of Appeal held in Naike, for the judgment of the Court (see para 79
above). The word necessary entails a consideration of whether: (i). the
interference corresponds to a pressing social need; (ii). is proportionate to
the legitimate aim pursued; and (iii). the reasons given by the national
authorities for the measure are relevant and sufficient under Article 10 (2)
(Sunday Times v UK, para 62). In assessing whether the interference
complained of was based on sufficient reasons which are rendered necessary
in a democratic society, account must be taken of the public interest aspect of
the case (para 65). The Applicants contend that the decision to exclude them
is not necessary because it is: (1) disproportionate; (2) does not correspond
to a pressing social need; (3) is based on reasoning which is wholly
50
unsatisfactory; (4) there exists no public interest in exclusion.
99. Given that the state has misused the prevent policy through the Applicants
exclusion, it is has undermined the fight against terrorism and thereby
compromised public trust and confidence in anti terrorism law.
Consequently, it is not open to the Secretary of State to rely on any of the
exceptions in Article 10 (2).
100. Contrary to the Secretary of State’s response to the pre-action letter, the act
of laying flowers at the site that Drummer Lee Rigby was murdered, and
receiving and imparting ideas with others in the UK through that method, is
not something which can be performed through alternative means from the
US or elsewhere. The form and method of expression in the instance case
constitutes the very essence or quality of the expression which the
Applicants seek to exercise. This is a case where that essence is destroyed
through the exclusion. Contrary to the Secretary of State’s post decision
letter, the restriction on the Applicants’ right is total or at the very least
extremely substantial. The Secretary of State’s contention was in any event
rejected by Laws LJ in Tabernacle v Secretary of State [2009] EWCA Civ
23. In that case, bye laws preventing the maintenance of the long-standing,
one weekend a month, Aldermaston Women’s Peace Camp (protesting on
Government-owned open land against nuclear weapons) were held to breach
the protesters’ Convention rights. As Laws LJ said at para 37, “the camp has
borne consistent, long-standing, and peaceful witness to the convictions of
the women who have belonged to it”, and, to the protesters, ‘the manner
and form” is the protest itself”. The analogy between that and the present
case is telling. Laws LJ proceeded to hold that the Secretary of State “must
demonstrate a ‘substantial objective justification… amounting to an
undoubted pressing social need for exclusion”. This is consistent with the
reasoning of the European Court of Human Rights in Ashingdale v The
United Kingdom (1985) 7 EHRR 528 at para 57 where the Court held:
51
“Nonetheless, the limitations applied must not restrict or reduce the
access left to the individual in such a way or to such an extent that the
very essence of the right is impaired…”.
101. It is to be noted that following the reasoning of their Lordships in R v
Laporte, state authorities are under a positive duty to ensure that lawful
assemblies take place without interference from third parties. As Sedley J
(as he then was) held in Redmond v Bate at para 18:
“If the threat of disorder or violence was coming from passers-by who
were taking the opportunity to react so as to cause trouble (like the
Skeleton Army in Beatty v Gilbanks), then it was they and not the
preachers who should be asked to desist and arrested if they would
not”.
102. Even if the decision in question was prescribed by law (which is denied), it
is not necessary in a democratic society on the grounds of one or more of
the considerations stated in Article 10 (2). The Applicants’ views do not
constitute hate speech, since neither of their views promote violence.
Rather the reverse: their views constitute speech which is in the public
interest, necessary to the proliferation of a public debate on whether Islam
is compatible with Western values such as liberty, equality and the rule of
law. Their views are permissible under section 29J which restricts the scope
of the derogation under Article 10 (2). Their exclusion was at the behest of a
small but obviously influential number of individuals.
103. The Applicants’ views are such that they are moderate compared to the
views of other organisations and individuals that have voiced their concerns
about Muslims in the UK, including the British National Party, in relation to
which the government has been unable to take any lawful repressive
measures. As the European Court of Justice ruled in Adouhi and Cornuaille
v Belgian [1982] 3 C.M.L.R. 631, at para 9:
52
“…. a member – State may not, by virtue of the reservation relating
to public policy … expel a national of another member – State from
its territory or refuse him access to its territory by reason of conduct
which, when attributable to the former State’s own nationals, does
not give rise to repressive measures or other genuine and effective
measures intended to combat such conduct”.
