|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Youssef, R (On the Application Of) v The Secretary of State for Foreign, Commonwealth and Development Affairs  EWHC 3188 (Admin) (26 November 2021)
Cite as:  EWHC 3188 (Admin),  WLR 2454,  1 WLR 2454
[New search] [Context] [View without highlighting] [Printable PDF version] [Buy ICLR report:  1 WLR 2454] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of HANY YOUSSEF)
|- and -
|THE SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS
| - and -
Sir James Eadie QC and Maya Lester QC and Malcolm Birdling (instructed by Government Legal Department) for the Defendant
Hearing dates: 13th & 14th October 2021
Crown Copyright ©
Covid-19 protocol: this judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and others, and publication on the courts and tribunals judiciary website. the date and time for hand-down is deemed to be 11:30am on 26 November 2021.
Mr Justice Garnham:
"whether the mechanism in sections 25 and 38 of the 2018 Act, with its focus on the request and its provision for judicial review of the Secretary of State's decision on the request, is sufficient, consistently with the UK's obligations under the UN Charter, to meet the claimant's common law and Article 6 and Article 8 ECHR rights to have the arbitrariness of the listing reviewed by a court."
THE FACTUAL BACKGROUND
"In terms of the 1267 Committee and the process undertaken by other member states in evaluating [requests for listing], it is important to note that the evaluation of the material provided by a Designating State is conducted away from the Committee, and the UK is not party to the internal evaluation processes conducted by other Member States. When the UK evaluates listing requests made by other Member States, the UK's decision whether or not to agree a proposed listing may be based upon or influenced by information at the disposal of UK officials, which would not necessarily be shared within the Committee itself. "
"…The information submitted [to the UN] in support [of the Claimant's designation] relied on his conviction in Egypt in absentia for membership of a terrorist group. This information, as the Secretary of State knew, included evidence that had been or may have been obtained by torture."
"The effect of the regime… is that every transaction, however small, which involves the making of any payments or the passing of funds or economic resources whether directly or indirectly for the benefit of a designated person is criminalised. This affects all aspects of his life, including his ability to move around at will by any means of private or public transport."
THE LEGAL FRAMEWORK
"(a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons' benefit, by their nationals or by any persons within their territory;…"
"If, under Article forty-one of the Charter of the United Nations … the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order."
"ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations." ().
"An appropriate Minister may make sanctions regulations where that Minister considers that it is appropriate to make the regulations … for the purposes of compliance with a UN obligation….".
"(1) This section applies where—
(a) the purpose, or a purpose, of a provision of regulations under section 1 is compliance with an obligation to take particular measures in relation to UN-named persons that the United Kingdom has by virtue of a UN Security Council Resolution ("the Resolution"), and
(b) for that provision of the regulations to achieve its purpose as regards that obligation, the relevant UN-named persons need to be designated persons for the purposes of that provision.
(2) The regulations must provide for those persons to be designated persons for the purposes of that provision."
"This section applies where—
(a) the purpose, or a purpose, of a provision of regulations under section 1 is compliance with an obligation to take particular measures that the United Kingdom has by virtue of a UN Security Council Resolution ("the Resolution"),
(b) a person is a designated person for the purposes of that provision, and
(c) the person is such a designated person under provision included in the regulations by virtue of section 13 (persons named by or under UN Security Council Resolutions).
(2) The person may request the Secretary of State to use the Secretary of State's best endeavours to secure that the person's name is removed from the relevant UN list.
(4) On a request under this section the Secretary of State must decide whether or not to comply with the request."
COMMON GROUND AND THE COMPETING CASES
DISCUSSION - THE RIGHT OF ACCESS TO THE COURT
Common law and Ahmed
"A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament."
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
"I would accept (counsel's) proposition that, as fundamental rights may not be overridden by general words, section 1 of the 1946 Act does not give authority for overriding the fundamental rights of the individual. It does not do so either expressly or by necessary implication."
"I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As (counsel) indicates, seeking a judicial review of the Treasury's decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that article 3(1)(b) of the AQO , which has this effect, is ultra vires section 1 of the 1946 Act. "
"I do not accept that the 1946 Act authorises such wide-ranging legislation. The natural meaning of the wording of section 1, when read with the wording of article 41 of the Charter, imposes limits on the power granted by section 1. That power is to make such provision as appears necessary or expedient for enabling the effective application of "measures not involving the use of armed force" which the Security Council has decided "are to be employed to give effect to its decisions". Measures to which the 1946 Act refers must necessarily have a degree of specificity. They have to be capable of being "employed" or "effectively applied". They will often be the means to an objective rather than the objective itself. Preventing terrorists from using the territory of the United Kingdom for terrorist acts is an objective, it is not a "measure". It is not something that can be "employed" or "applied."
"…having regard to the principle stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Pierson  AC 539, 575, I have come to the conclusion that, by enacting the general words of section 1(1) of the 1946 Act, Parliament could not have intended to authorise the making of AQO 2006 which so gravely and directly affected the legal right of individuals to use their property and which did so in a way which deprived them of any real possibility of challenging their listing in the courts."
