UK terrorism law under threat

Date: 30/11/1995

By Fiona McHugh

THE UK may be forced to review its controversial Prevention of Terrorism Act (PTA) if it loses a case brought by Irishman John Gallagher, who claims his right to move freely around the EU in search of work was denied by the British government.

Under UK law, the home secretary has the right to exclude any person suspected of terrorist activity from the UK. But that right may soon become a weapon of the past, if the European Court of Justice (ECJ) finds that it conflicts with EU single market law in a ruling due to be delivered today (30 November). A ruling in favour of Gallagher would be bound to provoke a storm of protest in the UK and strengthen the government's determination to call for new limits on the powers of the ECJ at next year's Intergovernmental Conference.

The Court's verdict on the Gallagher case could not come at a more sensitive time, coinciding as it does with desperate efforts by governments on either side of the Irish Sea to keep the Northern Ireland peace process on track, amid warnings that Irish Republican Army (IRA) violence could re-ignite unless there is significant progress in negotiations soon.

Gallagher, a citizen of the Irish Republic, served two years in an Irish gaol after he was convicted of possessing arms and ammunition at the Special Criminal Court in Dublin in 1983. After his release, he visited the UK several times in search of work and eventually settled there for two years, before being asked to leave. He was arrested in London on 27 September 1991, served with an exclusion order and deported to Ireland three days later. While Gallagher admits that he was active in Sinn Fein, the political wing of the IRA, during the early Eighties, he insists that he was not involved in either political or paramilitary activities at the time of his arrest.

After he unsuccessfully challenged the exclusion order in the UK courts, Gallagher took his case to the Court of Appeal in London where he claimed the government had denied him his right to free movement laid down in the Treaty of Rome. The case was referred to the ECJ for a definitive ruling.

While the treaty allows countries to waive workers' right to move freely within the bloc when national security is at risk, Union law requires that a proper appeal to independent persons be granted before exclusion orders are delivered.

A preliminary opinion given by Advocate-General Michael Elmer of Denmark earlier this year found that the UK had broken EU law by denying Gallagher an opportunity to appeal against the exclusion order before being deported. Elmer also questioned whether an appeal conducted by a UK civil servant after the event could be considered independent, although he said that the directive on the free movement of persons did not expressly forbid the appointment of government officials as appeal authorities.

While the advocate-general's opinion is not legally binding, the full Court usually follows his advice.