Human Rights: Idea, law and practice

QUESTION

Judgment

Writing a Supreme Court Judgment in the case of R (Farrakhan) v Secretary of State for the Home Department[2002] EWCA Civ 606 on appeal from the Court of Appeal.

 

ANSWER

IN THE SUPREME COURT

BETWEEN

 REGINA (FARRAKHAN) Appellant

and

 SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent

1. Article 10 of the European Convention on Human Rights protects the right to freedom of expression of any individual and may be regarded as being a cornerstone bulwark of liberty against the arbitrary exercise of power of the State. Article 10(1) specifically states that “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The exercise of this freedom is however subject to formalities, limitations, restrictions or penalties which are prescribed by law and which are deemed to be necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime and so on as is set down expressly in Article 10(2). The balancing of these two aspects of the right provided in Article 10 of the European Convention on Human Rights is a difficult exercise, but this exercise is made all the more difficult in this case because should the appellant’s argument under Article 10 of the Convention rights fail then he will be denied entry to the United Kingdom itself because of the decision made by the Home Secretary under Section 1 and Section 3 of the Immigration Act 1971 to deny the appellant entry to the United Kingdom on the grounds that this was not “conducive to the public good” as is set down in Rule 320(6) of the Immigration Rules (1994) (HC 395).

Facts

2. Mr Louis Farrakhan, a United States citizen, is the leader of the group known as the “Nation of Islam”, which may be described as the Master of the Rolls Lord Philips of Worth Matravers stated when giving the leading judgment in the Court of Appeal’s hearing of this case as being a “religious, social and political movement whose aims include the regeneration of black self-esteem, dignity, and self-discipline”. The Nation of Islam has branches in other States including in the United Kingdom, and it was the group and Mr Farrakhan’s wish to enter the United Kingdom in order to personally address the group and his followers in this country. The Secretary of State for the Home Department refused Mr Farrakhan entry to the United Kingdom on the grounds that this would not be conducive to the public good in line with Rule 320(6) of the Immigration Rules 1994. This decision was communicated to Mr Farrakhan in a letter from the Home Secretary on the 20 November 2000 which stated that the application for entry into the United Kingdom had been refused because of Mr Farrakhan’s visit potentially being capable of creating a “risk of disorder” at meetings of the Nation of Islam’s United Kingdom branch, and that there would be an unwelcome and significant threat posed to relations between the Jewish and Muslim communities in the United Kingdom in particular as a result of the visit. This is because of Mr Farrakhan’s political views and statements regarding the situation in the Middle East and with regards the ongoing difficulties in relations between the Palestinian and Israeli communities in the State of Israel. These facts are important and will be returned to.

3. After hearing of the Home Secretary’s decision, Mr Farrakhan applied for judicial review by applying to Turner J of the administrative court seeking an order to quash the Home Secretary’s decision. This was successful and the Home Secretary then applied to the Court of Appeal against this order. The Court of Appeal, after considering the argument put forwards by Mr Farrakhan that by refusing to allow him to enter the United Kingdom infringed his Article 10 right to freedom of expression, allowed the appeal. The Court of Appeal accepted that Mr Farrakhan’s convention rights were engaged, but, considering arguments of proportionality in light of the decisions in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 and R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532, ruled that the Home Secretary’s decision was in fact proportionate. The appellant has now appealed this decision to the Supreme Court.

The Issues

4. The decision made by the Home Secretary was one which was held by the Court of Appeal to have been made lawfully. The order made by Turner J quashing the decision at judicial review has been overturned by that Court, and it is accepted by all parties now that the Home Secretary followed the proper lawful practice when doing so. This is provided for by Parliament through the passing of legislation in the form of the Immigration Rules (1994) under which Parliament granted the Secretary of State the power to refuse applications for entry into the United Kingdom where it is considered that it would not be conducive to the public good to do so.

5. However, the Home Secretary, when making this decision, was required to act in accordance with the provisions of the European Convention on Human Right, as is set down by s6 Human Rights Act 1998 as was made clear by this Court in the Daly case [2001] 2 AC 532. Therefore, the Secretary of State, when considering applications under the Immigration Rules, is required to do so in a way which is compatible with the provisions of the convention. The same is true of this Court, which must, when considering any issues that arise in connection with Convention rights, take into account decisions of the European Court of Human Rights (the Strasbourg court), as is set down in s2(1)(a) of the Human Rights Act 1998.

6. The Court of Appeal was correct when it held, as the Master of the Rolls Lord Philips of Worth Matravers noted in paragraphs 45 and 46 of his judgment, that the appellant’s Convention rights were engaged. This was despite the appellant being outside of the United Kingdom, and not being a citizen of the United Kingdom. The Court of Appeal referred to the judgments in Agee v United Kingdom (1976) 7 DR 164 and Poku v United Kingdom (1996) 2 EHRR CD 94, 97-98 in deciding that the rights in the convention can be engaged when considering the issue of whether or not an individual can obtain entry into a Country or not.

