Sunday, 16 November 2014
Lord Sumption gets into his groove....
In direct contrast to Lord Kerr for the minority (of one), Lord Sumption encapsulates the traditional and in my view, correct if not only possible (if the current constitutional peace is to be kept and respected) response to such issues.
Neuberger P and Hale and Clarke JJSC follow him in the result, although Hale and Clarke in particularly make it clear that they morally support Kerr but feel forced on the law to follow Neuberger and Sumption.
This is just a flavour of an exceptionally sharp and well crafted judgment:
This gives rise to what is surely the central issue on this appeal. How is the court to determine where the balance lies if (i) it has no means of independently assessing the seriousness of the risks or the gravity of the consequences were they to materialise, and (ii) the Secretary of State is not shown to have committed any error of principle in her own assessment of them. For that is indeed the position in which the court finds itself. We are not in point of law bound to accept the factual assessment of the Foreign Office about the impact on our relations with Iran of admitting Mrs Rajavi to the United Kingdom. But if we reject it we must have a proper basis for doing so. In this case, there is none. There is no challenge to the primary facts. We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the Foreign Office. We have only the material and the expertise to assess whether the Home Secretary has set about her task rationally, by reference to relevant matters and on the correct legal principle. Beyond that, in a case like this one, we would be substituting our own decision for that of the constitutional decision-maker without any proper ground for rejecting what she had done. All the recent jurisprudence of this court has rejected that as an inappropriate exercise for a court of review, even where Convention rights are engaged. Yet that appears to be where Lord Kerr’s analysis leads. “We do not ask whether the Secretary of State’s view is tenable”, he says (para 158), “but whether it is right.” Notwithstanding the respect which in earlier parts of his judgment Lord Kerr has acknowledged is due to the executive’s assessment of questions of
national security, this is in fact nothing less than a transfer to the courts of the constitutional function of the Home Secretary, in circumstances where the court is wholly incapable of performing it.