AS TO THE ADMISSIBILITY OF

                      Application No. 24889/94

                      by Philip McCULLOUGH

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

12 September 1997, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 H. DANELIUS

                 L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 A. PERENIC

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 R. NICOLINI

                 A. ARABADJIEV

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 28 March 1994 by

Philip McCULLOUGH against the United Kingdom and registered on

11 August 1994 under file No. 24889/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 11 January 1995 to communicate the

     application;

-    the observations submitted by the respondent Government on

     25 May 1995 and the observations in reply submitted by the

     applicant on 27 November 1995 and further information submitted

     by the applicant on 17 and 23 January 1996;

-    the further observations submitted by the Government on

     29 August 1996 and further observations submitted by the

     applicant on 10 December 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish and British citizen born in 1947 and

resident in Belfast. He is represented before the Commission by

Ms Patricia Coyle, a solicitor working for Madden & Finucane Solicitors

in Belfast.

     The applicant has introduced the application on his own behalf

and also on behalf of his mother, born in 1927 and resident in Leeds,

and on behalf of his brother, born in 1955 and also resident in Leeds.

     The facts as submitted by the parties may be summarised as

follows.

A.   Particular circumstances of the case

     The applicant has lived in Northern Ireland all his life.

     In 1966, the applicant was convicted of causing an explosion and

sentenced to 18 months' imprisonment. From 1971-1975 he underwent a

period of internment without trial, which he states was probably the

result of his involvement in the civil rights movement in the 1960's.

The Government have asserted that he was detained on grounds that he

was a senior member of the Provisional IRA and that the length of the

period of internment imposed reflected the authorities' assessment of

the applicant's importance within the organisation.

     On 22 August 1976, the applicant visited his sick father who

lived in Yorkshire (England). On 29 August 1976, the applicant was

detained under the Prevention of Terrorism (Supplemental Temporary

Provisions) Act 1976 on suspicion of involvement in terrorism connected

with the affairs of Northern Ireland.

     On 2 September 1976, the Secretary of State made an order under

the Prevention of Terrorism (Temporary Provisions) Act 1976 ("the

1976 Act") excluding the applicant from being in or entering Great

Britain on the grounds that he was or had been concerned in the

commission, preparation or instigation of acts of terrorism. The

applicant did not avail himself of the opportunity to make written

representations against the order and to have those representations

considered by an Adviser nominated under section 7 of the 1976 Act. He

consented to being removed from Great Britain to Northern Ireland.

     On 22 July 1986, following a review of the applicant's case, the

Secretary of State revoked the exclusion order under the 1976 Act and

made a fresh exclusion order under section 4 (1) and (2) of the

Prevention of Terrorism Act 1984 ("the 1984 Act"). The applicant made

written representations against the order but declined an interview

with an Adviser. The Secretary of State reconsidered the applicant's

case in light of the representations and the Adviser's report. On

17 November 1986, the applicant was informed that the Secretary of

State had decided not to revoke the order.

     In November 1986, following the interception of a parcel

containing fire-arms and cartridges, the applicant's brother was

arrested and, according to the Government, he admitted having sent this

and other consignments to the applicant. The applicant's brother was

released on bail but absconded, a warrant for his arrest still being

outstanding.

     On 7 July 1989, a further exclusion order was made against the

applicant under the Prevention of Terrorism (Temporary Provisions)

Act 1989 ("the 1989 Act"). The applicant only made written

representations against the order on 13 December 1991, shortly before

its expiry. These representations were taken into account by the

Secretary of state in deciding whether to make a fresh order.

     On 2 July 1992, the Secretary of State made a further exclusion

order against the applicant. The applicant made written representations

against the order on 23 May 1993. Although the applicant was out of

time, the Secretary of State nominated an Adviser to interview him. At

the interview on 11 August 1993, the applicant was accompanied by his

solicitor.

     The applicant was informed by letter of 24 September 1993 that

the Secretary of State had decided not to revoke the order.

     The applicant is married and has two children. However, his

mother and his four brothers and three sisters live in England.

Effectively the exclusion order means he is excluded from every part

of the United Kingdom except Northern Ireland. The applicant's mother

is elderly and suffers from senile dementia and one of his younger

brothers suffers from Downs Syndrome. Consequently both find it very

difficult to travel and it has been several years since the applicant

has seen either of them. In fact, as a result of the exclusion order

against him he was prevented from attending the funeral of his father

who died in England in 1985.

