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 <the first instance> 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 <Government counsel> 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
