Since the Home Secretary is not obliged to give reasons for his decision under section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989 to impose an exclusion order prohibiting a person from entering Great Britain, the court, having no access to the information before the Home Secretary, would, in practice, be unable to review such a decision except in exceptional circumstances.
The Divisional Court dismissed judicial review challenges under domestic law to exclusion orders and referred questions under Community law to the European Court of Justice.
Gerry Adams, the President of Sinn Fein, accepted an invitation by Tony Benn, a Member of Parliament, to address MPs and journalists in the House of Commons.
The Home Secretary made an exclusion order under section 5 of the Prevention of Terrorism (Temporary Provisions) Act 1989 prohibiting Mr Adams entry into Great Britain on the basis that he was concerned with acts of terrorism in Northern Ireland. After hearing Mr Adams' representations the Home Secretary decided not to revoke the exclusion order.
Mr Adams applied for judicial review of both decisions on the grounds that they were unlawful under domestic law as they were made for an improper purpose and unreasonable and unlawful under Community law as his right to move freely under article 8(a)(1) of the Treaty of European Union had been infringed in that no reasons had been given and the three year exclusion order was disproportionate and he should have been allowed to enter the country for a few hours to address MPs.
Robin Allen (Liberty) for Mr Adams; Stephen Richards (Treasury Solicitor) for the Home Secretary.
LORD JUSTICE STEYN, giving the court's judgment, said that it could be a correct inference that if Mr Adams had been allowed to attend Mr Benn's meeting, that could have been a matter of political embarrassment to the Government, notably vis-a-vis the Unionist parties and their support for the Maastricht Treaty.
It would be naive not to infer that Mr Adams had at least substantial connections with the IRA.
A Home Secretary's decision to make an exclusion order was not immune from judicial review, but it was settled law that he was not obliged to give reasons for a decision under section 5 to impose an exclusion order since reasons would usually have to reveal sensitive intelligence information which it would be contrary to the public interest to disclose.
Therefore a decision under section 5(1) would not in practice be reviewable except in the most exceptional circumstances, since one would hardly even know what material was before the Home Secretary.
The exclusion order might have had the effect of saving the Government from political embarrassment, but the court had no means of knowing on what information the Home Secretary acted. The court could not form any judgment that would enable it to conclude that the Home Secretary acted for an improper purpose or that his decision was unreasonable.
Therefore the challenge under domestic law to the lawfulness of the order must be dismissed. The questions whether article 8(a)(1) was merely declaratory, whether the rights under article 8(a)(1) had direct effect, whether the case concerned movement within the UK and if so whether it came within article 8(a)(1) were appropriate to refer to the European Court of Justice.
Article 223 provided that no member state should be obliged to supply information the disclosure of which it considered contrary to the interests of security. If article 8(a)(1) was given a broad interpretation it was, in any event, subject to an implied derogation in respect of the interest of security. The submission that under Community law the Home Secretary must give reasons when he made an order under section 5 was rejected.
A question of law about the proportionality principle in this case involving freedom of speech and national security would be referred to the European Court of Justice.
Although the proportionality principle was part of our law through Community law, the explanations of the principle were not in harmony. It was appropriate that the ambit of the principle be elucidated by a reference to the European Court of Justice. The explanations of the principle spanned a spectrum of views from a narrow doctrine to a de novo review of the administrative decision. There might be better explanations placing the principle between those extremes.
It was not self evident that the principle of proportionality might not need to be adapted to the special circumstances of a case involving a tension between freedom of speech and national security.
In R v Secretary of State for the Home Department, Ex p Adams, the Independent, 27 July 1994, Peter Duffy also appeared for Mr Adams.Reuse content