     The applicant is a member of Sinn Fein. He denies that he has

ever been involved with any terrorist organisation.

B.   Relevant domestic law and practice

     The statutory provisions

     Section 4 of the Prevention of Terrorism (Temporary Provisions)

Act 1989 provides as relevant:

     "(1)  The Secretary of State may exercise the powers

     conferred on him by this Part of the Act in such a way as

     appears to him expedient to prevent acts of terrorism...

     (2)   The acts of terrorism to which this Part of the Act

     applies are acts of terrorism connected with the affairs of

     Northern Ireland."

     Section 5 of the Act provides as relevant:

     "(1) If the Secretary of State is satisfied that any

     person-

           (a) is or has been concerned in the

           commission,preparation or instigation of acts of

           terrorism to which this Part of the Act applies; or

           (b) is attempting or may attempt to enter Great

           Britain with a view to being concerned in the

           commission, preparation or instigation of such acts of

           terrorism,

     the Secretary of State may make an exclusion order against

     him.

     (2) An exclusion order under this section is an order

     prohibiting a person from being in, or entering, Great

     Britain."

     Sections 6 and 7 of the Act give the Secretary of State similar

powers to exclude persons from Northern Ireland or the United Kingdom

as a whole.

     Exclusion orders: practice and procedure

     The process of making exclusion orders is an executive and

administrative one. The order is made by the Secretary of State in

secret.

     Pursuant to Schedule 2 paragraph 3 to the 1989 Act, a person

served with notice of the making of an exclusion order may make written

representations to the Secretary of State setting out his objections

and may request a personal interview with one of the Advisers nominated

by the Secretary of State at which he may attend with his legal

representative. The Advisers are independent appointees but their

identities are not disclosed to the interviewees. The Government has

stated that of the three Advisers at the current time, two are Queen's

Counsel and the third the ex-chairman of a public company who has

served as a magistrate. Advisers may recommend that an exclusion order

be revoked and have done so five times in 1989, four times in 1990 and

1991, once in 1992 and twice in 1993. In all these cases, the

recommendations were accepted by the Secretary of State.

     Where representations are made by an applicant against an order,

the Secretary of State treats the reconsideration as a fresh decision

to be made de novo on all the material then before him.

     Once the order has been made there is no possibility of appeal

to an independent tribunal.

     The number of exclusion orders made by the Secretary of State has

declined over recent years. At the end of 1984,there were 238 exclusion

orders in force; 71 at the end of 1993 and 58 at the end of 1994. In

1995, further reviews were carried out which resulted in the revocation

of 16 exclusion orders, leaving 38 currently in force (five of which

relate to exclusion of persons from the United Kingdom as a whole).

     The continuance of the existence of powers to make exclusion

orders is reviewed regularly by Parliament when the prevention of

terrorism provisions come up for annual renewal since 1976.

     In the recent Parliamentary debate of 8 March 1995 on the renewal

of the 1989 Act, the Secretary of State explained why he had declined

to revoke all the remaining exclusion orders:

     "I have considered whether it would be possible to go

     further and lift all the remaining orders. I have not done

     so for two reasons. First, it is clear that, if the

     ceasefires were to break down, we might receive little, if

     any warning, and without doubt many of the key targets

     would, as before, be on this side of the water. Secondly,

     the police remain satisfied that among those still excluded

     are some who would be likely to play some part in mainland

     terrorism were it to resume...if all the exclusion orders

     were to be lifted now, there would be nothing to stop those

     people coming here well before any possible breakdown of

     the ceasefire, to make preparations for renewed attacks.

     This is not a debating point. It is a point that goes to

     the heart of the exercise of these powers in the cause of

     protecting the safety of our people. ...I will continue to

     keep the need for each of the orders under review, but I am

     not prepared to take unnecessary risks at this stage, in

     the face of the clear view of the police and our security

     advisers."

     Judicial review

     Exclusion orders have been the subject of judicial review

proceedings on a number of occasions.

