Law Report: Exclusion Order Is Upheld
Ying Hui Tan, Barrister, The Independent (London, England)
Although the reasons for executive decisions which restricted fundamental freedoms and rights should be closely scrutinised by the courts, if such a decision was made in the interests of national security, that was sufficient to preclude any inquiry by the court into the rationality of the decision and the decision had to be accepted by the court without further scrutiny.
Mr Justice Sedley dismissed an application by Kevin McQuillan for judicial review of an exclusion order against him.
The applicant, aged 34, lived in Belfast with his wife and three children. He was a former member of the Irish Republican Socialist Party, a legal organisation. He had been the target of two serious assassination attempts in recent years. His house had been bombed by the Ulster Freedom Fighters.
In 1993 the Home Secretary made an exclusion order against the applicant under the Prevention of Terrorism (Temporary Provisions) Act 1989 prohibiting his entry into Great Britain. The applicant, who wished to move to Britain because of the threat to his life, applied for the order to be revoked. The Home Secretary refused on the ground that the applicant had been concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland, and that his exclusion appeared to be expedient to prevent further acts. He said further detailed reasons were not possible in the interests of national security.
The applicant applied for judicial review of the Home Secretary's decisions on the grounds that (1) they contravened articles 2 and 3 of the European Convention on Human Rights - everyone's right to life shall be protected by law and no one shall be subjected to inhuman treatment; (2) under domestic law, national security did not render the issue non-justiciable and (3) under the European Treaty the applicant could not be denied an unfettered right of free momvement within the UK.
Frances Webber (BM Birnberg & Co) for the applicant; Neil Garnham (Treasury Solicitor) for the Home Secretary.
MR JUSTICE SEDLEY said freedom of movement, subject to the general law, was a fundamental value of the common law. The power given by Parliament to the Home Secretary to restrict freedom of movement was a Draconian measure. The courts would scrutinise his reasoning closely and draw the boundaries of rationality tightly round his judgment. The …
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Publication information: Article title: Law Report: Exclusion Order Is Upheld. Contributors: Ying Hui Tan, Barrister - Author. Newspaper title: The Independent (London, England). Publication date: September 23, 1994. Page number: Not available. © 2009 The Independent - London. Provided by ProQuest LLC. All Rights Reserved.