Law Report: Exclusion order is upheld: Regina v Secretary of State for the Home Department, Ex parte McQuillan. Queen's Bench Division (Mr Justice Sedley), 9 September 1994

Although the reasons for executive decisions which restricted fundamental freedoms and rights should be closely scrutinised by the courts, if such a decision was made in the interests of national security, that was sufficient to preclude any inquiry by the court into the rationality of the decision and the decision had to be accepted by the court without further scrutiny.

Mr Justice Sedley dismissed an application by Kevin McQuillan for judicial review of an exclusion order against him.

The applicant, aged 34, lived in Belfast with his wife and three children. He was a former member of the Irish Republican Socialist Party, a legal organisation. He had been the target of two serious assassination attempts in recent years. His house had been bombed by the Ulster Freedom Fighters.

In 1993 the Home Secretary made an exclusion order against the applicant under the Prevention of Terrorism (Temporary Provisions) Act 1989 prohibiting his entry into Great Britain. The applicant, who wished to move to Britain because of the threat to his life, applied for the order to be revoked. The Home Secretary refused on the ground that the applicant had been concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland, and that his exclusion appeared to be expedient to prevent further acts. He said further detailed reasons were not possible in the interests of national security.

The applicant applied for judicial review of the Home Secretary's decisions on the grounds that (1) they contravened articles 2 and 3 of the European Convention on Human Rights - everyone's right to life shall be protected by law and no one shall be subjected to inhuman treatment; (2) under domestic law, national security did not render the issue non-justiciable and (3) under the European Treaty the applicant could not be denied an unfettered right of free momvement within the UK.

Frances Webber (BM Birnberg & Co) for the applicant; Neil Garnham (Treasury Solicitor) for the Home Secretary.

MR JUSTICE SEDLEY said freedom of movement, subject to the general law, was a fundamental value of the common law. The power given by Parliament to the Home Secretary to restrict freedom of movement was a Draconian measure. The courts would scrutinise his reasoning closely and draw the boundaries of rationality tightly round his judgment. The same was true of the right to life, which attracted the most anxious scrutiny by the courts of administrative decision-making.

Once it was accepted that the standards articulated in the European Convention were standards which both marched with those of the common law and informed the jurisprudence of the European Union, it became unreal and potentially unjust to continue to develop English public law without reference to them.

Accordingly, the legal standards by which the decisions of public bodies were supervised could and should differentiate between those rights recognised as fundamental and those which, though known to law, did not enjoy such a pre-eminent status. Once that point was reached, the standard of justification of infringements of rights and freedoms by executive decision must vary in proportion to the significance of the right at issue.

But national security would always throw up special questions. The applicant's testimony was evidence of a real and continuing threat to his life, with the further consequence that the effect of the exclusion order was to subject him to the inhuman treatment of being for all practical purposes confined to the one part of the UK where his life and his family's safety were most at risk.

The Home Secretary's judgment was that he had been so involved in acts of terrorism as to make it expedient to exclude him from Great Britain notwithstanding the threat to his life and the inhuman treatment involved. If the interests of national security were such as to prevent the court from knowing what it was that had moved the Home Secretary to make the exclusion order, it was impossible to balance both sides to decide whether the Home Secretary's decision lay within the band of rational decisions available in a case which potentially called the right to life in question.

The weight of authority demonstrated that the formula used by the Home Office in its grounds for making the order and for not giving detailed reasons was sufficient to halt any further scrutiny by the court. The interests of national security were sufficiently invoked to preclude any further inquiry by the court into the legitimacy of the Home Secretary's conclusion that it was expedient in order to prevent acts of terrorism connected with the affairs of Northern Ireland to make and not to revoke the exclusion order. The application could not succeed.