Where fundamental rights are interfered with, a proportionality approach to review is appropriate

Supreme Court of United Kingdom: Deciding upon the issues involved in the appeal seeking a full merits review of the Foreign Secretary’s refusal to support the delisting of the claimant from the United Nations’ consolidated list of persons  associated with terrorism,  the 5-Judge Bench  held that the source of the Foreign Secretary’s powers under domestic law lay in the exercise of the prerogative to conduct foreign affairs so that, although the decision was not immune from judicial review, it was in an area in which the courts moved with caution. The decision was that of the Foreign Secretary, not of the UN sanctions committee, and was to be assessed by reference to his reasoning.

The claimant, an Egyptian national, arrived in United Kingdom in 1994 and was refused asylum by reason of his alleged membership of a  terrorist organisation. He was convicted of terrorism, in his absence, by an Egyptian military court, probably on the basis of evidence obtained by torture. In March 2005 an undisclosed designating state, subsequently identified as Egypt, requested the Sanctions Committee of the UN Security Council to add the claimant’s name to the consolidated list of persons to be treated as associated with a terrorist group. The United Kingdom placed a hold on the proposed designation in order to allow the Government to consider whether he met the criteria for designation. In September 2005 the Foreign Secretary concluded, on evidence not obtained by torture, that the claimant should be included in the consolidated list and accordingly lifted the hold on listing. Consequently, the claimant’s assets were frozen and he was also made subject to the European Union’s sanctions regime.  The claimant gave a bare denial of  the sanctions committee’s reasons for his listing and sought judicial review of the Foreign Secretary’s lifting of the hold and his refusal to extend his grounds of support for delisting on the basis that evidence tainted by torture had been relied on by other members of the sanctions committee in making the designation. The Divisional Court of the Queen’s Bench Division dismissed the claim.

The Court observed that on facts, it was not shown that there was any aspect of the Secretary of State’s decision which was in fact open to challenge “even applying a proportionality test”. The appellant had not shown that quashing the 2005 decision “would have any substantive effect on his present position” as it would not detract from the evidence in the UN Ombudsperson’s report which had prompted the Secretary of State to support the claimant’s continued designation on the list. The Court emphasised that judicial review is a discretionary remedy, which does not require the court “to ignore the appellant’s own conduct, or the extent to which he is the author of his own misfortunes”. Although the Ombudsperson’s report was not formally in issue (it had only become available after the grant of permission to appeal), the fact remained that there was unchallenged evidence indicating that the appellant was a strong vocal supporter of terrorism.

The  Court also observed that since the interference with the claimant’s property rights was directly and specifically authorised by Council Regulation (EC) No. 881/2002, as amended, which was given legislative effect by the European Communities Act, 1972, there was no breach of the principle that such State interference in the exercise of prerogative powers had to be supported by statutory authority.

Dismissing the appeal, Lord Carnwath, JSC (with whom Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Wilson and Lord Sumption, JJSC agreed),  observed that “the review should be that conducted in accordance with ordinary common law principles which incorporated notions of proportionality where interference with fundamental rights was in issue; that such a test would be unlikely to lead to a different result from traditional grounds of review based on rationality, in particular where national security was involved; that a full review of the Foreign Secretary’s decision on the merits was inappropriate since the Security Council had entrusted to member states, as members of the sanctions committee, the task of determining whether the designation criteria were fulfilled and it would be inconsistent with that regime for a national court to substitute its own assessment of those matters; that, had a proportionality test been applied by the Divisional Court, it would have made no difference to the outcome; and that, in any event, even if the Foreign Secretary’s decision in 2005 to lift the hold had been flawed, it would not in the light of subsequent events be appropriate to grant the claimant any remedy.” The decision of the Court of Appeals was affirmed. [Regina (Youssef) v.  Secretary of State for Foreign and Commonwealth Affairs, [2016] 2 WLR 509 : (2016) UKSC 3, decided on January 27, 2016]

 

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