104. It is not surprising, therefore, that the police submissions document referred
to above was concerned that the minority Jewish community in the UK is
more likely to be offended through the perception of double standards. In
recent times, the UK government was forced to allow Geert Wilders entry
into the UK. The government had sought to exclude him from the UK on the
basis that his anti-Islamic views would create offence to Muslims. The ban
was overturned on appeal. The protests which took place upon the arrival of
Mr Wilders was peaceful and no violence ensued (see Tab 9, 402).
105. In Gunduz v Turkey (2005) 41.E.HR.R. 5, the issue regarding freedom of
expression arose in the context of incitement to racial hatred and hostility. A
leader of the Islamic sect took part in a live television broadcast transmitted
by a private channel. The purpose of the programme was to discuss the sect,
whose members were attracting public attention. The following April,
Istanbul State Security Court found him guilty of making statements during
the broadcast inciting people to hatred and hostility on grounds of religious
difference. In particular, it found that he had described Turkish society as
"impious", fiercely criticised secularism and democracy, and called for the
introduction of a regime based on Sharia. He was sentenced to two years
imprisonment and a fine. His conviction was upheld by the Supreme Court.
Relying on article 10 of the Convention, the applicant claimed that his
conviction had violated article 10 of the ECHR and claimed just
satisfaction. The ECHR ruled: 1. The purpose of the discussion was to determine the compatibility of
his concept of Islam and Western Values. The subject had been widely
53
discussed in the media and concerned a matter of general interest, a field
in which restrictions on freedom of expression called for strict
interpretation. The broadcast had been designed to prove an exchange of
views and to inform the public about an issue of great interest for Turkish
Society. The Applicant's views which expressed profound dissatisfaction
with contemporary Turkish institutions such as principles of secularism
and democracy could not be regarded as an appeal to violence or as hate
speech based on religious intolerance (paras 43-44).
2. Although it was difficult to declare respect for democracy and human
rights while supporting a regime based on Sharia, the mere fact of
defending Sharia, without calling for violence in order to establish it,
could not be regarded as hate speech. The Applicant’s well known
extremist views in that case were counterbalanced by the intervention of
other participants and were expressed in the context of a multi-sided
debate in which he was actively participating. The need for restriction was
not convincingly established (para 51).
106. In Piermont v France (2003) 37 E.H.R. 301, the applicant, a German MEP,
visited the French Polynesia at the invitation of a local politician and took
part in a pro-independence and anti-nuclear demonstration. As she was
about to leave, she was served with an order for her expulsion and
exclusion. She was thereafter excluded from New Caledonia. She
complained that the measures infringed her freedom of expression,
contrary to article 10. She also complained of discrimination contrary to
article 14 taken in conjunction with article 10 and contended that the
measure infringed her freedom of movement, contrary to article 2 of
Protocol 4. The ECHR found for her on all points and held:
1. Freedom of expression constitutes one of the essential foundations
of a democratic society, 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 which offend, shock or
54
disturb. Such are the demands of pluralism, tolerance and
broadmindedness without which there is no democratic society. A
person opposed to official ideas and positions must be able to find a
place in the political arena. While freedom of expression is important
for everybody, it is especially important for an elected
representative of the people. Accordingly, interferences with his or
her freedom of expression call for the closest scrutiny on part of the
Court (76).
2. Although the political atmosphere prevailing in Polynesia and the
prospect of two sects of elections are matters of some weight and the
applicant had been requested to exercise discretion when speaking in
public, her utterances were made during a peaceful, authorised
demonstration. At no time did she call for violence or disorder. She
spoke in support of the anti-nuclear and independent demands made
by several local parties and therefore contributed to a democratic
debate. Moreover, the demonstrations did not follow by disorder and
the Government did not show that the stances taken up by the
applicant caused any unrest. Accordingly, a fair balance was not
struck between on the one hand, the public interest requiring the
prevention of disorder and the upholding of territorial integrity and,
on the other, the applicant's freedom of expression. Since the measure
was not necessary in a democratic society (77- 78) .
107. In Dağtekin v. Turkey (no. 36215/97) (Violation Article 10), the applicant,
Hasan Dağtekin, was a Turkish national who was born in 1959 and lived
in Diyarbakır. At the material time he was the owner and editor of the
"Dilan" publishing house. In 1994, he published a novel written by Rıza
Çolpan, entitled "Xide Naxirvan U Tevkustina Dersim" (Xide Naxirvan
and the Genocide of Dersim). The latter criticised the pressure that
Turkey had allegedly exerted on the Kurdish people throughout history.
As a result of its publication, Ankara State Security Court, in a judgment of
14 November 1995, instructed the applicant to pay a fine for
disseminating separatist propaganda and ordered the confiscation of the
55
disputed book. That verdict was upheld by the Court of Cassation.