     In R. v. Secretary of Home Affairs ex parte Sean Sitt (Divisional

Court 28 January 1987), where the applicant argued that natural justice

required that he be given the reasons for the exclusion order made

under the 1984 Act, the Divisional Court accepted that it was not

possible for the individual in that case to be informed, in greater

detail than was set out in the exclusion order, of the reasons why the

order was made or the information which led to it being made or why the

order could not be revoked, since that might lead to the discovery of

the sources of information available and/or possibly compromise police

operations and/or put at risk the lives of informants or their

families.

     In R. v. Secretary of State for the Home Department ex parte

John Gallagher (Court of Appeal judgment of 10 February 1994)

concerning the exclusion of the applicant, an Irish national, from the

United Kingdom as a whole, the Court of Appeal accepted the Secretary

of State's argument that he could not be more specific with regard to

the national security grounds upon which he acted in making the

exclusion order. The Court of Appeal also accepted that there were

overwhelming reasons for not revealing the names of the panel of

Advisers, namely, the risk to the Advisers concerned. It referred also

to the report by Lord Colville Q.C. (1992 report on the operation of

the Prevention of Terrorism Temporary Provisions Act 1989) where

Lord Colville stated that he knew the identity of the Advisers and

could confirm judge's finding of the independence

of the Adviser who acted in Gallagher. The case was however referred

to the European Court of Justice pursuant to Article 177 of the EC

Treaty as regarded the compatibility of the measure with Directive

64/221 EEC dealing with freedom of movement.

     In its judgment of 30 November 1995, the European Court of

Justice ruled, inter alia, that the directive did not preclude the

competent authority which reviews a measure being appointed by the same

administrative authority which took the measure ordering the expulsion,

provided that the competent authority can perform its duties in

absolute independence and is not subject to any control by the

authority empowered to take the measures. The Court recalled that the

purpose of the intervention of the competent authority was to enable

an exhaustive determination of all the facts and circumstances,

including the expediency of the proposed measure, to be carried out

before the decision is taken. The directive concerning the movement and

residence of foreign nationals had to be interpreted as meaning that

save in cases of urgency the administrative authority is prohibited

from taking a decision ordering expulsion before a competent authority

has given its opinion.

     When the Court of Appeal recommenced its examination of the

Gallagher case in light of the ECJ ruling, it noted that the ECJ had

not found it necessary for the Home Secretary to name the Advisers

appointed. It continued:

     "Following the expression of some unease by this court at

     the generality of the information concerning the nominated

     person who interviewed Mr. Gallagher and reported to the

     Home Secretary, Mr. Pannick supplied

     (and undertook to confirm on affidavit) the following:

           'The person appointed has had no contractual or other

           relationship with the Civil Service, or with Northern

           Ireland. His career has been as a chairman of a public

           company and chairman of an independent public

           authority (neither in central nor local government)

           with no connection with Northern Ireland, the Home

           Office or religion. He has been a magistrate. The

           criteria upon which persons are appointed are

           precisely to avoid selection of persons with previous

           connections with Northern Ireland and the Home Office.

           Advisers are paid £194 per day plus expenses.'

           There is nothing to throw any doubt on any part of

           this statement...It does in our view enable the court

           to satisfy itself that the nominated person could

           perform his duties in absolute independence and

           without any control by the Home Secretary.' "

     Though the Court of Appeal found a breach of Community law in

that the interview of the Adviser took place subsequent to the decision

of the Home Secretary, it found that this did not furnish any ground

upon which he could recover damages.

     In the case of R. v. the Secretary of State for the Home

Department ex parte Gerard Adams, in which an exclusion order from

mainland United Kingdom was challenged by way of judicial review, the

Court of Appeal on 29 July 1994 made an Article 177 reference, which

included the questions whether Article 8 a(1) of the EC Treaty

conferred rights of free movement additional to those which existed

prior to the Treaty on European Union, whether Article 8 a(1) gave rise

to directly effective rights and was applicable to situations which

were wholly internal to a single Member State and what were the precise

requirements of the principle of proportionality in such a case which,

in relation to limitations on rights of free movement, involved freedom

of speech and national security. The reference was however withdrawn

when the exclusion order in issue was lifted.

COMPLAINTS

     The applicant asserts that under Article 6 of the Convention he

has the civil right to pursue his family life, to seek employment, and

to free movement within the United Kingdom. He further contends that

he has been denied an independent and impartial tribunal established

by law to challenge the basis on which he has been denied these rights

by operation of the exclusion order.

