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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mastafa v HM Treasury [2012] EWHC 3578 (Admin) (13 December 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/3578.html Cite as: [2012] EWHC 3578 (Admin), [2012] WLR(D) 383, [2013] 1 WLR 1621 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Gulam Mastafa |
Appellant |
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- and - |
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H.M. Treasury |
Respondent |
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Mr Jonathan Swift Q.C. & Mr Steven Gray (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 28 November 2012
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Crown Copyright ©
Mr Justice COLLINS :
"The Treasury may make a final designation of a person for the purposes of this Part if –
(1) they reasonably believe –
(2) (i) that the person is or has been involved in terrorist activity …"
A final designation lasts for a period of one year but can be renewed, which is why there are two material designations in this case.
"The orders provide for the freezing, without limit of time, economic resources and financial services available to among others, persons who have been designated. Their freedom of movement is not, in terms, restricted. But the effect of the Orders is to deprive the designated persons of any resources whatsoever. So in practice they have this effect. Persons who have been designated, as Sedley LJ observed in the Court of Appeal, are effectively prisoners of the State."
"A person making rules of court must have regard to –
(a) the need to secure that the decisions that are subject of the proceedings are properly reviewed, and
(b) the need to secure that disclosures of information are not made where they would be contrary to the public interest."
Section 66(4) authorises the making of rules which enable "the proceedings to take place without full particulars of the reasons for the decisions … being given to a party .."
"Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention."
The rules are contained in CPR Part 79. They follow the requirements of the Act.
"The purpose of the order is to hamper Iran's nuclear and ballistic programmes by shutting out Bank Mellat from the UK financial sector and, perhaps, by restricting its access to the global financial system as well. Thus, the target of the order is Bank Mellat: it will not serve its purpose unless Bank Mellat's access to the UK financial sector is cut off. The purpose of the exclusion order challenged in Maaouia was not to impair the applicant's private and family life or to prevent him from undertaking employment in France. It was to exclude him from France."
Thus he decided Article 6 did apply. That decision was upheld by the Court of Appeal: see [2012] QB 91.
"In relation to many Article 6.1 arguments I readily accept that a balancing exercise will be appropriate. However, there are irreducible minimum rights which Article 6.1 like the common law (albeit that the minimum rights may not always be identical: see Al Rawi v Security Service [2012] 1 AC531), requires to be accorded to any party involved in litigation to which the Article applies."
"What seems to me to emerge from the present Strasbourg jurisprudence is that, while civil rights within the autonomous meaning of Article 6 can be brought into play either by direct challenge or by administrative action it is the nature and purpose of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights. Thus, for example, the nature and purpose of taxation are such that, despite its direct impact on property rights, taxation falls outside Article 6; while the nature and purpose of professional regulation are such that its impact on the right to earn a living may bring it within Article 6."
I confess that I have real difficulty in the first sentence since to say that civil rights can be brought into play "either by direct challenge or by administrative action" seems to refer to different things and I am far from clear how 'direct challenge', presumably by a person affected, can bring civil rights into play. Further, the examples then given of the distinction between taxation and professional regulation do not obviously follow from the first sentence. The reality is that the ECtHR, as it said in Ferrazzini, took into account that taxation was a general burden imposed on all citizens and so the effects of taxation, common to all, were not to be regarded as affecting civil rights.
"In my judgment the critical question is therefore the one spelt out in paragraph 24 above, uncoloured by the rhetoric of state sovereignty. I confess that because the nature and purpose of freezing orders can themselves be legitimately described both as a step in the international struggle to contain terrorism and as a targeted assault by the state on an individual's privacy, reputation and property. The heart of Keith J's decision [2010] EWHC 1868 (Admin) was that the orders were in form the first but in substance the second of these things; but I am not convinced that the Strasbourg jurisprudence looks to this distinction. It seems to look, rather, to the nature of the power itself. So seen, the making or procuring of a freezing order is, I think, a discharge of public functions, albeit with a dramatic impact on the civil rights of individuals. It is challengeable in public law, but the challenge is to the procuring and continuance of the order, not to its effects."
