Lexploria

AS TO THE ADMISSIBILITY OF

Application Nos. 28979/95 and 30343/96

by Gerard ADAMS and Tony BENN

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 January 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

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 applications introduced on 29 March 1994 by

Gerard ADAMS and Tony BENN against the United Kingdom and registered

on 26 October 1995 and 1 March 1996 under file Nos. 28979/95 and

30343/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant states that he is an Irish citizen, born in

1948 and resident in Belfast, Northern Ireland. He is the President of

Sinn Fein, a lawful political party in both parts of Ireland. The

second applicant is a citizen of the United Kingdom, born in 1925 and

residing in London. He is an opposition Member of Parliament (MP),

former Cabinet Member and member of Her Majesty's Privy Council. In the

proceedings before the Commission the applicants are represented by

Mr. John Wadham, a lawyer practising in London.

A. Particular facts of the case

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 21 September 1993, the second applicant wrote to the first

applicant inviting him to speak to MPs and a number of journalists in

the Grand Committee Room of the House of Commons. The first applicant

had been an MP from 1983 until 1992 and had visited Great Britain on

a number of occasions to attend meetings and conferences. Although he

had been subject to an exclusion order before, the last one having been

imposed in December 1982, this had been revoked on his election to

Parliament in June 1983.

The first applicant accepted the invitation. On 18 October 1993

the second applicant wrote to the Secretary of State for Northern

Ireland to inform him of the invitation for the first applicant and the

proposed meeting. On 19 October 1993 the Secretary of State for the

Home Department (the Home Secretary) signed an exclusion order under

the Prevention of Terrorism Act 1989 ("PTA"), prohibiting the first

applicant from "being in, or entering, Great Britain" on the ground

that the Secretary of State was satisfied that the first applicant was

or had been concerned in the commission, preparation or instigation of

acts of terrorism connected with the affairs of Northern Ireland.

On 23 October 1993, the Government chose to make public the fact

that the exclusion order had been imposed against the first applicant.

By letter dated 29 October 1993, the first applicant, through his

solicitors in Northern Ireland, objected to the making of the order and

made representations. On 23 November 1993, the first applicant together

with his solicitor attended an interview with an adviser appointed by

the Home Secretary under Schedule 2 of the PTA. During this interview

the first applicant reiterated his claims that he was not a member of

the IRA, nor was he a spokesman for them and that his only reason for

going to London was to engage in dialogue and further the peace

process. The notes taken by the first applicant record the adviser as

stating:

"If you come over to England - what are you going to say - that

is the problem. It is not a question of you being suspected of

carrying explosives or attempting personally to engage in acts

of violence. You may say things that could lead to the

instigation of terrorism..."

By letter dated 12 January 1994, the first applicant was informed

that, having considered the representations made by the first applicant

and the report prepared by the Home Secretary's adviser, the Home

Secretary had decided not to revoke the exclusion order against the

first applicant.

On 6 April 1994 the first applicant applied for leave to apply

for judicial review of the exclusion order and the Home Secretary's

refusal to revoke the order. Leave was granted on 5 May 1994.

In his application for judicial review the first applicant

invoked both domestic law and European Community law, in particular

Article 8A(1) of the European Community Treaty (as amended by the

Treaty of Maastricht) and his right to freedom of expression as

guaranteed by Article 10 of the Convention and imported into English

law by European Community law.

On 29 July 1994 the Divisional Court gave the judgment in the

first applicant's application for judicial review.

In the judgment given by Lord Justice Steyn, the Court dismissed

the case under domestic law. It referred to the political context in

which from February 1993 a series of secret contacts had taken place

between the Government and Sinn Fein in order to find a peaceful

solution to the problems in Northern Ireland which had only become

public on 28 November 1993. During April 1993, there had been a series

of meetings between the first applicant and Mr. John Hulme (leader of

the Social Democratic and Labour Party) pursuant to which they drew

up a proposal for peace. The Democratic Unionist Party and the Ulster

Unionist Party had condemned these talks. Around the same period, in

July 1993, Parliament was considering the enactment of the Maastricht

Treaty, in which the Government faced considerable opposition. An

important vote taken on 22 July 1993 was won by the Government by 318

votes to 317. The Times reported the next day that nine Unionist MPs

had changed their votes at the last moment to support the Government,

on the basis that they expected the Government to look more

sympathetically on their grievances. The Court agreed that it could be

a correct inference that, if the first applicant had been allowed to

attend the meeting, it could have been a matter of political

embarrassment for the Government.