7. I believe Lord Philip’s judgment on this matter to have been correct and articulated as lucidly as ever by his Lordship. This can be seen from the decision in Abdulaziz, Cabales and Balkandali v The United Kingdom (1985) 7 EHRR 471, where applicants were settled in the United Kingdom and who wished for their spouses to join them against the wishes of the United Kingdom’s government. The applicants sought an order from the Strasbourg court that the decision to refuse access interfered unduly with their rights under Article 8 of the Convention. The Government argued that Convention rights and Article 8 in particular could not apply to immigration issues. The Strasbourg court refused to entertain this argument, and in turn noted that exclusion of an individual from a State was capable of creating live issues under Article 8 where the applicant had family members living in the State. If this is true, it must also be true that Article 10’s right to freedom of expression can be engaged where an individual is prohibited from entry into a State where he wishes to exercise this right.

8. This Court now also has the advantage of more recent rulings on this issue which have emanated from the Strasbourg Court. In particular, I refer to the judgment in Al-Skeini and others v United Kingdom [2011] 53 EHRR 18 in which the Grand Chamber of the European Court of Human Rights held that the United Kingdom’s human rights obligations under the Convention extended extra-territorially to those individuals over which the State was exercising “control and authority”. By denying entry to the United Kingdom, the State is exercising authority and control over an individual. This was also held in Piermont v France [1995] 20 EHRR 301, Swami Omkaranda and Divine Light Zentrum v Switzerland (1997) 25 DR 105 and in Adams and Benn v United Kingdom (1997) 88A DR 137 . A more recent case which the Court of Appeal in Mr Farrakhan’s case did not have the advantage of considering was the later decision of the Court of Appeal, given in Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546 , on an issue similar to this where those seeking to listen to a radical preacher who had encouraged terrorism and engaged in what is now legally classified as “hate speech” did have their right to receive information freely under Article 10(1) of the Convention engaged.

9. It must be considered that a blanket exclusion of an area of policy from the provisions of the Human Rights Act and the Convention rights would give the Government of the day extensive and unjustified leeway to make policy that would otherwise be contrary to human rights law, and which would operate in effect as a gateway to potential abuses of human rights. Considering this Courts duty to interpret legislation as far as is possible in a manner consistent with the provisions of the Human Rights Act as provided for by s3 Human Rights Act 1998 and considering the duty to interpret such issues in line with the jurisprudence of the European Commission on Human Rights and the European Court of Human rights, it is therefore clear that Mr Farrakhan’s convention rights were indeed engaged. It is also accepted by this Court that preventing Mr Farrakhan from addressing his followers in the Nation of Islam’s United Kingdom branch was, to some extent at least, an interference with his right to “impart information and ideas without interference by public authority and regardless of frontiers” as is provided for by Article 10(1) of the Convention.

Was the interference with Mr Farrahkian’s Convention right justifiable?

10. The right to freedom of expression contained in Article 10(1) of the European Convention on Human Rights is not an absolute right. This means that it is capable of being limited to some extent. It is acknowledged that the exercise of freedom of speech carries with it certain responsibilities and duties. This is specifically provided for in Article 10(2) of the Convention, which provides that the right “may be subject to formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society”. Restrictions on the right to freedom of expression are at present a highly controversial issue within the United Kingdom.

11. The United Kingdom is a pluralistic, multi-racial and multicultural society, in which there are numerous minority groups. These groups must be free to engage in their rights, beliefs, customs, culture and worship and it is acknowledged that incitement to hatred or violence against these groups must be restricted even if this limits to some extent the freedom of expression of the speaker. This is the basis for many of the United Kingdom’s current laws regarding hate speech and incitement to racial or religious hatred such as s18 Public Order Act 1998 as amended by both the Criminal Justice and Public Order Act 1994 and the Racial and Religious Hatred Act 2006. This legislation has been made by Parliament after what must be considered due deliberation of the consequences for limitations on the freedom of expression, and it is not the position of this Court to seek to express an opinion on whether limits on the right to freedom of expression are welcome or indeed necessary. It is enough to acknowledge that Parliament is entitled to do so, and that the Home Secretary, by operation of law as set down in the Immigration Rules 1994 was indeed entitled to do so in order to protect what the Minister felt was the “public good” of ensuring relations between minority populations in this State were upheld and not damaged.

12.  Considering that Mr Farrakhian’s article 10 right was engaged therefore in this case, the question for this Court must be whether or not such an interference was one which is capable of interference as far as is necessary in a democratic society. However, the Minister must have done so only as far as “is necessary in a democratic society”. This reference in Article 10(2) to what is “necessary in a democratic society” subjects the Minister’s decision to a test of proportionality as was made clear by this Court in the Daly case, and this is now settled law (see Professor Ian Loveland [2015] ‘Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction’, 7th edition Oxford University Press: Oxford p693 and the decision of this Court in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532).