"Accordingly, Mr Jones submits that the draughtsman must have had in mind – and so Parliament must have had in mind – an assumption that Article 6 applied. That is not what the section says. All it says is that nothing in the section or in the rules must be read as requiring the court to act in a manner inconsistent with Article 6. If in fact the section and the rules are of a kind which do not result in decisions, challenges to which attracts rights under Article 6, so the statutory saving is satisfied. The draughtsman could have provided that the rules were subject to the procedural requirements of Article 6, but he did not. And Parliament, in my judgment, cannot be taken to have enacted Sections 66 and 67 so as to require them to be read as if Article 6 applied."
Mr Squires has drawn my attention to the explanatory notes which accompanied the Bill which became the CTA for both the House of Commons and Lords. Explanatory notes are a legitimate aid to construction, in that they can cast light on the 'objective setting or contextual scene of the statute and the mischief at which it is aimed.' And if there is contained in the notes a clear assurance by the executive about the meaning of a clause, that can be admitted against the executive in legal proceedings: see per Lord Steyn in R(Westminster City Council v NASS [2002] 1 WLR 2956 at paragraphs 5 and 6 on p.2959.
"Clause 56 is a permissive clause outlining the potential scope of the rules of court to be prepared in connection with asset freezing proceedings. Clause 58 includes provision allowing the Treasury to withhold material which would otherwise have to be disclosed. But subsection (6) provides that the clause (or rules of court made under it) does not require the court to act in a manner inconsistent with the applicant's Article 6 ECHR rights. The House of Lords recently considered (in Secretary of State for the Home Department v MB [2007] UKHL 46) the corresponding (and virtually identical) provision of the Prevention of Terrorism Act 2005 allowing the withholding of evidence (and use of special advocates), noting that the provision would not normally infringe an applicant's Article 6 rights, but that it could in extreme cases. The House of Lords therefore ruled that it did not infringe Article 6, provided that an express preservation of the Article 6 rights was implied into the provision. For that reason, the qualification on the Rules' ability to provide for proceedings which proceed without telling the applicant the nature of the case against him, has been expressly stated in the Counter-Terrorism Bill, so that the wording of the clause reflects the meaning the court would give it. In the light of the House of Lords decision, the provision is human rights compliant."
"Subsection (6) however makes it clear that nothing in Clause 71, or in rules of court made under Clause 71, is to be seen as requiring the court to act in a manner incompatible with the right of the applicant to a fair hearing. This provision is included to ensure that this Part, and rules of court made under it, comply with the European Convention on Human Rights following the House of Lords decision in Secretary of State for the Home Department v MB."
"By way of emphasis I should add that I would need a great deal of persuasion to accept that the standard of fairness set by the common law for the determination of issues arising in civil litigation is any less robust than the standards set by Article 6 of the Convention."
Smith LJ at paragraph 31 seems to have considered in agreeing that there was no difference in the approach to fairness between Article 6 and the common law that had it been necessary the common law would require such disclosure as would achieve fairness. I say had it been necessary since the Court of Appeal in Maftah was not asked to consider the position a common law as the only preliminary issue that had been listed before it was whether Article 6 was engaged.
"Both involve the making of orders on the basis only of reasonable suspicion of terrorist activity and, of course, both involve identical schemes for the admission of closed material and the use of special advocates."
The variation of reasonable suspicion to reasonable belief for TPIMs has not made any difference since it is accepted that Article 6 applies to TPIMs. The contrary is clearly unarguable.
"Even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocates with information with which to refute them, if such information existed, without his having to know the detail of sources of the evidence which formed the basis of the allegations."
As the head note to the report of AF(No3) states at [2012] 2 AC270 E-F, a controlee had to be given sufficient information about the allegation against him to enable him to give effective instructions to the special advocates in relation to them.
"The context will always be crucial to a resolution of questions as to where and how this balance is to be struck. Mr Tariq was employed by the Home Office in a capacity for which security clearance was required in the interests of national security. To be effective, security vetting will usually, if not invariably, require to be carried out in secret. Its methods and the sources of information on which it depends cannot be revealed to the person who is being vetted. Those who supply the information must be able to do so in absolute confidence. In some cases, their personal safety may depend on this. The methods, if revealed to public scrutiny, may become unusable. These are the unusual circumstances in which the claim Mr Tariq seeks to make in this case must be determined."
"But the balancing exercise called for in paragraph 217 of the judgment in A v UK depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself."