UK Supreme Court: Secretary of State decision to remove the hold on an individual's listing on the UN Security Council's Consolidated List of members of Al Qaida and its associates was lawful.

This UK Supreme Court judgment signals the end of lengthy court proceedings concerning the legality of the decision of the UK's Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary) that led to the listing of an Egyptian national residing in the UK, Mr Youssef, on the UN Security Council's Al Qaida Sanctions List as a person associated with Al Qaida.  All members of the UN Security Council Sanctions Committee (of which the Foreign Secretary is a member) must agree to an individual's inclusion on the list, or a de-listing.  The Foreign Secretary, as member for the UK, had originally placed a hold on the listing of Mr Youssef but his decision in September 2005 to remove that hold meant that Mr Youssef was listed and his assets frozen.  Mr Youssef's application for judicial review of the Foreign Secretary's decision, and appeal to the Court of Appeal were dismissed. The judgment of the Supreme Court upheld that dismissal, but raises a number of interesting questions of international and public law. 

Issues before the Supreme Court

At the outset, the Supreme Court noted that the decision to remove the hold was in the exercise of prerogative powers for the conduct of foreign relations.  Whilst that did not make it immune per se, it did mean that the courts were obliged to proceed with caution. There were four key issues before the court, all of which were resolved in the Foreign Secretary's favour:-

Issue 1 – given the exceptional status of the prohibition against torture in international and domestic law, was the Foreign Secretary required not only to make no use of evidence tainted by torture himself, but also to forego participation in a decision that might be affected by such evidence? 

It was alleged that whilst the Foreign Secretary had not relied on torture-tainted evidence in coming to his decision, others on the Sanctions Committee may have done so, and that the exceptional status accorded to the prohibition against torture under international and domestic law required the Foreign Secretary to forego participation in a decision which might be affected by such evidence.

The Supreme Court concluded that the Foreign Secretary's decision was to be judged by reference to his reasons only and not the reasons of other States or the Sanctions Committee as a whole.  The prohibition on torture has a special status in international law giving rise to a duty on states to take necessary measures "within their municipal legal systems" to give effect to international rules against torture. However, the rules do not impose an obligation on states to inquire into the possible reliance on evidence acquired by torture by other states, whether on their own or as part of an international organisation such as the Sanctions Committee. There was no duty on the Foreign Secretary to inquire into the possible reliance by other Sanctions Committee members on torture-tainted evidence.

Issue 2 – given the serious interference with Mr Youssef's property rights, was there sufficient statutory authority for the Foreign Secretary to take this decision? 

Whilst the Supreme Court noted the longstanding principle that interference with individual property rights could not be justified by the exercise of prerogative powers without statutory authority, it found that the required statutory authority existed under the EU sanctions regulation which required the freezing of Mr Youssef's assets, and which has domestic legislative effect in the UK by virtue of the European Communities Act 1972 .

Issue 3 – was the standard of proof applied by the Foreign Secretary - "reasonable grounds for suspicion" of associating with Al-Qaida - too low?

The Supreme Court also dismissed this argument.  The correct test in this case was to consider the position of a decision-maker trying to assess risk in advance, which differed from trying to determine whether an individual has done something wrong after the event.  Unlike the latter, risk cannot simply be assessed on the higher standard of balance of probabilities as it involves a question of degree.  In reaching its conclusion, the Court drew support from guidelines issued by the Financial Action Task Force (FATF), which noted the "preventative" nature of designation under a sanctions regime, and that funds should be frozen based on "reasonable grounds, or on a reasonable basis, to suspect or believe" that they could be used to finance terrorist activity. A similar test was also applied by the UN Ombudsperson in her report to the Sanctions Committee.  Accordingly, as a member of that Committee, the Foreign Secretary would not only be entitled, but also expected, to apply that same standard.

Issue 4 – were the lower courts wrong in limiting the standard of review to Wednesbury unreasonableness or irrationality, or should there have been a "full merits review" or at least a "proportionality analysis"?

Mr Youssef argued that given the interference with his fundamental rights imposed by the asset freeze, there should have been a full merits review, which would involve consideration as to whether the Foreign Secretary made the right decision.  He argued that a judicial review, a lower level of review, which essentially involves a check that the decision was made in a lawful way and was not unreasonable or irrational, was not sufficient.   The Supreme Court noted that there is support for a proportionality test where interference with fundamental rights is in issue, although felt that this would be unlikely to lead to a different result from traditional grounds of judicial review, especially in cases involving national security, where the executive has a large margin of appreciation. In this case, Mr Youssef had failed to identify any particular aspect of the Foreign Secretary's reasoning which could be challenged on the basis of a proportionality test.

Further, the Supreme Court did not believe a full merits review was necessary: the UN Security Council had entrusted members of the Sanctions Committee to determine whether designation criteria had been met and it would be inconsistent for a national court to substitute its own assessment. Accordingly, the application also on this ground was dismissed.          

Comment

This judgment is of significance for a number of reasons. It affirms that, notwithstanding the deference attributed by the courts to the exercise of prerogative powers in the field of international relations, a government decision to act within the context of a UN Sanctions Committee is capable of being judicially reviewed. 

On the substance of the judgment, the ground that appeared to give the Supreme Court the most hesitation was the third, namely the proper standard of proof to be applied by the Foreign Secretary. The "troubling" nature of this issue related in particular to the Supreme Court's previous decision in the case of Ahmed v HM Treasury (No. 2) [2010] UKSC 5, where the Court had quashed two Orders in Council adopted under the United Nations Act 1946.

It had done so on the basis that the test of reasonable suspicion adopted by those Orders in relation to terrorism-related designations and asset freezes, went "beyond what is necessary or expedient" to comply with the relevant UN Security Council resolution. Nevertheless, the Court considered that in this case, where the decision did not turn on the particular construction of the UN Act, and in light of the more recent guidance provided by the FATF and the Ombudsperson (which the Court considered "might well have influenced some aspects of the reasoning" in Ahmed), the test was appropriate and the application should be dismissed.  

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