Binyam Mohamed: torture and secrecy; wood and trees

October 23 2009

Following on from my Charon podcast yesterday, I thought it might help to put my thoughts in writing about last Friday’s judgment. It might be farcical, except that it relates to the cruel treatment and possibly torture of a prisoner. It’s the latest in a series of judgments, of course, and there have been no appeals yet.

As the court said at the time of its ruling not to publish the summary (para. 62 of the judgment of 4 February 2009)

the United States Government’s position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom.

Bear in mind that the hearing in this matter was held in October 2008 – before the election of Barack Obama. The judgment goes on to say (para. 78)

It was submitted to us by Mr David Rose that the situation had changed significantly following the election of President Obama… We have, however, been informed by counsel for the Foreign Secretary that the position has not changed… The concern of the United States pertains not to disclosure of the treatment of detainees that might be levelled against the administration of President Bush, but to the disclosure of information obtained through intelligence sharing.

Subsequently, the judges became concerned that the Foreign Office had not given them the full picture. In particular, they had not specifically asked the Obama administration in the two weeks between the President’s inauguration and the judgment, whether it maintained the threat to review intelligence sharing. It’s clear that the judges felt the basis on which they’d ruled the first time – that the American threat remained – was wrong. Hence the second bite at the cherry.

And this time, the Court saw the position as having altered significantly. The judgment makes much (para. 79) of a letter from the CIA’s General Jones, which says (the emphasis is the Court’s)

Public disclosure of the information contained in the seven paragraphs withheld from the High Court’s open decision, as well as the documents from which the information was drawn, could likely result in serious damage to U.K. and U.S. national security. If it is determined that your Service is unable to protect information we provide to you even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in future.

This, the judges think, is very different from the position of the Bush administration. I don’t understand this, since their own decision earlier this year was on the basis that, as I’ve already quoted above

the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided… the United States Government might carry that threat out

which seems to me to be the same position. What is more extraordinary is that the judges were shown evidence that Hillary Clinton had told the Foreign Secretary in May that the threat remained (para. 90)

Clinton (who was clearly well aware of the case and the associated issues) said that the US position had not changed, and that the protection of intelligence went beyond party or politics. The US remained opposed to the UK releasing these papers. If it did so it would affect intelligence sharing. This would cause damage to the national security of both the US and UK.

Yet the judges chose in effect to ignore that, extraordinarily preferring the General’s letter as representing more accurately the views of the Obama administration (see para. 88), and saying at para. 95

while we accept on the basis of this evidence of the statement by Secretary of State Clinton that there must be some small risk that intelligence sharing would be reviewed or affected if we were to disclose the redacted paragraphs, we have been led to the conclusion that, on proper analysis, the evidence simply does not sustain the Foreign Secretary’s opinion that there is a serious risk.

To see Hillary Clinton’s comments as exaggerated, unreasonable or both, I can understand. I think they probably are. To say, as the Court does, that her reference to “the papers” calls into question her attitude to the summary, I can also understand (although there again, since the summary does indeed summarise those papers, I’m not sure there’s the gulf of difference that the judges see). But to say that her words don’t represent the views of the US government is I think breathtaking. And so, on the basis of a very close, I think unduly close, analysis of a General’s letter, the Court has stood on its head.

To make matters worse, this latest judgment has itself had to be redacted because of the Foreign Office’s fears it contained material damaging to national security. At this point I’m afraid the whole affair has begun to descend into a spiral – and risks disappearing up itself.

Whether these 25 lines should be published, I don’t know. It would be much better in my view if the American government were to agree to their release, and not doing so, and making sustained (and in my view clearly exaggerated) threats about intelligence sharing, damages their standing and the respect people have for them here. The Foreign Secretary looks ridiculous too.

But I don’t spare the Court from criticism, either. Nothing, in reality, has changed since its original ruling in February: the judges, it seems to me, simply view the American threat differently. But in all the massive detail of their numerous judgments I see increasing evidence of tree-spotting, while at the same time I supect the wood has been lost from view. The result is a Dickensian procession of confusing, self-referential judgments, with no sign of an end. I’m not sure the Court is entirely to blame for that – it will not help if the government cries national security at every turn. But some order has to be imposed on this soon, and some finality.

