QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|- and -
|SECRETARY OF STATE FOR
FOREIGN AND COMMONWEALTH AFFAIRS
Jonathan Swift, Sir Michael Wood, Andrew O'Connor (instructed by Treasury Solicitors) for the Defendant and Interested Party
Hearing date: 1st July 2009
Crown Copyright ©
The Honourable Mr Justice Owen :
The claimant is 49 years of age. He is a married man who lives in London with his wife and four of his five children. He and his wife are Egyptian nationals. They arrived in the United Kingdom with three of their children on 6 May 1994. On arrival he claimed asylum; and on 29 November 1999 he and his family were granted exceptional leave to remain, subsequently extended until 28 June 2004. An application for indefinite leave to remain was refused on 25 September 2008; but he and his family were granted a further six months discretionary leave to remain until 26 March 2009. A further application by the claimant for leave to remain is currently outstanding; but on 21 May 2009 his wife and children were granted indefinite leave to remain in the United Kingdom.
(i) informing them that discussions were in progress at the UN "concerning the arrangements to be made under Security Council resolution 1822 for the review of all existing AQ designations by 2010, and the provision of a narrative summary of reasons for each listing."
(ii) advising that it was possible that the review process, once initiated, could be accelerated for the claimant at UK instigation, and that it might assist if the claimant were to make a 'Focal Point' application to the 1267 Committee (the process by which a designated person may directly petition the committee for a review of his designation under the current Guidelines of the Committee for the Conduct of its Work (see paragraph 21 below)), a course of action that had been advised by the FCO in its letter of 28 September.
(iii) stating that the FCO would itself conduct a review of all information available to it relating to the claimant's designation in order to consider whether to support his de-listing before the 1267 Committee, and asking them to send any information relevant to such a review to the FCO as soon as possible.
"The FCO has gathered the material held by the Government in order to complete a review of the claimant's designation against the criteria set out in the relevant resolutions, in particular (SIC) UNSCR 1617 (2005), and in accordance with the review procedure as set out in the section 9 of the Guidelines. Following the completion of the review procedure the FCO has concluded that the claimant's listing under the 1267 regime is no longer appropriate. Further information was requested, but has not yet been provided by the designating state. The UK will therefore contact the 1267 Committee to state that the claimant's listing is no longer appropriate and the UK will also submit and pursue a de-listing request in respect of the claimant."
"The decision taken rests on the conclusion that on the basis of the information available to him, the Secretary of State does not consider that the claimant now meets the criteria for inclusion on the Consolidated List. The conclusion reached by the Secretary of State is not determinative of the decision that will be taken by the 1267 Committee. Most obviously, any decision as to whether a person's name should be included on the Consolidated List or should remain on that list is a decision for the 1267 Committee, not for the Secretary of State acting unilaterally. Further, the decision taken by the Secretary of State is based on the information available to him. As stated above, the United Kingdom did not nominate the claimant for inclusion in the consolidated list; nor did it provide information in support of that nomination. The decision to be taken by the 1267 Committee will necessarily be taken on the basis of all information available to that committee. The 1267 Committee will determine, based on all information available to it, whether or not the claimant continues to meet the criteria for inclusion on the consolidated list."
The legality of the AQO (and of the Terrorism (United Nations Measures) Order 2006 (2006 NO 2657), the 'TO') was considered by the Court of Appeal in A,K,M, Q and G v H.M. Treasury  EWCA Civ 1187. The relevant legal context is set out in paragraphs 3 21 of the judgment of Sir Anthony Clarke MR, a section of his judgment that he acknowledged to have been derived largely from the judgment of Collins J at first instance,  EWHC 869 (Admin).
(1) If, under Article 41 of the Charter of the United Nations signed at San Francisco on the twenty sixth day of June, nineteen hundred and forty-five, (being the Article which relates to measures not involving the use of armed force) 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."
"(1) For the purposes of this Order
(a) Usama Bin Laden
(b) Any persons designated by the Sanctions Committee, and
(c) Any person identified in a direction,
is a designated person
(2) In this part, 'direction' (other than Articles 4 (2)(d) and 5(3)(c)) means a direction given by the Treasury under Article 4(1)."
Article 4(1) provides that HMT may give a direction that a person identified in the direction is designated for the purposes of the order where any condition in 4(2) is satisfied. 4(2) provides
"(2) The conditions are that the Treasury has reasonable grounds for suspecting that the person is or maybe
(a) Usama Bin Laden;
(b) a person designated by the Sanctions Committee;
(c) a person named or controlled, directly or indirectly by a designated person; or
(d) a person acting on behalf of or at the direction of a designated person."
By 4(4) HMT may vary or revoke a direction at any time.
The decision of the Court of Appeal in A, K, M, Q and G is central to the issues to which this application gives rise. All five applicants for judicial review were subject to freezing orders, in the case of A, K, M and Q under the TO, and in the case of G under the AQO. As in the claimant's case G was not a designated person as a consequence of a direction by HMT under Article 4(1), and accordingly had no right to apply to the court under Article 5(4). The only material factual distinction between the claimant's case and that of G, is that in the case of G the UK was the nominating state.