     The applicant submits that the exclusion order interferes with

his right to respect for his family life since it effectively prevents

him from maintaining his family relationships with his elderly mother

and disabled brother.

     The applicant submits that exclusion orders violate Article 14

either alone or in conjunction with Article 6 and/or 8 of the

Convention. The applicant believes that the only United Kingdom

citizens who are subject to exclusion orders are those from Northern

Ireland. This, he alleges, amounts to discrimination on the grounds of

national origin or association with a national minority in

contravention of Article 14.

     Finally, the applicant invokes Article 13 of the Convention in

that there is no effective domestic remedy against the exclusion order.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 March 1993 and registered

on 11 August 1994.

     On 11 January 1995, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were received on

25 May 1995, after an extension of the time-limit fixed for that

purpose. The applicant's submissions in reply were received on

27 November 1995, also after an extension of the time-limit. The

applicant submitted further information on 17 and 23 January and

12 February 1996.

     On 16 April 1996, the Commission granted the applicant legal aid.

     On 27 June 1996, the Commission decided to invite the Government

to make further submissions on a particular point.

     The Government submitted its further observations on

29 August 1996 and the applicant submitted his further observations in

reply on 9 December 1996 after three extensions in the time-limit.

     On 26 May 1997, the Commission decided to invite the parties to

present submissions at an oral hearing.

     At the hearing, which took place on 12 September 1997, the

Government were represented by Mr. D. Bentley, Agent, Mr. J. Eadie,

counsel, Mr. H. Carter and Ms. Byrne, Home Office Advisers, and the

applicant was represented by Mr. S. Treacy, counsel, Ms. K. Quinlivan,

counsel, and Mr. P. Madden, solicitor.

THE LAW

1.   The applicant has stated that he has introduced the application

on his own behalf and on behalf of his mother and his younger brother.

The Commission notes that he has not provided a letter of authority

from his mother and brother, despite a request made by the Secretariat

on 13 April 1994. Nor has any authorisation been received from a

legally-appointed representative of his mother and brother. It further

notes that the submissions of the applicant have been presented

entirely on the basis of his complaints. The Commission finds it

appropriate in these circumstances to treat the applicant as the sole

applicant in this case.

2.   The applicant alleges that, by excluding him from entering Great

Britain, his rights under Article 6 (Art. 6) have been violated.

     Article 6 (Art. 6) provides in its first sentence:

     "In the determination of his civil rights and obligations

     or of any criminal charge against him, everyone is entitled

     to a fair and public hearing within a reasonable time by an

     independent and impartial tribunal established by law."

     The applicant asserts that his right to freedom of movement,

right to seek employment and right to pursue his family life are denied

by the exclusion order which he is unable to challenge by taking

proceedings in any court.

     Article 6 para. 1 (Art. 6-1) applies only to disputes

("contestations") over rights and obligations which can be said, at

least on arguable grounds to be recognised under domestic law. It does

not in itself guarantee any particular content for "rights and

obligations" in the substantive law of Contracting States (cf. Eur.

Court HR, Lithgow and Others v. the United Kingdom judgment of 8 July

1986, Series A no. 102, p. 70, para. 172). It is also established case-

law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims

that an interference with his "civil rights" is unlawful the right to

submit that claim to a tribunal satisfying the requirements of that

provision (Eur. Court HR, Le Compte, Van Leuven and De Meyere v.

Belgium judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).

     The Commission notes that the general rights relied upon by the

applicant are not recognised as such by domestic law in the United

Kingdom. To the extent that any right to freedom of movement within the

territory of European Union States may be derived from the law of the

European Community, and assuming that any such right is directly

applicable rather than merely declaratory, the Commission is of the

opinion that such right is of a public law nature, having regard to the

origin and nature of the provisions and the lack of personal, economic

or individual aspects which are characteristic of the private law

sphere (Nos. 28979/95 and 30343/96 dec. 13.1.97 D.R. 88-A p. 137 citing

Eur. Court HR Schouten and Meldrum judgment of 9 December 1994 no. 304

pp. 21-24, paras. 52-60).  Consequently, the complaints fall outside

the scope of the concept of "civil rights and obligations".