As regarded the first applicant, the Court noted that, while his

counsel utterly rejected the allegations that he had connections with

unlawful organisations stating that he merely had "an ability to speak

to the IRA", there was no denial in his affidavit of connections with

the IRA. The Court considered it would be naive in the extreme not to

infer that he has at least substantial connections with the IRA.

As regarded the first applicant's application challenging the

exclusion order, the Court held that because "the Secretary of State

is not obliged to give reasons, a decision under section 5(1) (of the

PTA) will not in practice be reviewable except in the most exceptional

circumstances.... To that extent the desirability of an effective

remedy must yield to the higher interest of the state."

While the Court could "readily accept that the exclusion order

made against may have had the effect of saving

the Government from political embarrassment", it nonetheless held that

it could not conclude that the Secretary of State acted either for an

improper purpose or that his decision was unreasonable. It found issues

arising however as to the interpretation and application of Community

law and referred a number of questions to the European Court of Justice

("ECJ") by way of preliminary reference under Article 177 of the EC

Treaty.

On 8 August 1994 the ECJ received the request for a preliminary

reference. During the autumn of 1994, written observations were lodged

at the ECJ on behalf of the EC Commission, the United Kingdom

Government, some other Member States and the first applicant.

On 31 August 1994, the IRA announced a cease-fire and on

21 October 1994 the Prime Minister announced the lifting of the

exclusion order against the first applicant.

On 4 January 1995, the UK Government issued a notice of motion

requesting the Divisional Court to both withdraw the reference made on

29 July 1994 and dismiss the first applicant's judicial review

proceedings, on the basis that the revocation of the exclusion order

had rendered the judicial review proceedings academic.

This application was resisted by the first applicant on the

ground that, although the exclusion order in question had been revoked,

the power to make such orders remained in place and the PTA remained

as a significant tool which had the capability to be re-used as a prior

restraint on freedom of speech. Furthermore, although it had become

unnecessary for the Divisional Court to bring up and quash the

decisions challenged, the first applicant's application for declaratory

relief remained outstanding and was of real importance to him. Leave

of the court was therefore sought to amend the application for judicial

review in order to include a claim for exemplary damages.

On 6 April 1995, the notice of motion and the first applicant's

application for leave to amend the application for judicial review was

heard by the Divisional Court.

On 12 April 1995, the Divisional Court gave its judgment,

refusing to grant the first applicant leave to amend his application

for judicial review in order to include a claim for damages and ordered

that the reference be withdrawn and the first applicant's application

for judicial review be dismissed. By order dated 5 May 1995, the

President of the ECJ therefore removed the first applicant's case from

its register.

On the same day the first applicant's lawyers had applied for an

amendment of his legal aid certificate to include an application for

leave to appeal to the Court of Appeal and if granted to pursue the

appeal in the Court of Appeal. The Legal Aid Board refused that

application and an appeal was brought before the Legal Aid Area

Committee.

By letter dated 21 June 1995, the Legal Aid Board turned down

this appeal on the grounds that the Committee considered there was

insufficient prospect of success to justify the costs and the proposed

appeal.

B. Relevant Domestic Law

Prevention of Terrorism Act (Temporary Provisions) Act 1989

"Section 4 Exclusion Orders: General

(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 such acts of terrorism to which this

Part of this Act applies.

(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 Orders Excluding Persons From Great Britain

(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 this 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.

Section 8 Offences In Respect Of Exclusion Orders

(1) A person who is subject to an exclusion order is guilty of

an offence if he fails to comply with the order ...

(4) A person guilty of an offence under this section is liable -

(a) on conviction on indictment, to imprisonment for a

term not exceeding five years or a fine or both;

(b) on summary conviction, to imprisonment for a term not

exceeding six months or a fine not exceeding the

statutory maximum of both.