The sooner this goes to appeal, the better.

Charon QC podcast: the Binyam Mohamed case

October 22 2009

I spoke to Charon QC this afternoon about last Friday’s judgment in R (Mohamed) v Foreign Secretary, in which the Administrative Court ruled that it should make public in its original judgment 7 paragraphs, consisting of 25 lines, summarising American intelligence agency reports to British officers, in which they apparently admit Mohamed was subjected to cruel, inhuman or degrading treatment – possibly amounting to torture – while held in Pakistan in 2002. They had ruled back in February that the public interest in disclosure was outweighed by concerns for national security, since any publication of reports provided to British intelligence by the Americans would lead the US to review its intelligence sharing with Britain. But they reopened their judgment because they felt they had not been given an accurate picture of the American government’s attitude – and now they’ve gone the other way.

I think the whole thing is a judicial mess. I don’t say the judgment is wrong; but last week’s decision could just as well have been arrived at in February, and although the judges make great play of a supposed change in Washington’s attitude, I’m not at all convinced. Either they were wrong in February, and now realise it; or they’re wrong now.

Listen to the podcast of our discussion here.

In defence of superinjunctions

October 20 2009

I’m pleased the Guardian defeated Carter-Ruck in the Trafigura, Minton report, superinjunction affair. I don’t know or understand why a superinjunction was granted preventing publication of the fact of the injunction (as opposed to an ordinary injunction merely preventing publication of the Minton report), and I doubt it was right for the judge to grant one. But I’m afraid one or two myths have grown up about this Trafigura business.

First, some people think it was about libel, and shows the need to reform libel law. But no, it wasn’t about libel, it was about legal privilege – and superinjunctions can come in other sorts of proceedings, notably but not only those about privacy. Second, the idea has taken hold that the injunction trespassed on Parliamentary privilege – but no one has ever suggested it restricted what Parliament could do. It was scandalous enough that Carter-Ruck sought to interpret it as restricting Parliamentary reporting by the Guardian, but that is a different thing.

What I’m most afraid of, though, is that this affair will leave people with the idea that superinjunctions are always, and necessarily a bad thing, and that anyone interested in protecting free speech should be against them. I’m as fiercely in favour of free speech as anyone: but very few people believe in absolute free speech, and nor do I. I think there are some limited circumstances in which other important rights can outweigh the right to free expression, and I think superinjunctions have a place as being in some circumstances absolutely essential when nothing else will protect those rights. An example may help – this is developed from one I first thought up when commenting at Harry’s Place.

A newspaper editor much concerned about the collapse of standards in modern morality says on Newsnight that he’s obtained video evidence that a well-known and widely admired backbench MP is secretly a cross-dresser; he plans the next day to publish the video on his paper’s website to expose this simply shocking moral failure. The video was made secretly at the MP’s home by the newspaper’s political editor, who gained the MP’s trust over months by discussing his own pretended transvestism. The MP finally invited the editor to his home after the journalist asked for the MP’s advice and support over dealing with their “shared” secret. The video shows the MP drinking tea and discussing his own cross-dressing, and him and his obviously supportive wife offering moral support to the fibbing journalist in a frock.

The MP has a low profile on any issues related to transvestism, but has made statements in the local press praising the work of a local cross-dressers’ support group. His case is also mentioned in anonymised form in the book Coping with Cross-Dressing by the UK’s leading counsellor in the field, which is the first result if you search for “cross dressing” on Amazon.co.uk. Enough details of the case are given in that book to enable anyone who happens to know one of the three case histories is that of a “well-known and widely admired backbench MP” to narrow the field down to a dozen or so members; and each case history gives some further details of the people’s relationships and private life which reveal no wrongdoing but would simply be very embarrassing if their identities were made public. Most of these of course are not even about the MP at all. The MP consented to having his anonymised case discussed in the book in the hope of helping others.

