In R (Lord Carlile of Berriew CBE QC and others) v Secretary of State for the Home Department [2012] EWHC 617 (Admin), the Divisional Court upheld, with evident reluctance, the Home Secretary’s decision to exclude Maryam Rajavi, “an eminent dissident Iranian politician”, from the UK – denying her the opportunity from meeting in the Palace of Westminster with 16 prominent cross-party members of the House of Lords and the House of Commons to discuss democracy, respect for human rights and other policy issues relating to Iran.

Unlike other exclusion cases (e.g. Farrakhan [2002] EWCA Civ 606 [2002] QB 1391 or Naik [2011] EWCA Civ 1546), the Home Secretary does not consider Rajavi’s views to be objectionable in themselves, likely to provoke disorder or damaging to community relations. Although Rajavi is the de facto leader of the People’s Mojahedin Organisation of Iran, that organisation is now de-proscribed in the UK (but still banned in Iran). The sole basis for her exclusion is the fear that there will be unlawful reprisals by the Iranian Government if she is permitted to enter the UK. She is free to travel throughout the rest of the European Union and recently visited the European Parliament.

The Divisional Court considered that it was bound to apply the highly controversial decision in R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] 1 AC 756 – when the House of Lords upheld the SFO’s decision not to continue a criminal corruption investigation into BAe in the light of an “an ugly and obviously unwelcome threat” (by the Saudi government) to withdraw co-operation in relation to counter-terrorism.

But is this not a form of executive blackmail – the “appeasement of an undemocratic regime in the face of apprehended threats of unlawful action”, as the Claimants put it? Put another way, is it a proportionate interference with Article 10 for the government effectively to prohibit free speech by yielding to an obviously unreasonable threat?

A direct comparison with the Corner House case is difficult. The public interest in investigating serious crime could not be higher – an independent criminal justice system is one of the hallmarks of a functioning democracy. Likewise freedom of expression is the “lifeblood of democracy”  without which “an effective rule of law is not possible”. And Article 10 is now a constitutional measure such that any curtailment of it “must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved”; “freedom of expression is the rule and regulation of speech is the exception requiring justification”. A relative assessment of the  nature of the threats in each case is hard: in Corner House the withdrawal of co-operation was said to threaten “British lives on British streets”; in Rajavi’s case the Court accepted there was a credible threat of retaliation to UK citizens in Iran and to local staff employed by the British government in Iran. At the heart of the outcome of both cases was the court’s extreme reluctance to interfere with the executive’s assessment regarding policy matters.  The Divisional Court cited Lord Bingham’s dicta in Corner House about the relative institutional competence of the courts and the executive in this field – both in practical and constitutional terms.

But what does that actually translate to in real terms? It meant that although the Divisional Court was prepared to disregard some aspects of the Home Secretary’s apprehensions as not credible (e.g. that the Iranian government’s nuclear programme would be influenced by whether Rajavi was admitted into the UK), once a credible threat had been established, the Court refused to enquire any further into the assessment of that threat. But is that not, in reality, close to an abdication of the Court’s proper duty under the Human Rights Act to ensure that only proportionate interferences with Article 10 rights are permitted? Whilst the courts were slow to interfere in the executive’s assessment of whether there was a public emergency threatening the life of the nation in the Belmarsh case (A v Secretary of State for the Home Department [2005] 2 AC 68), and accorded the Secretary of State’s assessment “great weight”, it did actually perform a review of that assessment, albeit granting the executive a wide discretionary area of judgement. Indeed Lord Hoffmann, in the minority, felt able to conclude that there was no such emergency.  That assessment was in an area which would have previously been regarded as non-justiciable or ‘political’ par excellence. Here, by contrast, it is difficult to ascertain any meaningful review beyond the imposition of a ‘credible threat’ threshold. What is the minimum severity of the threat which will justify the serious interference with Article 10? Must it be to life and limb? Can it be less severe than the threat which prevailed against a different democratic public interest in Corner House and if so, why?

Perhaps the nearest parallel is with another dissident who was regarded by an undemocratic regime as a terrorist but who nevertheless met with Parliamentarians in London – the meeting of Hugh Gaitskell with Nelson Mandela in 1962. Applying the Divisional Court’s judgment, if there was any credible possibility of reprisals by the apartheid government in South Africa then any decision to exclude Mandela from entering the UK would have been unchallengeable.

Alex Bailin QC is a barrister at Matrix Chambers