108. The applicant submitted that his criminal conviction had infringed his
right to freedom of expression, relying on Article 10 (freedom of
expression). The Court held that the grounds put forward by the Turkish
courts could not in themselves be considered sufficient to justify the
interference with the applicant's right to freedom of expression. Although
certain particularly acerbic passages in the book presented an extremely
negative picture of the history of the Turkish State, thus giving the story a
hostile connotation, they did not incite the use of violence, armed
resistance or insurrection; nor was the book an example of hate speech.
The Court considered that the applicant's sentence was disproportionate
to the aims pursued and, consequently, not "necessary in a democratic
society". Accordingly, it concluded unanimously that there had been a
violation of Article 10 and awarded Mr Dağtekin EUR 1,500 in respect of
pecuniary damage, EUR 2,000 in respect of non-pecuniary damage, and
EUR 2,000 for costs and expenses.
109. The Applicants’ case is analogous to the above cases with the effect that
the decision to exclude him from the UK is not necessary within article 10
(2).
110. On the evidence referred to above, the Applicants do not make a call for
violence. Both engage in theological discussion in a non-violent manner.
There was no violence that had unfolded on the streets that could have
led to inter community violence. The police are capable of controlling the
same through law enforcement. The state has not complied with its
positive obligation to ensure that the Applicants were allowed to lawfully
assemble and express their views on issues of public importance without
interference from minority groups. There is no casual connection
between the Applicants’ actions and the potential violence alleged. The
56
case of Karatas v Turkey14 is instructive. In that case it was held that
there was a violation of article 10 of the ECHR where the Claimant had
been convicted of publishing poetry which allegedly condoned violence
and glorified acts of terrorism. The ECHR held that the conviction
constituted a violation of the Applicants right to freedom of expression.
Emphasising that there was no causal connection between the poems
and violence, the Court held:
“There is little scope under Article 10 (2) of the Convention for
restrictions on … debate on matters of public interest… In a
democratic system the actions or omissions of the government must
be subject to the close scrutiny not only of the legislative and judicial
authorities but also of the public opinion... Even though some of the
passages from the poems seem very aggressive in tone and to call for
the use of violence, the Court considers that the fact that they were
artistic and of limited impact made them less a call to an uprising
than an expression of deep distress”.
111. The Second Applicant is a respected Islamic scholar having taught
seminars on Islam and Jihad for the United States Central Command,
United States Army Command and General Staff College, the U.S. Army’s
Asymmetric Warfare Group, the FBI, the Joint Terrorism Task Force, and
the US intelligence community.
112. The First Applicant is also a respected author and human rights activist,
having published innumerable books on the topic of Islamic extremism,
for which she has received glowing reviews.
113. The US is the Applicants’ home country. There is no evidence that the
Muslims in that country have been violent as a result of the Applicants’
views and/or conduct. Nor is there evidence that the Secretary of State has
directed her mind to this issue at all.
14 8 July 1999, Application No. 23168/94, paras 50-52.
57
114. The evidence accepts that the First Applicant “advocates defence against
the spread of extreme Islam”. In relation to the Second Applicant, there
exists the same acceptance in the evidence.
115. The Applicants’ criticism is directed to radical Muslims who pose a threat
to civilisation. Both Applicants draw a distinction between Muslims and
Islamic extremism. The Applicants have openly on the materials called for
Muslims to stand with them in their fight for freedom. A former Muslim
apostate girl was assisted by the First Applicant, which enabled her to
escape from her violent family.
116. In any event, the Applicants’ comments fall within section 29J and cannot
found a basis to exclude.
117. The Applicants engage in a theological debate which highlights how
radical and extreme Islam poses a threat to Western civilisation through
use of the concept of Jihad against the unbelievers, in particular Jews,
Copts, Hindus, Buddhists, Bahais, apostates from Islam, and gays. Such
criticism is justified in the public interest because it promotes a significant
debate regarding the parts of Islam acceptable in a Western democratic
society. This is particularly important in light of terrorist activities
committed in the name of Islam in Israel, the Palestinian Authority, and
elsewhere around the world, including the UK and the US.
118. On the Secretary of State’s evidence, the Second Applicant’s blog “won the
people’s choice blog award”, and, therefore, there was a countervailing
public interest in the Applicants’ views.
