European Union – Legal Certainty – Orders in Council – UN resolutions - Vires

(1) A (2) K (3) M (4) Q (5) G v HM Treasury: CA (Civ Div) (Sir Anthony Clarke, Master of the Rolls, Lords Justice Sedley, Wilson): 30 October 2008.

The appellant Treasury appealed against orders made on the application of the respondents (A, K, M, Q and G) ([2008] EWHC 869 (Admin), [2008] 3 All ER) quashing the Al-Qaida and Taliban (UN Measures) Order 2006 and the Terrorism (UN Measures) Order 2006.

The orders had been made under powers conferred by the United Nations Act 1946 in order to implement Security Council Resolution 1373. The Treasury had directed that the respondents be designated under the Terrorism Order as persons whom the Treasury had reasonable grounds to believe had, or might have, committed, attempted to commit, participated in or facilitated the commission of acts of terrorism and had been subjected to orders freezing their assets. G had also been designated under the Al-Qaida and Taliban Order because he was on the UN Sanctions Committee list.

The judge quashed the orders on the ground that they were ultra vires and unlawful. The issues were: (i) whether the Terrorism Order was unlawful and should be quashed; (ii) the effect of the lack of procedural safeguards in the Terrorism Order; (iii) whether the criminal offences in the Terrorism Order of dealing with funds or economic resources of a designated person under article 7, and making funds or economic resources available to a designated person under article 8, satisfied principles of legal certainty and proportionality; (iv) whether the Al-Qaida and Taliban Order was unlawful because the effect of the Order was that a person on the UN Sanctions Committee list had no way to challenge his designation under the order.

The respondents argued that: (1) the Crown had exceeded the power conferred by the act and by Resolution 1373 in relation to the implementation of the Terrorism Order, because the obligations in that resolution were limited to persons who had committed, participated in or facilitated offences and did not apply to anyone who was reasonably suspected of being, or who might have been, such a person; (2) the safeguards in article 5(4) of the Terrorism Order were insufficient to ensure a fair trial, in particular because section 17 of the Regulation of Investigatory Powers Act 2000 prevented anyone from saying whether there was relevant intercept evidence obtained that might be inculpatory or exculpatory.

Held: (Sedley LJ dissenting in respect of the Terrorism Order) (1) The 1946 act had given the Crown a wide discretion to decide what particular provisions fell within the permitted scope of the power to make orders to implement Security Council directives. Resolution 1373 was silent on the standard of proof to be satisfied on the question of whether a particular person committed, participated in or facilitated terrorist acts. A state could properly conclude that it was expedient to provide that reasonable grounds for suspicion was an appropriate test, provided that the person concerned had a proper opportunity to challenge that decision, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, (2007) QB 415 considered. Adding ‘reasonable grounds for suspicion’ did not go further than Resolution 1373 required, but the words ‘or may be’ did, and in that respect the Terrorism Order was ultra vires. It was unnecessary to quash the order because the words ‘or may be’ were severable within the test laid down in DPP v Hutchinson [1990] 2 AC 783 HL applied. However, the directions made by the Treasury in respect of A, K, M, Q and G had expressly referred to those words, and so the directions were quashed.

(2) The courts had to be relied upon to ensure that there were sufficient procedural safeguards to protect applicants under article 5(4) of the Terrorism Order, and if that proved impossible in a particular case the direction had to be set aside. The approach should be similar to that in control order cases, Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440 considered. The fact that there was no statutory power to appoint a special advocate in proceedings under the Terrorism Order did not prevent the court from making such an appointment, R (on the application of Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 and R (on the application of Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403 considered. If there was closed material in addition to inculpatory material on which the Treasury could not rely because of section 17 of the 2000 act, then the appointment of a special advocate might be able to protect the individual’s interests. Where there was exculpatory material, there had to be a procedure that allowed the evidence to be made available to the judge, or the allegation had to be abandoned.

(3) Having regard to the language of articles 7 and 8, the relevant circumstances, the provision of a licensing system and the available defences, the principles of certainty and proportionality were satisfied.

(4) The Al-Qaida and Taliban Order was lawful. The court had power to consider an application for judicial review by a person to whom the order applied as a result of designation by the UN Sanctions Committee and, on such an application, to ask the court to consider what the basis of his listing was. Accordingly, G was entitled to a merits-based review.

Appeal allowed in part.

Rabinder Singh QC, Richard Hermer (instructed by Tuckers) for G; Tim Owen QC, Dan Squires (instructed by Birnberg Peirce) for A, K and M, and (instructed by Public Law) for Q; Jonathan Swift, Michael Wood, Andrew O'Connor (instructed by the Treasury Solicitor) for the appellant.