Queen's Bench Divisional Court (Lord Justice Leggatt and Mr Justice Kay).
12 April 1995.
Since on an application for judicial review of an exclusion order under the Prevention of Terrorism (Temporary Provisions) Act 1989 the Home Secretary cannot be required to reveal the reasons for the order when it was made in the interests of national security, there was no basis on which the court could conclude that the order was so wrong as to merit an award of exemplary damages.
The Divisional Court withdrew the reference of the applicant's case to the European Court of Justice and dismissed his application for judicial review.
In March 1994 the applicant, Gerard Adams, applied for judicial review of the Home Secretary's decision to make an exclusion order which prevented him from coming to this country to address the Commons. The application was dismissed except on the issue of proportionality, namely whether the applicant should have been permitted to visit for a few hours, which was referred to the ECJ.
In October 1994, the exclusion order was revoked. The Home Secretary applied for a withdrawal of the reference and for the application for judicial review to be dismissed. The applicant applied to add a claim for exemplary damages.
Robin Allen and Clive Lewis (Liberty) for the applicant; Stephen Richards (Treasury Solicitor) for the Home Secretary.
LORD JUSTICE LEGGATT, giving the court's judgment, said that on a challenge to the lawfulness of the Home Secretary's decision to make an exclusion order, it was not open to the court to go behind the Home Secretary's assertion that it would be contrary to the requirements of national security to reveal the ground on which the Home Secretary based his decision.
Awards of exemplary damages were considered in respect of action by government servants only when it was oppressive, arbitrary or unconstitutional. If the circumstances ever arose in which the court had to consider exemplary damages in this matter, it would be on the basis that while the Home Secretary was taken to have been justified in making the order, he did not attach sufficient weight to the right to free speech.
Since the court could not be privy to the reasons why the exclusion was thought necessary, it would be a formidable task for the applicant to persuade the court that the decision was so clearly disproportionate that it could not properly have been made. To succeed in a claim for damages would require the applicant to go even further and cause the court to view the decision as not merely disproportionate but so clearly wrong as to merit the punitive form of damages.
That was a conclusion that their Lordships did not see the court ever being able to reach bearing in mind that it did not have the opportunity of assessing the material available to the Home Secretary. This was not a case where exemplary damages could be awarded.
It was submitted that the judicial review proceedings were not "academic" and that a declaration of the applicant's rights under Community law would serve to enhance and underpin the rule of law, including both Community law and respect for fundamental rights, during the developing peace process.
However, since the Home Secretary was not obliged to give reasons which would be contrary to the public interest to disclose, the political cast sought to be given to the possible reimposition of an exclusion order could not provide a legitimate basis for the continuation of the judicial review proceedings. The application for judicial review had no remaining content and was dismissed.