119. The complete exclusion on the Applicants was unnecessary, as the police
could have evoked their powers to exclude from certain areas, and confine
the visit to one which was a private one, if necessary. The evidential
material placed before the Secretary of State failed to assess whether the
police powers would be sufficient to deal with any alleged threat of inter
community violence. It is to be noted that, when Mr Wilders visited the
UK, it was reported that the police ensured that groups were kept separate
(Tab 9, 402). The same could have been achieved in the present case.
58
120. The decision to exclude the Applicants is heavily influenced in both cases
by the evidence that certain Muslims will be offended if the Applicants are
allowed to espouse their views which are insulting to them. But this
ignores that the law permits expression which is offensive. It, moreover,
seeks to trivialise the fact that Muslims will be protected through law
enforcement in the UK.
121. A message may be offensive and even insulting to moderate Muslims. But
Parliament has recognised that speech that merely insults people on the
basis of their religion is part of a legitimate public debate in a free and
democratic society: see s.29J and per Sedley LJ in Redmond v Bate for the
common law position. Indeed, “[T]o present it as a virtue [that the
common law of England already accepts the standards of Article 10] is to
trade on the widespread but mistaken view that accommodating
international human rights jurisprudence is the same thing as respecting
human rights. There could come a point, indeed, where it would be better
to have no Convention on Human Rights at all than one that can be used
to legitimate and congratulate any decision under the sun”.15
122. The Applicants’ message is far from offensive. It cannot in any event form a
basis to exclude. For such views are relevant to matters within the people's
collective decision making authority, including immigration policy,
whether there is a role for Sharia in Britain, and the attitude state schools
and other public institutions should adopt towards Muslim customs,
including the veiling of women and girls. It is thus a perspective that,
despite the offence or insult it may cause, must be allowed to be expressed
in a democratic society on the basis that it is necessary to the proliferation
of a public debate in a society where bad ideas area superseded by better
ones. The Applicants’ views are relevant to current rule making and policy in
the UK, such as for instance, Baroness Cox’s Sharia Law Bill to combat
Islamic tribunals in the UK.16
15 J. Gardner, Freedom of Expression in C. McCrudden and G. Chambers (eds.), Individual
Rights and the Law in Britian (OUP, 1994), pp. 209-238, at p 236.
16 The Arbitration and Mediation Services (Equality) Bill, HL Bill 7; 55/2; 10th May 2012.
59
123. For all the obvious hollowness of the decision of the Secretary of State, it
amounts to no more than the notion that the right to free speech must be
held in balance with the requirement to avoid offence, even if it means
making a decision contrary to the law. That is wrong. There is no right to
have one's emotional sensibilities protected: it is not the business of
government to legislate for such feelings.
124. It cannot be proportionate, as required by Article 10 of the ECHR to
conclude in the abstract, in advance, and without first trying reasonable
security measures, that the Applicants’ conduct will cause reactions that
threaten community harmony.
125. Indeed, Part II of the Public Order Act 1986 contains a requirement that
there be advance notification to a police station of any public processions
intended to demonstrate against any person or body of persons (see
section 11 of the Public Order Act 1986). If the senior police officer
believes that there would be serious public disorder, serious damage to
property or serious disruption to the life of the community, he may give
directions imposing on the persons organising or taking party in the
procession such conditions as appear necessary to prevent such disorder,
damage, disruption or intimidation (see section 12 of the Public Order Act
1986). Measures to prohibit any public procession are also available (see
section 13 of the Public Order Act 1986). No such measures were taken or
felt necessary because no procession was taking place in opposition to the
Applicants’ arrival.
126. The above analysis accords with the principles of tolerance and respect.
Certain Politicians may well seek to suppress insulting speech in the
sense defined in section 29J for reasons which have more to do with
electoral advantage than a genuine commitment to the values of tolerance
and respect.
60
127. Indeed, values of tolerance and respect can be placed in jeopardy where
a powerful minority acting through their political representatives invoke
"offence" to stifle majority or unpopular viewpoints.
128. The temptation to acquiesce in the official suppression of views with
which we disagree or even loathe, because their public expression offends
our sensibilities, should additionally be resisted. For on a subsequent
occasion, it may be our speech or that belonging to persons with whom we
agree that is targeted.
129. The causing of offence rarely constitutes a sound basis for restraining
speech or conduct. Unfortunately, it is the folly of human conceit that
people take offence at many socially useful or even necessary activities. To
offer an example: undoubted offence would have been caused as recently as
several decades ago in parts of the United States by couples of mixed colour
strolling arm in arm down the main street. The position is now different.