"So here, in my view, section 1(1) was and is an inappropriate basis for the Al-Qaida Order, freezing indefinitely the ordinary rights of individuals to deal with or dispose of property on the basis that they were associated with Al-Qaida or the Taliban, without providing any means by which they could challenge the justification for treating them as so associated before any judicial tribunal or court, at a domestic or international level. On this basis, I would hold that section 1(1) did not extend to authorise the making of article 3(1)(b) of that Order".
Ground 1 - Art 6 ECHR
"Article 6 § 1 of the Convention in principle requires that a court or tribunal should have "full jurisdiction" to hear a complaint, that is to say jurisdiction to examine all questions of fact and law that are relevant to the dispute before it ... This means, in particular, that the court must have the power to examine point by point each of the litigant's grounds on the merits, without refusing to examine any of them, and give clear reasons for their rejection. As to the facts, the court must be able to examine those that are central to the litigant's case."
"restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation of the right of access to a court, including jurisdictional immunity under international law, will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"As a result, in view of the seriousness of the consequences for the Convention rights of those persons, where a resolution such as that in the present case, namely Resolution 1483, does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided. By limiting that scrutiny to arbitrariness, the Court takes account of the nature and purpose of the measures provided for by the Resolution in question, in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security.
In such cases, in the event of a dispute over a decision to add a person to the list or to refuse delisting, the domestic courts must be able to obtain – if need be by a procedure ensuring an appropriate level of confidentiality, depending on the circumstances – sufficiently precise information in order to exercise the requisite scrutiny in respect of any substantiated and tenable allegation made by listed persons to the effect that their listing is arbitrary. Any inability to access such information is therefore capable of constituting a strong indication that the impugned measure is arbitrary, especially if the lack of access is prolonged, thus continuing to hinder any judicial scrutiny. Accordingly, any State Party whose authorities give legal effect to the addition of a person – whether an individual or a legal entity – to a sanctions list, without first ensuring – or being able to ensure – that the listing is not arbitrary will engage its responsibility under Article 6 of the Convention."
(i) the court should resolve any ambiguity in the terms of a UN Security Council Resolution in a manner which respects Article 6;
(ii) if a Security Council sanctions Resolution does not contain explicit wording limiting respect for human rights, the Court should presume that those measures are compatible with the Convention;
(iii) if such a Resolution does not exclude the possibility of judicial supervision of the measures taken for its implementation, it must be understood as authorising the courts of the respondent State to exercise scrutiny of such measures;
(iv) the level of scrutiny required is such that will avoid arbitrariness; and
(v) the required level of scrutiny is limited in that way in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security.
"The Court reiterates that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish facts and interpret domestic law. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair as required by Article 6 § 1..."
…The Court is perplexed by (the domestic court's) conclusion and cannot see how it could be reconciled with the abundant evidence to the contrary, and, first of all, with the findings made in the judgment of 14 February 2001, or the replies from public officials. In the Court's view, the unreasonableness of this conclusion is so striking and palpable on the face of it that the decisions of the domestic courts in the 2002 proceedings can be regarded as grossly arbitrary, and by reaching that conclusion in the circumstances of the case the domestic courts in fact set an extreme and unattainable standard of proof for the applicant so that his claim could not, in any event, have had even the slightest prospect of success."
"The Court observes that the Supreme Court's reasoning does not amount merely to a different reading of a legal text. For the Court, it can only be construed as being "grossly arbitrary" or as entailing a "denial of justice", in the sense that the distorted presentation of the 2007 judgment in the first Bochan case (cited above) had the effect of defeating the applicant's attempt to have her property claim examined in the light of the Court's judgment in her previous case in the framework of the cassation-type procedure provided for under domestic law (see paragraphs 51-53 above). In this regard, it is to be noted that in its 2007 judgment the Court found that, given the circumstances in which the applicant's case had been reassigned by the Supreme Court to lower courts, the applicant's doubts regarding the impartiality of the judges dealing with the case, including the judges of the Supreme Court, had been objectively justified..."
"it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation... That being so, the Court will not question the interpretation of domestic law by the national courts, save in the event of evident arbitrariness…in other words, when it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary conclusions and/or a denial of justice." (emphasis added).
"More generally, the court should in my view be very slow to grant a substantive remedy in the circumstances now facing the court. Judicial review is a discretionary remedy. The court is not required to ignore the appellant's own conduct, or the extent to which he is the author of his own misfortunes. I appreciate that the material disclosed by the Ombudsperson's report became available after the Court of Appeal's judgment, and indeed after the grant of permission to appeal to this court. It is not formally in issue before us. Further the appeal raised important issues of law which needed a decision. I can understand therefore why it was decided to defer for the moment detailed consideration of any challenge to the latest decision. However, the fact remains that there is before the court unchallenged evidence showing that the appellant is at least a strong vocal supporter of Al'Qaida and its objectives. That stands uneasily with his simple denial in 2010 of any involvement in terrorism. If those allegations were misplaced, I would have expected him to want to say so publicly at the first opportunity. I raised my concern with Mr Otty at the opening of the appeal, but I heard no convincing answer. Even if the appellant were otherwise entitled to some relief, I would be very hesitant about granting it so long as these allegations stand unrefuted."
Ground 2 - Article 8 ECHR