The claimants were British nationals. The Home Secretary cancelled their passports under the royal prerogative as persons who were suspected of involvement in terrorist related activities. The claimants sought judicial review of that decision contending, inter alia, that the purported use of the royal prerogative to circumvent the Terrorism Prevention and Investigation Measures Act 2011 was unlawful, or that the policy setting out her purported powers under the prerogative as contained in a written ministerial statement (“WMS”) was insufficiently precise to meet the requirements of “lawfulness” under the common law, European Union law and the Convention for the Protection of Human Rights and Fundamental Freedoms. The second claimant contended, inter alia, that the Home Secretary had acted in breach of EU law because of insufficient procedural safeguards, insufficient justification and no advance consultation, contrary inter alia to Parliament and Council Directive EC/2004/38 (the “Free Movement Directive”) and the Charter of Fundamental Rights of the European Union.
On the claim—
Held, claim dismissed. (1) It was well known and long established that the right to withhold and to withdraw UK passports was governed by the royal prerogative. There was a clear public benefit in the retention of the power to withhold or to withdraw a passport in connection with terrorism related activities. The powers conferred under the 2011 Act in relation to passports represented only a small part of the scheme and the majority of the terrorism prevention and investigation measures (“TPIMs”) conferred on the Home Secretary by the 2011 Act were unconnected with the possession of passports. The powers relating to travel restrictions were wider and more draconian than the Royal prerogative power. They provided for a whole range of powers by which travel could be restricted, as a matter of fact and law and on threat of criminal sanction. There were therefore major differences between the intended and actual sphere of operation of the royal prerogative and the 2011 Act. There was very far from being a complete overlap. The likely reality was that the 2011 Act would never be used simply to implement a passport travel measure. Its most likely use would be to implement a suite of measures of which a passport travel measure might be one, among many. Equally, where TPIMs were being implemented it was unlikely that the royal prerogative would be exercised at the same time. The practical operation of the TPIM regime and the royal prerogative were likely to remain distinct. As such, it was incorrect to assert that the continued existence of the royal prerogative would render provisions of the 2011 Act otiose. Accordingly, it was not to be implied that Parliament had intended to abrogate the royal prerogative power in relation to terrorism related activities when it enacted the 2011 Act (paras 48, 51, 62–65).
(2) The WMS gave a number of examples of persons whose activities were such that it was not in the public interest that they should continue to enjoy passport facilities. Notably, that included persons seeking to travel abroad to engage in terrorism-related activity. The Home Secretary had taken decisions on the cancellation or revocation of passports on the basis of all the material available to her. The WMS made clear it was based on a “careful consideration of a person’s past, present or proposed activities”. It provided sufficient information about the categories of case which would engage the royal prerogative power. There was no need for a public statement of the circumstances in which prerogative, as opposed to statutory, powers would be used. The WMS stated in terms that there were occasions on which other legislative options were not suitable. Accordingly, the Home Secretary’s policy was not unlawful (para 71).
(3) It was recognised that an especially wide margin of discretion was left to member states where matters of national security were at stake. It was clear that the decision to cancel the second claimant’s passport had been made in the interests of national security and met the justification requirements of article 27 of the Free Movement Directive. Although the Home Secretary’s decision involved a consideration of facts it essentially involved a risk assessment being made in the light of policy as set out in the WMS. That assessment was prospective in focus; it involved elements of judgment and evaluation, and that judgmental and evaluative exercise required experience and expertise. There was no necessity for fact finding, and judicial review was an appropriate and sufficient form of redress. There were obvious concerns in a national security context that the exercise of the royal prerogative to cancel or withdraw a passport could be undermined by the provision of advance warning of the potential exercise of the power. Such concerns militated strongly against the existence of a general duty to afford an opportunity to make representations prior to its exercise. While the right to good administration, as enshrined in article 41 of the Charter of Fundamental Rights of the European Union, reflected a general principle of EU law and was violated on the facts, member states were entitled to withhold disclosure, and hence restrict the right to make representations, on grounds of national security. Accordingly, there had been no breach of EU law in any of the aspects alleged (paras 85, 89, 106, 107, 110, 115–118).
Hugh Southey QC and Barnabas Lams (instructed by Arani and Co) for the first claimant.
Daniel Beard QC, Nikolaus Grubeck and Jack Williams (instructed by Hickman & Rose) for the second claimant.
James Eadie QC and David Blundell (instructed by Treasury Solicitor) for the Home Secretary.