     It follows that this part of the application must be rejected as

incompatible ratione materiae with the provisions of the Convention

pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant complains that the exclusion order has interfered

unjustifiably with his relationship with his mother and younger

brother. In this respect he complains that the exclusion order

constitutes a violation of Article 8 (Art. 8) of the Convention which

provides:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

     2.    There shall be no interference by a public authority

     with the exercise of this right except such as is in

     accordance with the law and is necessary in a democratic

     society in the interests of national security, public

     safety or the economic well-being of the country, for the

     prevention of disorder or crime, for the protection of

     health or morals, or for the protection of the rights and

     freedoms of others."

     The Government dispute that there is sufficient link between the

applicant and his adult relatives in England to attract the protection

of Article 8 (Art. 8); in particular there has been no cohabitation for

many years, and no elements of financial, emotional or other

dependence.

     Even if there is "family life" the Government submit that the

difficulties imposed on the travel or contact are not sufficient to

amount to an "interference". Even if there is an "interference", such

would in any event be justified, referring to the wide margin of

appreciation in national security matters and the special

considerations attaching to the prevention of terrorist crime. They

have provided a list of factors alleged to be capable of satisfying the

Commission that the applicant is a threat to national security,

including his previous conviction and internment and the arrest of his

brother in connection with arms offences, but emphasise that this does

not represent the full security case against the applicant. They refer

to "reliable secret information that the applicant remains involved in

the Provisional IRA".

     Further, the Government submit that a proper balance has to be

struck between the  defence of democracy in the common interest and the

protection of individual rights. They argue that any alleged

interference in this case is not of a serious nature whereas the

exclusion order is an effective means of protecting the community from

terrorism. Having regard to the sensitive intelligence material

involved and the real risk of death or injury to the sources concerned,

it cannot be required that information be provided as to the basis of

suspicion. Further, there are safeguards to ensure that the exclusion

order power is exercised fairly, including review by an independently

appointed Adviser following a personal interview.

     The applicant submits that in this case there is a degree of

dependency involving more than normal, emotional ties and emphasises

that the applicant has not seen his mother for over three years and his

younger brother for over two years as a result of the exclusion order.

They argue that a wider, more modern approach to family life should be

adopted and refer to Republican prisoners transfer cases which

emphasised the importance of maintaining family links (see eg. 19085/91

Kavanagh v. the United Kingdom, dec. 9.12.92). They refer also to the

comments of the UN Human Rights Committee of 27 July 1995 which stated

that:

     "It is the view of the Committee that the powers under the

     provisions permitting infringements of civil liberties,

     such as ...imposition of exclusion orders within the United

     Kingdom... are excessive." CCPR/C/79Add.55 para. 11

     The applicant submits that the exclusion order clearly interferes

with his family relationships, since due to his mother's age and

infirmity and his brother's handicap, they have been unable to visit

him for some years. He further argues that the exclusion order is an

excessive and disproportionate use of power, which is not subject to

sufficient procedural safeguards against abuse. No information was

given to him as regards the basis of the alleged suspicions against

him, nor any reasons given for the order, rendering him unable to make

any effective challenge to the decision to exclude him. Further,

Advisers do not offer sufficient guarantees of independence, since,

inter alia, they are anonymous appointments by the Secretary of State

and there is an absence of guarantees against outside pressures and

influences. There is no possibility of effective judicial supervision

of the exercise of the power.

     The Commission, as a preliminary remark, notes that the

applicant's complaints centre on the effects of a restriction imposed

on his ability to move freely, and to take up residence elsewhere,

within the territory of the United Kingdom. Freedom of movement is a

specific right subject to protection in Article 2 of Protocol No. 4

(P4-2), which the United Kingdom has not ratified. While it is not

excluded that restriction measures may, in appropriate cases disclose

violations of other substantive rights under the Convention (eg. East

African Asians v. the United Kingdom, Nos. 4403/70 etc Comm. Rep.

14.12.73 D.R. 78-A p. 5 paras. 184-187),the Commission considers that

Article 8 (Art. 8) cannot be interpreted as conferring a general right

to reside in, or move to any particular part of a Convention territory.

This element must be taken into account in the assessment of the

applicant's claims of a violation of this provision.

     As to whether the applicant's claims indeed fall within the scope

of protection of Article 8 (Art. 8), the Commission recalls that while

the "family life" generally covers the ties between near relatives, it

is a question of fact in each case whether "family life" exists.