Immediately following the Newsnight appearance of the moralising editor, there’s much talk on Twitter and on the MSM about the ethics and propriety of the promised exposure, about privacy, about the secret lives of transvestites, etc. etc.. A few bloggers are puzzled by a cryptic remark made by the editor, who they say seemed not to accept unreservedly Jeremy Paxman’s assertion that his paper “would be the first publication to go into print about this man’s cross-dressing”.

Does anyone think that, if the MP succeeds in getting an emergency injunction that night preventing publication of the video and any reference to Coping with Cross-Dressing, the terms of the order should leave the newspaper free to publish a story the next morning, simply naming the MP and saying he obtained an unspecified injunction against them the previous night? Or even saying that an unnamed person had obtained an injunction preventing any reference linking him to an unnamed book?

There may well be too many superinjunctions – there probably are – and one did not seem appropriate from what we know of the Trafigura affair. But don’t let’s run away with the idea that they’re never ever, ever, ever justified. Superinjunctions have a place – and can on rare occasions be essential to protect important rights.

Trafigura give up on Minton

October 17 2009

As you may well already know, Trafigura have abandoned their attempts to injunct publication of the “Minton report” – as the Guardian reported last night. I’m sorry to keep saying I told you so but the Guardian story confirms my view that the legal basis for the injunction was that the report was legally privileged, because commissioned by solicitors from experts for use in litigation.

Anyway, here now is that report, made by the scientific consultants Minton Treharne and Davies. I’ve not been following the Trafigura case beyond the legal issues that have arisen this week, so it wouldn’t be obvious to me even if this were some sort of “smoking gun” – but it doesn’t look like it. All it seems to do is confirm that the chemical compounds that were dumped in Ivory Coast are capable of producing the effects victims say they suffered – and death. I think perhaps the only reason this report is now being read by so many is because of the injunction against publication.

I’m not saying Carter-Ruck were wrong to seek an injunction – legal privilege is an important privacy right that helps guarantee fair trials, though the importance of the principle is often overlooked by people who are rightly anxious for freedom of information and of expression, even though they’d be sympathetic to principled claims to privacy in other contexts, like the secrecy of medical, social security and tax records and (as many people argue) confidentiality of DNA profiles. It may have been wrong to seek a “superinjunction” – without knowing the details it’s difficult to know, but as things stand I can’t think why it was necessary to restrain publication of the fact and terms of the injunction. On this I think questions do need to be asked, if and when they appropriately can be, as to why the court did this. Paul Farrelly was right to raise it in Parliament.

What I think must have been wrong was Carter-Ruck’s reading of the injunction as extending to Parliamentary reporting. Without being able to refer to the terms of the order (it’s not yet clear that we’re released from the ban on discussing it) I can’t tell how reasonable or unreasonable that reading was, purely as a matter of construing words, but surely any such limitation in an injunction must be set out in express terms. To argue it can be implied in an order must be wrong in principle – a sort of lawyering that sees only trees and no wood.

Of course it’s difficult to criticise them, not knowing the full detail of what passed between the parties; but surely rather than seeing the Guardian as the ones needing to go to court for a variation to have Parliamentary reporting excluded, Carter-Ruck should have seen themselves as the ones having to go to court to argue for and, if they could, justify a variation to cover reporting of the Farrelly question. If that approach is taken by the entire legal profession in future there will be much less risk that a judge’s order will unintentionally restrict free expression to this extreme and unjustifiable degree – or be wrongly characterised by anyone as doing so.

Of course this affair is a resounding tactical victory for the Guardian, not just against Trafigura and Carter-Ruck, but in its entire campaign against superinjunctions. I’m afraid Carter-Ruck scored an embarrassing own goal.

Trafigura and sub judice

October 16 2009

The Guardian today is reporting that Carter-Ruck has written to the Speaker arguing that discussion of Trafigura and the injunction against the Guardian is sub judice. Here’s the Carter-Ruck letter.