Schedule 2, paragraph 3

(1) If after being served with notice of the making of an

exclusion order the person against whom it is made objects

to the order he may -

(a) make representations in writing to the Secretary of

State setting out the grounds of his objection; and

(b) include in those representations a request for a

personal interview with the person or persons

nominated by the Secretary of State under sub-

paragraph (5) below.

...

(5) If a person exercises those rights within the period which

they are required to be exercised by him, the matter shall

be referred for the advice of one or more persons nominated

by the Secretary of State."

C. Other relevant material

Article 8 A of the European Community Treaty (as amended by the

Maastricht Treaty) provides so far as relevant:

"1. Every citizen of the Union shall have the right to move and

reside freely within the territory of the Member States, subject

to the limitations and conditions laid down in this Treaty and

by measures adopted to give it effect."

COMPLAINTS

Concerning the first applicant

1. The first applicant complains under Article 10 of the Convention

that the expulsion order prohibiting him from entering Great Britain

to attend a meeting violated his right to freedom of expression. The

first applicant submits that such an order was not necessary in a

democratic society and that the reasons adduced for the expulsion order

were neither relevant nor sufficient, nor was the action taken

proportionate. The first applicant is the president of a lawful

political party in Northern Ireland and was seeking to engage in

dialogue with the aim of furthering the peace process between the

United Kingdom and the IRA.

2. The first applicant further complains under Article 6 of the

Convention that the fact that the domestic court declined to examine

the respondent's motive, as well as refusing to investigate the facts

and withdrawing the reference to the European Court of Justice, led to

the trial being unfair.

3. The first applicant also complains under Article 13 of the

Convention that the lack of effective review procedures available to

him through the British courts violated his right to an effective

remedy.

Concerning the second applicant

1. The second applicant complains under Article 10 of the Convention

that the expulsion order prohibiting the first applicant from entering

Great Britain to attend the meeting that he had invited him to violated

his right to freedom of expression and, in particular, his right to

freedom to receive information and ideas. The second applicant submits

that such an order was not necessary in a democratic society and that

the reasons adduced for the expulsion order were neither relevant nor

sufficient, nor was the action taken proportionate. The second

applicant is an opposition MP and was seeking to give the first

applicant the opportunity to engage in dialogue with the aim of

furthering the peace process between the United Kingdom and the IRA.

2. The second applicant also complains under Article 13 of the

Convention that he did not have an effective remedy before a national

authority in respect of his complaint.

THE LAW

1. The applicants complain of a violation of Article 10 (Art. 10)

of the Convention in respect of the imposition of an exclusion order

on the first applicant which prevented him from attending the meeting

in the House of Commons to which the second applicant had invited him.

Article 10 (Art. 10) of the Convention provides:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Commission recalls that the exclusion order imposed on the

first applicant prevented him from attending a specific meeting in the

House of Commons to which he had been invited by the second applicant.

In these circumstances, the first applicant has been subject to a

restriction on his freedom of expression and to impart information and

ideas and the second applicant to a restriction on his right to receive

information and ideas, within the meaning of the first paragraph of

Article 10 (Art. 10).

It must therefore be determined whether the restrictions were

compatible with the requirements of the second paragraph of Article 10

(Art. 10), namely whether they were "prescribed by law", pursued a

legitimate aim and were "necessary in a democratic society" to achieve

that aim.

The Commission notes that the applicants have not submitted that

the measure was not "prescribed by law".

As regards the aim of the measure, the Commission notes that the

Secretary of State exercised his power to impose an exclusion order on

the basis that he was satisfied that the first applicant was or had

been concerned in the commission, preparation or instigation of acts

of terrorism connected with the affairs of Northern Ireland. It appears

from the transcript of the first applicant's interview with the adviser

that the concern was not that the first applicant would be attempting

personally to engage in acts of violence but that he might say things

which could lead to the instigation of terrorism. The applicant has

pointed to the timing of the order as indicating that the real

motivation of the measure was to save the Government from political

embarrassment, which effect the domestic courts readily accepted that

the measure had. The Commission notes however that the domestic courts

did not find that this was in fact the purpose of the restriction,

declining to conclude that the order was made for any improper purpose.