"120. I would accept the submission that the court has power to consider an application for judicial review by a person to whom the AQO applies as a result of designation by the Committee and, on such an application, to ask the court, so far as it can, to consider what the basis of the listing was. This will not be a challenge to the AQO itself but, if to take the example of G it were held that G should not have been listed, I see no reason why HMT (or the relevant Government body) should not, as the judge put it, be bound to support delisting. I feel sure that, if it were so held, HMT would wish to have G de-listed and take appropriate steps to that end.
119. So far as possible in the circumstances, G should be put in the same position as he is as a subject of a direction under the TO, with the right to challenge it under article 5(4) of it. There must be procedures to enable him, again so far as possible, to discover the case against him, so that he may have an opportunity to meet it. This may involve, as in the case of the TO, appropriate use of a special advocate. How the system will work in a particular case will depend upon the circumstances, as the House of Lords held is appropriate in the control order cases in MB and AF. There may be greater difficulties in a case where HMT knows nothing of the facts upon which the designation was made by the Committee. I would leave the possible problems in such a case to be solved when they arise. Here there is no such problem because HMT knows all the facts relevant to the TO and must know either all or most of the facts which led to G's designation by the Committee.
121. In these circumstances, I would not set aside the AQO as the judge did. Although I would answer the question whether the AQO was unlawful in the negative, I would hold that G is entitled to a merits based review of the kind I have indicated."
"The Al Qaida Order
146. The particular vice identified in the Al Qaida Order is that it is self-executing. The respondent G thus had no way of challenging his designation once he was named by the Security Council. The unnerving aspect of his case and there is no reason why it should be unique is that it was the United Kingdom's security services which asked the Security Council to nominate him in the first place. By this simple means, given the provisions of the Order, judicial oversight is apparently avoided.
147. Unless an effective form of judicial review is available to challenge the nomination, this would in my view be a use of delegated powers to block access to the courts and accordingly a fatal flaw in the Order. But, although I am not sanguine about the viability of a merits review in the face of security-sensitive material, I do not dissent from the holding of the Master of the Rolls that such review is in principle available under the Al Qaeda Order. I stress the word "under": contrary to the Treasury's submission, it is not necessary for the individual affected to show the material part of the Order to be ultra vires; it will be sufficient if he can establish that he should not have been listed.
148. But the foregoing, which is necessarily broad and predictive, may prove over-optimistic. If it does, and if it turns out either generally or in any one case that judicial review is unable for legal or practical reasons to afford an effective challenge to listing, I see no reason why the present claim might not be renewed, since the premise of our decision upon it would have proved false. In that event it is the vires of this part of the Order which will be in issue."
"157. In my view therefore, subject to severance of the three words, the TO is valid. The issue as to the validity of the AQO raises a particular problem to which, in my view, the Master of the Rolls finds a sufficient, creative solution in  to  above, namely in a merits-based judicial review of the executive's response to a person's application to it that it should request, or support his own request, for de-listing by the Sanctions Committee. I cannot associate myself with the observation of Sedley LJ at  above that it is unnerving that it was our own government which requested the Committee to designate G. In relation to him it clearly wanted to achieve the global effect of designation at UN level; although its grounds must have seemed good to the Committee, it is impossible for us to assess their strength. Nor can I endorse his observation, at  above, that the process to which G has been made subject "sidesteps" Article 4 of the AQO. In that there is no doubt about G's identity as a person designated by the Committee, there has been no room for a direction under Article 4; and I do not entirely understand why our conclusion as to the validity of the AQO should turn on its absence in his case."
" must know either all or most of the facts which led to G's designation by the Committee. "
In this case HMT or the relevant Government body does not know all, and may not know most of the facts leading to designation. The Master of the Rolls went on to acknowledge at paragraph 119 that there may be " greater difficulties in the case where HMT knows nothing of the facts upon which the designation was made." That is not this case; but such difficulties will also arise where FCO knows some, but not all of the facts upon which the decision by the 1267 Committee was based. FCO felt able to carry out a review on the material available to it, but there is no means of knowing whether the outcome would have been the same had it known all the facts available to the 1267 Committee.
"There runs through the English constitution an inseparable connection between the means of enforcing a right and the right to be enforced which is the strength of judicial legislation the Englishman whose labours gradually framed the complicated set of laws in institutions which we call the Constitution, fixed their minds more intently on finding remedies for the enforcement of particular rights (or what is merely the same thing looked at from the other side) for averting definite wrongs, than any declaration of the Rights of Man or Englishman. The Habeas Corpus Acts declare no principle in defining their rights, but they are for practical purposes worth a hundred constitutional articles of guaranteeing individual liberty this connection between rights and remedies depends upon the spirit of law pervading English institutions."
"I consider first whether there is any principle of construction which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum; statutes are drafted on the basis that the ordinary rules and principles of the common law would apply to the express statutory provisions As a result Parliament is presumed not to have intended to change common law rules unless it has clearly indicated such intention either expressly or by necessary implication"
And at 575D:
"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 effect the legal rights of the citizen or the basic principles upon 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 overwritten by general or ambiguous words. This is because there is too great a risk that the full implications of the 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."