130. If suppression of speech were allowed merely to prevent offence to
religious belief, expression is liable to be curtailed by reference to the
standards of some of the least tolerant, most easily outraged members of
society. Such a basis for prohibiting expression produces an ironic result
for liberal democracies. In trying to accommodate differences out of a
commitment to pluralism and the equal worth of alternative conceptions
of good life, the lack of tolerance on the part of certain of the
accommodated groups provides the basis for curtailing the freedoms of the
rest.
131. It follows, therefore, that the Applicants’ speech cannot be restricted. For a
general prohibition against hurting religious feelings would put public
discourse at the mercy of the sensitivity of religious groups, and
particularly the most militant amongst them.
61
132. The Applicants’ case is similar to a line of cases above where the ECHR
found a breach of article 10 of the ECHR in circumstances where the
views of the applicants in those cases could not be regarded as hate speech
and the measures in those cases were held to be disproportionate.
133. The cases of Otto Preminger Institut v Austria (1994) 19 EHRR 34 and
Wingmore v UK 1996) 24 EHHR 1 can be distinguished.
134. In Wingmore v UK, the ECHR upheld a refusal by the relevant
broadcasting authority to classify a video depicting St Theresa in a state of
sexual ecstasy as consistent with article 10 on the ground that it was
blasphemous. The Court held that the law of blasphemy was sufficiently
clear to satisfy the requirement that it should be prescribed by law. The
UK has, however, now abolished blasphemy after the publication and
subsequent furore over the book: Satanic Verses (see Criminal Justice and
Immigration Act 2008, s. 79). Consequently, this authority has no
relevance. In any event, the decision proceeds on the basis of a concession
(para 43).
135. In Otto Preminger Institut v Austria, the Court upheld the seizure and
forfeiture of a film which portrayed the founding figures of Christianity
(and some other religions) in a deeply offensive manner. Again that
decision proceeds on the basis that (1) the video was not in circulation and
(2) the laws of blasphemy applied. In the present case, the Applicants’
views were widely available to the world at large prior to the Applicants’
exclusion, the laws of blasphemy do not apply, and the Applicants enjoy
protection under section 29 J. Otto Preminger was criticized in I.A. v
Turkey (2007) 45 EHRR 30, a case concerning a criminal conviction for
blasphemy. In dissenting judgments Judges Costa, Cabral Barretto, and
Judgwiert made the following points: that a democratic society is not a
62
theocratic one, and that in their view, it placed too much emphasis on
conformism of freedom of the press (paras 01-5-8).
Article 11 of the ECHR
136. Article 11 concerns freedom of assembly and association. It states:
"Everyone has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form and to join trade
unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than
such as are prescribed by law and are necessary in a democratic society
in the interests of national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article shall not
“Prevent” the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State".
137. Article 11 is engaged for the same reasons as those that apply to Article 10.
138. In Sergey Kuznetsov v Russia, (App. No. 10877/04) [2008] ECHR 1170,
the Strasbourg Court held:
“… the right to freedom of assembly covers both private meetings and
meetings on public thoroughfares, as well as static meetings and public
processions; this right can be exercised both by individual participants
and by those organising the assembly….”
139. Article 11 also carried with it the positive obligations which require a state
to take steps to ensure that other individuals or groups do not interfere
with the right to peaceful assembly by violent counter demonstrations:
Platform Artzefur das Leben v Austria (1988) 13 E.H.R.R 204, para 32;
63
Wilson v United Kingdom (2002) 35 E.H.R.R. 20, 47-48. As the Court
held in Platform Artzefur:
“A demonstration may annoy or give offence to persons opposed to the
ideas or claims that it is seeking to promote. The participants must,
however, be able to hold the demonstration without having to fear that
they will be subjected to physical violence by their opponents; such fear
would be liable to deter associations or other groups supporting common
ideas or interests from openly expressing their opinions on highly
controversial issues affecting the community. In a democracy the right to
counter demonstration cannot extend to inhibiting the exercise of the
right to demonstrate…
Genuine, effective freedom of peaceful assembly cannot, therefore, be
reduced to a mere duty on the State not to interfere… Article 11
sometimes requires positive measures to be taken, even in the sphere of
relations between individuals, if need be”.
140. Clearly, the Applicants’ exclusion from the UK constitutes an interference
with Article 11 of the ECHR. For the reasons referred to in relation to
Article 10, the interference was not justified particularly since (i) there was
no exclusion of EDL members who were able to assemble; (ii) there was
no situation that was about to descend into violence; (iii). if there were
such a situation, under the Public Order Act there were measures that
could, and should have been taken to ensure that other individuals did not
interfere by way of violent demonstrations in a peaceful assembly on
Armed Forces Day; (iv). no incident of out of control violence was in any
event reported; (v). the restriction was not otherwise necessary or
proportionate.
