The making of an exclusion order against a person suspected of being concerned in acts of terrorism without first allowing him to make representations objecting to the order and to be interviewed by a person nominated by the Home Secretary was a breach of European Community law but it was not a sufficiently serious breach to justify a claim for damages.
The Court of Appeal refused an application by John Gallagher for leave to amend his application for judicial review against the Home Secretary in order to add a claim for damages.
The application followed a decision in Mr Gallagher's favour by the European Court of Justice, on 30 November 1995, that in passing the Prevention of Terrorism (Temporary Provisions) Act 1989 the UK failed to give effect to Council Directive 64/221/EEC with the result that he was, as he claimed, unlawfully excluded from the UK.
Robin Allen QC, Peter Duffy and Tim Eicke (Bindman & Ptrs) for the applicant; David Pannick QC and Mark Shaw (Treasury Solicitor) for the respondent.
Sir Thomas Bingham MR said that in 1983 Mr Gallagher had been sentenced in the Republic of Ireland to three years' imprisonment for possession of two rifles for unlawful purposes. After his release, he came to the UK to work. On 25 September 1991 he was arrested and detained at Paddington Green police station under section 14 of the 1989 Act. On 27 September the Home Secretary made an exclusion order against him under section 7 and Schedule 2 of the Act.
Mr Gallagher was informed of his right to make written representations to the Home Secretary setting out any objections to the order and to request a personal interview with a person nominated by the Home Secretary, but for pressing personal reasons Mr Gallagher consented to his removal and was flown to Ireland the next day.
On 6 December 1991, at his request, Mr Gallagher and his solicitors attended at the British Embassy in Dublin and made oral representations to a person nominated by the Home Secretary. On 10 March 1992, the Home Office informed Mr Gallagher that the Home Secretary had considered his representations and the report of the nominated person but had decided not to revoke the exclusion order.
Mr Gallagher applied for judicial review. The matter was referred to the European Court which ruled that, save in cases of urgency, the making of an exclusion order should follow, and not precede, the making of representations by, and the interviewing of, a person at risk of exclusion.
It was a cardinal principle of Community law that the laws of member states should provide effective and adequate redress for violations of Community law by member states where these resulted in infringement of specific indi- vidual rights conferred by Community law.
The law of the Community on this subject was still at a formative stage but it appeared that the present case was plainly one in which a member state had incorrectly transposed a Community directive into national law and therefore that, in accordance with the European Court's rulings in Ex parte Factortame (No 4)  2 WLR 506 and Ex parte British Telecom (Case C-392/93) (unreported, 26 March 1996), the applicant had to show, inter alia, that the UK's violation of Community law was "sufficiently serious" to warrant reparation.
Mr Gallagher claimed that he had been deprived of procedural safeguards which, had they been observed, might have given him a better chance of securing a favourable result. But there was nothing to suggest that the Home Secretary's decision would have been any different had he received Mr Gallagher's representations and the interviewer's report before making the exclusion order. It was clear that after receiving them, he had considered the case de novo, and that even if the correct procedure had been followed the outcome would have been the same.