First, what the letter says. To be fair to Carter-Ruck, most of the letter is not about sub judice at all, but merely an attempt to ensure the Speaker knows the full facts about what happened. That seems to me fair enough, and as a matter of interest, Carter-Ruck confirm my suspicions about what happened – there was no injunction specifically targeted at preventing Parliamentary reporting. Rather, Carter-Ruck took the view that a general order could be read as extending to Parliamentary reporting. We don’t know what was said in close detail of course, but this incident perhaps shows the importance of lawyers in these circumstances seeking instructions having advised on possible Streisand effects before adopting any potentially “Streisandable” position in correspondence with the other side. Also as a matter of interest, the letter at no point actually says it was Trafigura who applied for the injunction.

Carter-Ruck do say they think the matter is sub judice – but as they accept in their letter, and as I’ve written before, sub judice does not prevent debate, as the Speaker always has a discretion to allow debate on matters of national importance, as this undoubtedly is.

Here’s the Commons Library research note explaining sub judice in full.

EHRC v BNP: a brilliant victory

October 15 2009

The news that the BNP has conceded the need to change its constitution in the face of legal action by the EHRC represents a brilliant victory for the equality watchdog and its legal director, John Wadham. I take my hat off to him, and them.

This is rather awkward timing for the BNP, of course, since it’s agreed not to accept new members until its consitution is changed. That means (unless they make the change very quickly indeed) there won’t be a wave of new members following Nick Griffin’s appearance on Question Time. Few people outside the BNP will mind.

2009-10-15T18:26:11+00:00Tags: , , |

Law and Sir Thomas Legg: MPs want it all ways

October 15 2009

Some MPs are, predictably, whining about the letters being sent to them by Sir Thomas Legg, who’s been auditing their expenses going back over the last few years. Ann Widdecombe for instance has suggested there’s a “legal question mark” over his approach to audit, and Martin Salter has suggested some MPs may “choose to mount a legal challenge”. This is surely sabre-rattling: I don’t see what legal challenge there can possibly be. It’s certainly against Parliament’s interest for them to be attempted. It’s quite clear Sir John Lyon is immune from any legal action, too – Iain Dale need not be concerned whether his findings in the case of David Wilshire will stand up in court.

Let’s take Sir John first. As Parliamentary Commissioner for Standards, he’s an officer of the House of Commons. As such, what he does in pursuance of his duties almost certainly counts as “proceedings in Parliament” for the purposes of the Bill of Rights 1689 (a very fashionable statute at the moment – vintage really is cool). Erskine May seems to think so – see para. 98 of the 1999 report of the Joint Committee on Parliamentary Privilege. If that’s right (and I think it must be), then nothing Sir John does may be impeached or questioned in any place outside Parliament – including in the courts. His work is subject to Parliamentary privilege, in other words – and Parliamentary privilege prevents legal action by an MP as much as by anyone else.

Aha! some clever legalistic types might interject. But if what he does is so wrong that it means he’s gone outside his remit – doesn’t that take him outside Privilege, so he can be judicially reviewed after all? This is familiar to public lawyers as “Anisminic” type thinking. In that case, legislation provided that the “determination” of a commission was not to be questioned in any court of law; the House of Lords decided it could be struck down by the courts however if it was so flawed as to be a legal nullity – and therefore not a “determination” at all.

This won’t help MPs, though, because even to ask whether what Sir John does is so flawed as to be a legal nullity (which is what you need to do according to Anisminic reasoning) is to question what he does. The concept of Parliamentary proceedings goes wider than the concept of a determination in the Anisminic case, in other words. Sir John is quite safe.

It’s less clear that Sir Thomas Legg has the status of being an officer of the House – though, since he has been appointed by the Members Estimates Committee, and will report to it, it seems reasonable to ask in what other capacity he could possibly be described as acting. Certainly, it would be extraordinary to suggest what he is doing does not amount to “proceedings in Parliament”. If I were one of these MPs Ann Widdecombe and Martin Salter have spoken to, I’d forget the idea of judicial review – the Bill of Rights will stop it.