Article 9 of the ECHR
141. Article 9 in so far as material states:
“Everyone has the right to freedom of thought, conscience….; this right
includes.. freedom, either alone or in community with others and in public
64
or private, to manifest his …belief, in … practice..
Freedom to manifest one’s …beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of others”.
142. Article 9 applies to the Applicants who are US nationals for the same reasons
referred to in relation to Article 10.
143. Article 9 applies to the present case. This is because it involves the Applicants’
important freedom to hold their beliefs and conscience against Islamic
extremism by laying a wreath at the memorial site of soldier Lee Rigby in
community with others irrespective of whether their beliefs amount to a
religious belief: see the decision of the House of Lords in R Williamson) v
Secretary of State [2005] 2 AC 246, para 16.
144. The Applicants’ right to hold their belief and conscience is absolute and cannot
be qualified: R (Williamson) v Secretary of State. As Professor T.R.S Allan
aptly put it in his book Constitutional Justice: A Liberal Theory of the Rule of
Law (Oxford University Press 2003) at page 7-8:
“The central role of conscience in the identification and interpretation of
law demands recognition of a limited, but absolute, sphere of freedom of
speech...... the state cannot legitimately prohibit the advocacy of illegal
action, in disobedience to its demands, at least where the relevant measures
are resisted on conscientious grounds. Although the state may properly
punish civil disobedience, when necessary for the common good, it may not
curtail the citizen’s right to speak in defence of such conduct or hear the
argument in favour of it. No state can acknowledge a right to disobey,
whenever its demands violate a citizen’s sense of justice; but equally no one
65
who accepts the responsibility that the rule of law imposes can surrender
moral judgment to the state, however benign he judges its actions in normal
circumstances or over the main areas of its jurisdiction”.
145. The exclusion orders clearly interfere with the Applicants’ right to manifest
their belief thus defined, since they are unable to hold their belief as described
above.
146. In the case of Father Basil17, the Strasburg Court condemned as a violation
of Article 9 the failure of the Georgian authorities to ensure tolerance of the
exercise by the applicants (a group of Jehovah’s Witnesses) of their right to
freedom of religion in the face a violent and outrageous attack on
worshippers and their place of worship by Father Basil (a defrocked
Orthodox priest) and a group of extremists.
147. It is submitted that the same ought to apply to the present case where the
Secretary of State has failed to ensure tolerance by ensuring that law
enforcement was available to combat the alleged threat of violence arising
from the Applicants’ holding their belief and thought as described above.
148. Accordingly, there exists an actionable breach of Article 9 of the ECHR.
Article 14 of the ECHR
149. Article 14 of the ECHR provides:
“The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other
17 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v Georgia, (App.
71156/01), 3 May 2007, (2008) 46 EHRR 613.
66
status".
150. Article 14 provides for a right not to be discriminated against only in respect
of the other rights laid down in the Convention and its Protocols.
Consequently, it does not provide a general free-standing prohibition on
discrimination and does not apply unless the facts at issue fall within the
ambit of another Convention right. The application of Article 14 does not,
however, require a violation of another substantive article of the Convention.
The ECHR has frequently found violations of Article 14, read in conjunction
with another article of the Convention, without finding a violation of the latter.
(The Applicants, in any case, call for no discrimination against Muslims or
anyone else).
151. The test for determining whether there has been a violation of Article 14 is
not entirely clear. For some time, the favoured approach was the following
framework stated by Brooke LJ in Michalak v London Borough of
Wandsworth [2002] EWCA Civ 271, para 20 (as refined in later cases):
(1). Do the facts fall within the ambit of one or more of the substantive
convention provisions (for the relevant rights. see s. 1 (1) of the HRA 1998)?
(2). If so, was there different treatment in respect of that right between the
complainant on the one hand and other persons put forward for comparison
("the chosen comparators") on the other?
(3). Is the difference in treatment based on one of the grounds proscribed -
whether expressly or by inference - in Art. 14?
(4). Were the chosen comparators in an analogous situation to the complainant’
situations?
(5). If so, did the difference in treatment have an objective and reasonable
justification: in other words, did it pursue a legitimate aim and did the
differential treatment bear a reasonable relationship of proportionality to the
67
aim sought to be achieved?
152. This framework was applied and thereby approved by the House of Lords in
A v Secretary of State for the Home Department [2005] 2 A.C 68, at para 53.