Lord Justice Steyn did comment that there was no denial by the first

applicant of connections with the IRA and that it would be naive not

to infer that he has at least substantial connections with them, from

his acknowledged "ability to speak to the IRA". The Commission does not

consider that it can be excluded that the Government took the measure

in order to prevent a highly public exposure of ideas and opinions

which might, arguably, purport to lend legitimacy to the use of

violence in pursuit of political aims (see, mutatis mutandis,

Nos. 15404/89 Purcell v. Ireland, dec. 16.4.91 D.R. 70 p. 262 and

18714/91 Brind and others v. the United Kingdom, dec. 9.5.94 D.R. 77

p.42). The restriction may therefore be reasonably said to pursue the

interests of national security and the prevention of disorder or crime.

As regards the necessity of the restriction, the case-law of the

Court and Commission emphasises the importance of freedom of expression

which is one of the essential foundations of a democratic society and

that as a matter of principle the necessity for any restriction must

be convincingly established (see eg. Eur. Court HR, Goodwin v. United

Kingdom judgment of 27 March 1996, to be published in Reports 1996,

paras. 39-40). Nonetheless, it is in the first place for the national

authorities to assess whether there is a pressing social need for a

restriction and in making their assessment they enjoy a certain margin

of appreciation.

In the present case, the restriction complained of prevented the

first applicant from attending a specific meeting in London. The

Commssion notes in that context that the United Kingdom is not a party

to Protocol No. 4 to the Convention which in Article 2 (Art. 2)

guarantees freedom of movement within the territory of a State. It

remained open to the first applicant to express his views by other

means or in Northern Ireland and for the second applicant to receive

those views. The limitation was thus narrowly confined in its scope

insofar as it affected the freedom to receive and impart information.

The Commission recalls the sensitive and complex issues arising in the

context of Northern Ireland where there have been ongoing efforts to

establish a peace process acceptable to the various communities and

parties involved and where the threat of renewed incidents of violence

remains real and continuous. It also notes that the exclusion order was

lifted following the announcement of a ceasefire by the IRA. In these

circumstances, the Commission finds that the decision of the Secretary

of State to impose an exclusion order which prevented the first

applicant from attending a meeting in London was not disproportionate

to the aim of protecting national security and preventing disorder and

crime and that it could be regarded as necessary in a democratic

society for those purposes.

It follows that the applicants' complaints must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The first applicant has also complained that he did not receive

a fair hearing before the domestic courts, invoking Article 6 para. 1

(Art. 6-1) of the Convention which provides, in its first sentence:

"1. 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 first applicant submits that Article 8A(1) of the EC Treaty

confers on European Union citizens the right to move and reside freely

within the territory of the Member States and that he was denied the

possibility of having his "arguable" claim determined by a court, since

the domestic courts were unable in judicial review to examine whether

the Secretary of State's decision was in fact justified in the

interests of national security and since the domestic courts withdrew

the Article 177 reference from the ECJ when the exclusion order was

lifted.

The Commission recalls that 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 H.R., James and others v. United Kingdom

judgment of 21 February 1986, Series A no. 98, p. 46, para. 81,

Lithgow and others v. United Kingdom judgment of 8 July 1986, Series

A no. 102, p.70, para. 192). 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 H.R., Le Compte, Van Leuven and De Meyere judgment of 23

June 1981, Series A no. 43, p. 20, para. 44).

The Commission notes however that the applicant's claim is based

on a provision of a treaty which provides in general terms for freedom

of movement of citizens of the European Union within the territory of

Member States. While it appears subject to argument in the English

courts as to whether this provision is declaratory or confers directly

applicable rights in domestic law, the Commission in any event is of

the opinion that any right involved is of a public law nature, having

regard to the origin and general nature of the provision, which lacks

the personal, economic or individual aspects which are characteristic

to the private law sphere (see eg. Eur. Court HR, Schouten and Meldrum

judgment of 9 December 1994, Series A no. 304 pp. 21-24 paras. 52-60).

Consequently, the matter falls 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 applicants have complained that they did not have available

to them an effective remedy in respect of their complaints, invoking

Article 13 (Art. 13) of the Convention:

"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

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23,

para. 52).

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

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

their 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, unanimously,

DECLARES THE APPLICATIONS INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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ADAMS AND BENN v. THE UNITED KINGDOM

ADAMS AND BENN v. THE UNITED KINGDOM