     The Commission recalls that it has held that relationships

between adults would not necessarily acquire the protection of

Article 8 (Art. 8) without evidence of further elements of dependency,

involving more than the normal, emotional ties (see e.g. Applications

No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196 and No. 8924/80,

Dec. 10.3.81, D.R. 24, p. 183). However it notes that the Court in the

Boughanemi case (Eur. Court HR, Boughanemi v. France judgment of

24 April 1996 Reports 1996-II no. 8, para. 35) stated that the tie

between a parent and child can only be broken in exceptional

circumstances and adverted to the expulsion of the adult applicant in

that case breaking his ties with his parents and his brothers and

sisters as an element in its finding of an interference with "family

life" under the first paragraph of Article 8 (Art. 8). Since in the

present case the applicant has maintained ties throughout his adulthood

with his mother and brother who live in the United Kingdom, the

Commission finds that this relationship falls within the scope of

Article 8 (Art. 8).

     The Commission considers that it is doubtful whether the facts

of the case disclose any interference with the applicant's right to

respect for family life since it is not established that his mother and

brother cannot visit, or move to, Northern Ireland. However, whether

or not the exclusion order is considered in the context of interference

with the applicant's family life under the second paragraph or respect

for  his family life under the first paragraph, the Commission notes

that the applicable principles are similar. In both contexts, regard

must be had to the fair balance that has to be struck between the

competing interests of the individual and of the community as a whole;

and in both contexts, the State enjoys a certain margin of appreciation

(eg. Eur. Court HR Gül v. Switzerland judgment of 19 February 1996

Reports 1996-I no. 3 para. 38).

     As regards the interests of the community, the Commission recalls

that the Government emphasise the importance of the exclusion power to

its ongoing fight against terrorism arising out of the situation in

Northern Ireland. As held by the Court in various cases, due account

must be taken of the special nature of the terrorist crime, the threat

it poses to democratic society and the exigencies of dealing with it

(eg. Eur. Court HR Murray family v. the UK judgment of 28 October 1994

No. 300-A para. 47). The Commission observes that the Government

imposed the exclusion order on the applicant on the basis that the

Secretary of State was satisfied that the applicant was or had been

involved in the commission, preparation or instigation of acts of

terrorism. It has supplied some information relating to the grounds of

this belief, including the involvement of the applicant's brother in

arms offences in circumstances alleged to implicate the involvement of

the applicant. The Commission has no reason to doubt, on the basis of

the submissions and information provided by the parties that this

measure is bona fide.

     As regards the interests of the individual, the Commission must

assess whether in the present case the effects of the measure on the

applicant, including the provision of adequate procedural safeguards

to safeguard his interests, are such as to outweigh the factors

outlined above.

     Firstly, the Commission notes that the exclusion order does not

directly impinge on the applicant's family life. He remains free to

contact them as he wishes and to meet them, subject to the prohibition

that he may not enter Great Britain.

     Secondly, the Commission has given attention to the complaints

raised by the applicant as to the lack of effective guarantees against

arbitrariness in the exclusion order process (eg. mutatis mutandis,

Eur. Court HR, Klass v. Germany judgment of 6 September 1979, Series A

no. 28, p. 28 para. 50 concerning secret surveillance measures).

     The applicant in the present application has emphasised that the

decision-making process surrounding the imposition of the order against

him is wholly secret and he has never been told the information upon

which the Secretary of State acted when making the order. The

Commission finds however that the Government may legitimately fear that

the efficacy of their investigation of terrorist crime might be

jeopardised, and persons be endangered, by the provision of sensitive

information to complainants (mutatis mutandis, Eur. Court HR Leander

v.Sweden judgment of 26 March 1987 p. 27, para. 66).

     The applicant complains also that there is no appeal from the

order, no possibility of judicial review of the merits and that the

Advisers who received his representations cannot be regarded as

independent since their anonymity makes it impossible for this to be

verified objectively. The Commission recalls that the Government has

specified that of the three present Advisers, two are Queen's Counsel

and the third, an ex-chairman of a public company and independent

public authority who has served as a magistrate. It does not find that

the fact that the Adviser who heard the applicant's representations was

appointed by the Secretary of State can detract per se from his

independence and notes that the Adviser was subject to the guarantees

that he was unconnected with the civil service, the Home Secretary or

affairs in Northern Ireland.