13. This court must therefore determine whether or not the Minister’s decision was “proportionate”. In other words, was the decision taken by the Minister necessary in pursuit of a legitimate objective, and did it go no further than was necessary to achieve this objective? There is no doubt that the appellant is both a charismatic and controversial figure, and that some of the ideas espoused by the Nation of Islam under his spiritual leadership concern what may be regarded as being offensive and insulting opinions of member of other religious and ethnic groups, particularly wealthy Jews who are criticised with some degree of invective in Mr Farrakhan’s sermons in which the appellant has compared their position as a minority group to that of Black Americans. However, in a letter to the Home Office, Mr Farrakhian acknowledged his responsibility under the law of the United Kingdom and promised that he would not be seeking to inflame any ethnic or religious tensions between the groups. That said, it is clearly not the role of the Supreme Court to determine which views may or may not be held or expressed. In a multicultural and plural society, the right to freedom of expression must be maintained as far as is possible. The question is not whether or not the appellant’s views are to be regarded with approbation by this Court, but whether or not the Home Secretary’s decision was necessary.

14. It was acknowledged by Turner J in the original application for judicial review that Mr Farrakhian’s position with regards the relations between Muslim and Jewish minorities had been tempered in recent times, and that there was a good chance that Mr Farrakhian was not intending to inflame these tensions further by his visit or lectures. In addition, it was noted that the relations between the two communities were, at the time at least, free to a large extent of any tension. The Nation of Islam’s behaviour, meetings, and gatherings have been acknowledged to have in large part been free from anti-Semitic rhetoric or activity in recent times. However, as the Court of Appeal acknowledged, and as Miss Carrs-Frisk for the Secretary of State submitted to that Court, there sections of the Community “clearly associate Mr Farrakhian with anti-Semitic views”. These views may have been incorrect, or unjustified, but they are strongly felt. This in turn created a risk of disorder. In the case of Otto-Preminger v Austria (1994) 19 EHRR 34 the Austrian State of Tyrol confiscated an anti-Catholic film and prevented it from being shown. The State of the Tyrol is still, by and large, a conservative and pious Catholic community, and the Strasbourg Court, acknowledging that the filmmaker’s Article 10(1) right had been interfered with nevertheless held that the interference was necessary such was the strength of feeling and risk of religious disorder that showing the film carried with it. Preventing public disorder and ensuring ongoing good relations between minority groups is clearly, a legitimate aim. Many groups within the United Kingdom regard Mr Farrakhian’s views as anti-Semitic and allowing entry would therefore be likely to inflame tensions between these groups. However, as has been noted, the veracity of these claims and the attributions of anti-Semitism to Mr Farrakhian may be mistaken or exaggerated. This Court is not in a position to rule on whether the appellant’s views are indeed of such a persuasion, and it is not the role of the Law to interpret or rule on whether or not the Jewish communities of the United Kingdom should hold these views. Indeed, ensuring freedom of expression must be said to cut both ways, and those who view Mr Farrakhian as a divisive and controversial figure are entitled to hold this opinion in line with their own Article 10(1) rights.

15. The fact is however, that Mr Farrakhian is not, by reason of the ban on his entry into the United Kingdom absolutely prohibited from either holding or imparting his views to his colleagues in the Nation of Islam in the United Kingdom. As was noted by the Court of Appeal, Mr Farrakhian was perfectly entitled to speak to the group via video-link, by recorded video or internet stream or by television or phone.

16. As such, there is not a complete restriction on the right to freedom of expression that has ensued as a result of the Home Secretary’s decision. The decision of the Home Secretary was therefore one which can be said to have been both necessary, in that it pursued a legitimate aim of protecting community relations, and proportionate, in that it went no further than necessary to achieve this aim, as it still ensured Mr Farrakhian’s rights to impart his opinions to his parishioners, and to express himself to the limits allowed by law. This position would have been different if the Home Secretary had completely prevented or restricted the appellant from seeking to communicate with the Nation of Islam’s United Kingdom branch in this way. On the facts stated however, I would dismiss this appeal.

Bibliography

Table of Cases

Abdulaziz, Cabales and Balkandali v The United Kingdom (1985) 7 EHRR 471

Adams and Benn v United Kingdom (1997) 88A DR 137

Agee v United Kingdom (1976) 7 DR 164

Al-Skeini and others v United Kingdom [2011] 53 EHRR 18

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69

Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546

Otto-Preminger v Austria (1994) 19 EHRR 34

Piermont v France [1995] 20 EHRR 30

Poku v United Kingdom (1996) 2 EHRR CD 94

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532

R(Farrakhan) v Secretary of State for the Home Department [2002] EWCA Civ 606

Swami Omkaranda and Divine Light Zentrum v Switzerland (1997) 25 DR 105

Table of Legislation

Criminal Justice and Public Order Act 1994

European Convention on Human Rights

Human Rights Act 1998

Public Order Act 1998

Racial and Religious Hatred Act 2006

The Immigration Rules (1994) (HC 395) SI 1994/1405

Secondary Sources

Barendt E, ‘Freedom of Expression in the United Kingdom under the Human Rights Act 1998’ [2009] 84 Ind.LJ 851

Fenwick H, Phillipson G, Text, Cases and Materials on Public Law and Human Rights (2nd edn Cavendish 2013)

Loveland I, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (7th edn OUP 2015)

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