By the way: can you imagine the scream of outrage there’d be from an MP if a taxpayer consituent of his or hers were to try to judicially review Sir Thomas or Sir John for unlawful leniency to the MP? You can bet they’d soon be crying Privilege, as many of them wrongly did in Damian Green’s case, and are wrongly doing in the case of the Guardian gag right now. Yet if these knights of the realm were judicially reviewable by MPs, then they’d be judicially reviewable by others. Indeed, if any MP were silly enough to attempt judicial review (paying Legg will cost less, for most of them, than a mad attack on him in the courts) then there’s no reason why constituents and expert bodies like perhaps the Taxpayers’ Alliance could not seek to intervene in the case. I doubt MPs really want that sort of thing, rather than keeping all this between themselves in their committees.

When it comes to Parliamentary privilege, MPs seem to want it all ways.

2009-10-15T14:56:47+00:00

Jacqui Smith, Damian Green and all that: to say the least, debatable

October 15 2009

In all this week’s discussion of Trafigura, relatively little attention has been paid to other legal stories – but HMIC’s review of the lessons learned from the Greengate-Galleygate affair deserves closer attention, I think, than it’s had. And Jacqui Smith has managed to escape without close enough scrutiny of her conduct in the affair.

One of the key findings, at para. 8.3.7 of the review, is that the police were right to search Damian Green’s office in the way they did – and specifically that they were right in law not to seek a search warrant in the first instance but to ask first for consent from the House authorities, which of course they were granted. That finding ought to lay finally to rest the nonsense talked by MPs at the time of the supposedly scandalous “failure” to obtain a search warrant.

The other key finding, at para. 8.1.10, is that

the use of police resources in this case, although well intentioned was, to say the least, debatable

This is the most important point in the whole case: the government never should have involved the police at all in the investigation of leaks that embarrassed government, rather than risking serious harm, for example to national security.

The wording of the review unfortunately reinforces the common perception, a perception very convenient for ministers, that the Cabinet Office letter (see para. 8.1.5) requesting police involvement means officials called the police in. The truth, as I’ve written before, is that Jacqui Smith made this decision by agreeing to police involvement. To be fair to her, she’s never denied that, although the evidence she and her Permanent Secretary gave to the Commons Home Affairs Select Committee can be read as implying it was a “joint” decision, or else that it was his decision “agreed” by her. Actually neither of those interpretations can be right, as anyone with any knowledge of government must know. Without her agreement, the police could not have been called in: officials may well have wanted to write, but would not have done so had Jacqui Smith not given them the go-ahead. She is responsible.

A good job she’s already gone, really.

2009-10-15T13:07:07+00:00

The Guardian, Trafigura and superinjunctions: more thoughts

October 15 2009

There’s been a lot of Trafigura traffic on the internet, for obvious reasons – and a lot of legal questions have been raised. I want to try to cut through some of that and shed some legal light if I can.

I think Richard Edwards of Bristol Law School goes too far in calling the Trafigura injunction “unlawful” in his letter to the Guardian this morning. First, it’s difficult to say this, I think, without being able to refer to the precise terms of the court’s order – and since none of us know what orders the court has made against the Guardian, and the superinjunction we know about may restrict publication and/or discussion of its terms, any such reference is difficult to make.

But what I suspect has happened here is this. First, a legally privileged document has somehow been leaked; solicitors have obtained an injunction to prevent its use and further disclosure. So far, so reasonable: many of those who are outraged by Carter-Ruck’s behaviour this week would also be outraged by publication of their own private correspondence or information (remember the HMRC leak of a couple of years ago?). Everyone must have the right to consult lawyers and prepare their legal defence in private, and if we take that principle seriously it must be enforceable and, as human rights lawyers are happy to say in other contexts, it must apply to everyone, no matter how unattractive. So I have no difficulty in the idea of an injunction being granted here in respect of the report mentioned in Paul Farrelly MP’s Parliamentary question

Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.