     The Commission further notes that pursuant to the finding by the

European Court of Justice in the Gallagher case (see Relevant domestic

law and practice) the Court of Appeal reviewed the role of the Adviser

(also the Adviser in the applicant's case) and found that it was able

to satisfy itself that the Adviser could perform his duties in absolute

independence and without any control by the Home Secretary.

Notwithstanding the applicant's argument that there can be no

appearance of independence if the Adviser remains anonymous, the

Commission does not consider that the review by the Court of Appeal,

which was based on its assessment of the information before it

concerning the functioning of the system disclosed any lack of proper

scrutiny. Moreover, although the Adviser who heard the applicant's

representations did not have the professional training in objectivity

and in law of legally-qualified Queen's Counsel, his independence was

also confirmed by Lord Colville Q.C.

     The Commission would observe that procedural requirements under

Article 8 (Art. 8) cannot be interpreted as necessarily requiring

judicial control of measures. The degree of supervision, and the level

of guarantees of independence for example, will vary according to the

circumstances of the case. Where risk to life and limb under Article 3

(Art. 3) is concerned for example, effective review may require an

independent body with decision-making power (eg. Eur. Court HR Chahal

family v. UK judgment of 15 November 1996 paras. 153-154). In the

present case, where the effect on family life is indirect and

consequential to measures restricting freedom of movement in order to

counter terrorist crime, the Commission does not consider that the lack

of further guarantees of independence discloses a risk of arbitrariness

incompatible with the essential object of Article 8 (Art. 8).

     The Commission has also had regard to the fact that the applicant

was able to make representations in person, with the assistance of his

lawyer, to an Adviser. This procedure, in its view, allows an applicant

to put forward such matters as he considers relevant and provides an

opportunity, albeit considerably limited by considerations of security,

for the grounds of the order to be challenged.

     The Commission concludes that in the circumstances of the present

case the Government have not failed to achieve a proper balance between

the competing interests and that consequently there has been no lack

of respect for the applicant's family life contrary to Article 8

(Art. 8) of the Convention. This part of the application must therefore

be rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

4.   The applicant complains that he has been discriminated against

contrary to Article 14 (Art. 14) of the Convention which provides:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     organisation, national or social origin, association with a

     national minority, property, birth or other status."

     The Government deny that exclusion orders are only made against

persons living in Northern Ireland: persons may also be excluded from

Northern Ireland or the United Kingdom as a whole. There are five of

the latter type of order in force at present. Even if the majority have

concerned citizens of Northern Ireland, this is not a difference in

treatment based on a personal characteristic but related to the

geographical area to which acts of terrorism are connected. Even

assuming there is a relevant difference of treatment however, such

would be objectively and reasonably justified in the interests of

preventing terrorism.

     The applicant submits that he has been discriminated against on

religious and political grounds. He states that the only United Kingdom

citizens who have been excluded from other parts of the United Kingdom

by exclusion order are those from Northern Ireland.

     While it might indeed be the case, as alleged by the applicant,

that only United Kingdom citizens from Northern Ireland have been

subject to exclusion orders from Great Britain, the Commission notes

from the material submitted by the parties that persons from Ireland,

the United States of America, Germany and Sweden have also had orders

made against them and that the Secretary of State also has power to

exclude persons from entering Northern Ireland or the United Kingdom

as a whole. Five persons are currently subject such orders excluding

them from the United Kingdom as a whole.

     The Commission observes that the exclusion power is not aimed

exclusively, in its terms or in practice, at persons living in Northern

Ireland. Further, it is not of the opinion that the justification for

the order issued in this case, namely, that the applicant is suspected

of involvement in terrorism, discloses any difference of treatment

attributable to the fact that he may be a Catholic of Republican/Sinn

Fein convictions.

     The Commission accordingly finds that the facts of this

application fail to disclose that the applicant has been subject to a

difference in treatment based on religious affiliation or association

with a national minority or political group. The applicant has not

substantiated his claim of discrimination in this respect.

     It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.   The applicant invokes Article 13 (Art. 13) of the Convention

which provides that:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by persons acting in an

     official capacity."

     The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988,

Series A no. 131, p. 23, para. 52).

     The Commission finds that the applicant cannot be said, in light

of its findings above, to have an "arguable claim" of a violation of

his Convention rights.

     It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

     H.C. KRÜGER                             S. TRECHSEL

      Secretary                               President

   to the Commission                      of the Commission