153. But in R v (Carson & Reynolds) v Secretary of State for Work and Pensions
[2006] 1 AC, the House of Lords cast doubt on the above approach. Their
Lordships particularly criticised the emphasis on comparators, and the
artificial distinction between the question whether the chosen comparators
are in an analogous situation, and the question whether the difference in
treatment is justified.18 In the view of the House of Lords in Carson, if the
difference in treatment is in connection with a Convention right and on a
ground covered by Article 14, then the essential question is simply whether it
withstands scrutiny. Accordingly, it is not necessary to establish an exact
analogy. As Lord Nicholls ruled at paras 2-3:
"2.. In Wandsworth London Borough Council v Michalak [2003] 1 WLR 617,
625, para 20, Brook LJ set out four questions which a court might find it
convenient to consider sequentially when addressing a discrimination claim
under article 14 of the European Convention on Human Rights. Subsequent
judicial observations have been shown that the precise formulation of these
questions is not without difficulty. And at first instance in the Carson appeal
Stanley Burnton J suggested a fifth question should be added to the list: R
(Carson) v Secretary of State for Work and Pensions [2002] 3 All ER 994,
1009, para 51.
3. For my part, in company with all your Lordships, I prefer to keep
formulation of the relevant issues in these cases as simple and non
technical as possible.
Article 14 does not apply unless the alleged discrimination is in connection
18 Paras 3 (Lord Nicholls of Birkenhead), 30-32 (Lord Hoffman), 44 (Lord Rodger), 63-70 (Lord Walker of
Gestingthorpe), 97 (Lord Carswell).
68
with a Convention right and on a ground stated in article 14. If this
prerequisite is satisfied, the essential question for the court is whether the
alleged discrimination, that is the difference in treatment of which the
complaint is made, can withstand scrutiny. Sometimes the answer to this
question will be plain. There may be such an obvious, relevant difference
between the Claimant and those with whom he seeks to compare himself
that their situations cannot be regarded as analogous.
Sometimes, where the position is not so clear, a different approach is called
for. Then the court's scrutiny may best be directed at considering whether
the differentiation has a legitimate aim and whether the means chosen to
achieve the aim is appropriate and not disproportionate in its adverse
impact".
154. It is respectfully submitted that this approach is the correct approach to
follow in the present case and consistent with the House of Lords decision in
AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR
1434 at para 27 where the House of Lords drew attention to the danger of
assuming that two groups are not in an analogous situation just because
there are inherent differences between the two groups. As Baroness Hale
(with whom the rest of the court agreed) ruled at para 27:
"There are, also, as Lord Walker recognised in Carson, dangers in
regarding differences between two people, which are inherent in a
prohibited ground and cannot or should not be changed, as meaning that
the situations are not analogous. For example, it would be no answer to a
claim of sex discrimination to say that a man and a woman are not in an
analogous situation because one can get pregnant and the other cannot.
This is something that neither can be expected to change. If it is wrong to
discriminate between them as individuals, it is wrong to focus on the
personal characteristics which are inherent in their protected status to
argue that their situations are not analogous. That is the essential reason
why, in Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, the
argument that same sex couples were not in an analogous position to
69
opposite sex couples, because they could not have children together, did not
succeed".
155. Articles 9, 10, 11, and 17 of the ECHR are engaged and do not have to be
breached for the purposes of article 14.
156. The difference in treatment is between UK critics who have heavily criticised
Islam and Islamic extremists without sanction and the Applicants as US
nationals.
157. The Applicants contend that other UK nationals such as Douglas Murray,
Melanie Phillips, Paul Weston, Baroness Cox, and Lord Pearson are able to
criticise Islam without sanction. Other critics such as Geert Wilders are able
to express their views within the UK on controversial issues, including Islam,
in what is perceived by some to be an insulting or offensive manner. The
Applicants who are US nationals are precluded from doing the same on the
basis of their nationality even though the Second Applicant has already visited
the UK. The Applicants contend that this constitutes discrimination, contrary
to article 14 of the ECHR, taken in conjunction with Articles 9, 10, 11 and 17 of
the same. The discrimination cannot withstand proper scrutiny.
158. In a speech to supporters at a Yorkshire pub, BNP chairman Nick Griffin,
referred to Islam as a “wicked, vicious faith” that “has expanded from a
handful of cranky lunatics about 1,300 years ago”.19 Muslims are regularly
attacked through views which are anti-Muslim on immigration, the Koran,
Mosques and Muslims generally. Although Mr Griffin and Mr Collette were
tried for public order offences under the Public Order Act 1986, they were
acquitted of all charges charged.20
159. The Applicants do not support Mr. Griffin or his party in any way, but note
19
See pages 163-167 of the bundle.