Whether a “superinjunction” was really necessary, preventing discussion of the fact that such an injunction has been granted, is another matter. I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances. I share Richard Edwards’ concern about this one, but there may – may – be justification for one in this case. The judge seemed to think so.

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.

A couple of legal factoids need to be addressed here, too. First, there is no question of Carter-Ruck’s behaviour being a contempt of Parliament: the Bill of Rights 1689 protects the MP himself from any court action – not anyone reporting his words. Only Parliament enjoys Parliamentary privilege.

Second, Geoffrey Robertson QC has been widely quoted as suggesting Parliamentary reporting can never be in contempt of court. Take this from the Guardian:

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that “whatever comments are made in parliament” can be reported in newspapers without fear of contempt. He said: “Four rebel MPs asked questions giving the identity of ‘Colonel B’, granted anonymity by a judge on grounds of ‘national security’. The DPP threatened the press might be prosecuted for contempt, but most published.”

I don’t think this is right, if it is what Robertson was saying – and I doubt it was, since in his own textbook on media law he makes clear that although this reflects the practical reality, “it may not strictly accord with the law”. I can’t link you to Lord Denning’s judgment in Attorney General v Times Newspapers [1973] 1 All ER 815 – it’s not on BAILII – but it’s clear from reading the relevant passage (at page 823 c) that Lord Denning’s remarks were obiter. He simply assumed this was the position while discussing a slightly different legal point. It’s going too far to say he “ruled” that this was the position. Parliament, while agreeing with Geoffrey Robertson on the practical position, certainly thinks reporting its proceedings can amount to contempt in law – see para. 204 of this report.

So reports of Parliamentary proceedings probably can be contempt of court – at least in so far as they go beyond merely quoting Parliamentary papers, which is protected from legal action under section 3 of the Parliamentary Papers Act 1840 unless done with malice (I’m not clear whether the list of questions including the Farrelly question was published under authority of the House – I suppose so). It’d be difficult for a newspaper to simply quote Parliamentary papers without any kind of comment on them at all, however. And it’s just conceivable, to me, that there might, just might, be circumstances in which an order restraining the publication of Parliamentary proceedings could be lawful, even taking the article 10 freedom of expression into account and balancing any restrictions on it against the public interest – imagine, for instance, an extremist MP who insisted on reading out in the House the address of a person who’s in fear of his or her life from terrorists, or the addresses of women’s refuges throughout the country. Unlikely, but conceivable. Wouldn’t you want to limit wider reporting of this? We ought to be able to rely on MPs’ good sense in not abusing privilege –  we couldn’t rely on their probity in claiming expenses, though, could we? And there are, and may be in future, all manner of MPs.

But clarity is vital in injunctions, particularly where they have unusual effects – and restricting Parliamentary reporting certainly is unusual. It cannot be right for an injunction to be interpreted as having such effects unless it does so by clear words – and unless the applicant makes the case for the order to contain such a term, judges should now routinely insist that wide-ranging prior restraint injunctions include an exception for fair and accurate Parliamentary reporting.

2009-10-15T18:13:58+00:00

Geert Wilders wins his appeal: I told you so

October 13 2009

Remember Geert Wilders? Back in February the Home Secretary Jacqui Smith excluded him from the UK because of his views on Islam. I wrote at the time that the decision was unlawful; an afterthought simply confirmed my view. I did an interview about the case with Charon QC, too, explaining my view and expressing the hope Wilders would appeal – I’m pleased he has done, and has won. His exclusion simply could not be reconciled with article 27.2 of Directive 2004/38, which requires that any exclusion measure

shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures…. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

The decision to exclude Wilders could never, in my view, have met this standard – his personal conduct clearly did not amount to a serious social threat, and the possible reactions of protesters to him are an irrelevant consideration.

I’ll be interested, when the ruling is available, to see whether the Tribunal’s reasoning was the same as mine.

2009-10-13T19:08:05+00:00
Go to Top