20 See page 169.
70
that his statements on Islam are more extreme than theirs. These statements have
not led to a successful prosecution against him.
160. More generally, the UK has allowed "the entry in recent years of several
Muslim clerics from Arab countries with a history of inflammatory
statements on terrorism”.21 The Saudi Muslim cleric Mohammed al-Arefe
was admitted into the UK in Spring 2013. He has been banned from
Switzerland. He has said: “Devotion to jihad for the sake of Allah, and the
desire to shed blood, to smash skulls, and to sever limbs for the sake of Allah
and in defense of His religion, is, undoubtedly, an honor for the believer.
Allah said that if a man fights the infidels, the infidels will be unable to
prepare to fight [the Muslims].”22 In August 2013, the UK admitted Muslim
Brotherhood leader Gomaa Amin, despite rampant Muslim Brotherhood
persecution of Coptic Christians in Egypt in the weeks preceding his
admission.23
161. The difference in treatment between the above and the Applicants is because
of the Applicants’ nationality, which amounts to discrimination on one or
more of the prohibited grounds. Nationality is a ground for discrimination
even though Article 14 uses "national ... origin" (see Gaygusuz v Austria
(1996) 23 EHHRR 364, at 41). If the Applicants had expressed the same
statements about Islam as those Muslims referred to above, the Home Office is
unlikely to have taken the decision to exclude them from the UK.
162. There is no legitimate basis for the above discrimination because the
measure is not prescribed by law (see the above analysis). If the decision was
21 See New York, Times Article February 12, 2009, Tab 9, 399.
22 Benjamin Weinthal, “Switzerland bans cleric for anti-Semitic rhetoric,” Jerusalem Post, May
28, 2013, Tab 5, 157.
23 Robert Mendick and Edward Malnick, “Muslim Brotherhood leader Gomaa Amin is in hiding in
London,” Telegraph, August 24, 2013, Tab 9, 404.
71
prescribed by law, the threat would be no different from the threat posed by
the above individuals which can and is managed through law enforcement.
Hence, if there were a legitimate basis for the decision (which is denied), the
discriminatory measure is not proportionate to the aim sought to be realised
and the means used to achieve it. A much more proportionate response
would have been to invoke crowd control measures prescribed by law and/or
use law enforcement agencies to enforce the same. No such measures were
taken. The Applicants repeat the analysis on necessity and proportionality
above.
163. Consequently, the decision in question is discriminatory and contrary to
article 14 taken in conjunction with Articles 9, 10, 11 and 17 of the ECHR.
Irrationality/Wednesbury unreasonable
164. In addition, the Applicants rely on the irrationality and/or Wednesbury
unreasonable ground. For all the reasons referred to above, the decision to
exclude was irrational and/or Wednesbury unreasonable because:
(1) The decision was an abuse of power.
(2) The decision applied the wrong test and misapplied the policy.
(3) The decision was ultra vires, illegal and/or erroneous in law.
(4) The decision actionably infringes the rights of the Applicants;
(5) The Secretary of State was obliged to allow the Applicants entry in the
UK since their actions and views fell within the “Prevent” strategy
and/or gave rise to a legitimate expectation that the Applicants would be
allowed entry into the UK.
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165. The Applicants, therefore, claim the following relief:
(1). A declaration that the decision to exclude them from the UK is
unlawful and/or contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as
incorporated into UK law via the Human Rights Act.
(2). A declaration that the unacceptable behaviours policy is unlawful
and/or ultra vires.
(3). A declaration that the decision to exclude is irrational (Wednesbury
unreasonable) and/or procedurally irregular.
(4). A declaration that the Secretary of State breached the Applicants
legitimate expectations vis-à-vis the “Prevent” strategy and/or Articles 9,
10, 11, 14 and 17 of the ECHR and/or s.3(1) of the Immigration Act 1971.
(5). A Quashing order depriving the decision to exclude of its effect
retrospectively on the basis that the decision is ultra vires and, therefore,
a nullity, or prospectively on the basis that the decision is intra vires but
erroneous in law.
(6). Any order that the Court thinks fit.
ARFAN KHAN
Counsel for the Applicants
4-5 Gray’s Inn Square (12/9/2013)
DR ABHIJIT PANDYA (Senior Consultant)
Christian Lavergne
Solicitors