Hay v HM Treasury [2009] EWHC 1677 (Admin)

[2009] EWHC 1677 (Admin)Case No CO/1200/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/07/2009
Before
THE HONOURABLE MR JUSTICE OWEN
Between
HAYClaimantHM TREASURYDefendantSECRETARY OF STATE FORInterested PartyFOREIGN AND COMMONWEALTH AFFAIRSInterested Party
Raza Husain, Dan Squires (instructed by Birnberg Peirce Solicitors) for ClaimantJonathan Swift, Sir Michael Wood, Andrew O’Connor (instructed by Treasury Solicitors) for Defendant and Interested PartyHearing Hearing date: 1 st July 2009
Judgment
[1]The claimant is the subject of a freezing order over his assets by virtue of the Al Qaida and Taliban (United Nations Measures) Order 2006 (2006 NO 2952) (The ‘AQO’). His designation as a person subject to the AQO was the automatic consequence of his addition to the Consolidated List of Usama Bin Laden, Al Qaida and the Taliban, and other persons and organisations associated with them, maintained by the committee of the Security Council of the United Nations set up pursuant to UN Security Council Resolution 1267 (1999) (the ‘1267 Committee’).[2]By his application for permission to apply for judicial review dated 9 February 2009 the claimant sought a ‘merits based review’ of the basis for his designation by the 1267 Committee, and in the alternative if such a review was not possible, a declaration that his continuing designation is unlawful.[3]At an oral hearing on 2 April 2009, Collins J gave the claimant permission to apply for judicial review, and directed, inter-alia, that he lodge and serve an amended claim form. As a result of developments shortly before trial, the claimant filed an amended Statement of Grounds by which he indicated that he no longer pursued his claim to a merits based review of his designation. He now seeks an order quashing the AQO “… at least as applied in his case.”[4]The claimant’s case in essence is that the AQO has resulted in a fundamental and unjustified interference with his property and privacy rights, that it is enacted in such a way that he is deprived of the right effectively to challenge such interference in the courts, and is accordingly ultra vires section 1 of the United Nations Act 1946.[5]Background Facts 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.[6]The claimant has been subject to the AQO (and its predecessor) since 6 October 2005 when he was notified of his designation by the 1267 Committee by the interested party, the Foreign and Commonwealth Office (FCO). The effect of the designation is draconian. His bank accounts and credit cards are frozen. He is prohibited from receiving any money from any source. It is a criminal offence for any third party to provide him with any funds or economic sources without the permission of the 1267 Committee and/or HM Treasury (HMT). He receives subsistence, food, accommodation and clothing from his wife, who is in receipt of welfare benefits. She is subject to the provisions of a Financial Sanctions Basic Expenses Licence granted by HMT, under which she is required to account for all expenditure, with receipts, on a monthly basis. Failure to report or any other breach of the terms of the licence is a criminal offence.[7]The letter from the FCO dated 6 October 2005, by which the claimant was notified of his designation by the 1267 Committee, attached a copy of the Committee’s guidelines (see paragraph 16 below), and directed his attention in particular to the procedure for petitioning the government of residence and/or citizenship to request a review of his case. On 15 December 2005 Birnberg Pierce & Partners, solicitors for the claimant, wrote to HMT requesting the UK Government to approach the 1267 Committee seeking disclosure of the identity of the state that had sought the claimant’s listing, and of the information relied upon by the committee leading to his designation. On 24 January 2006 the UK’s Deputy Permanent Representative to the UN wrote to the Chairman of the 1267 Committee informing him of the request that had been made by the claimant’s solicitors. In his witness statement dated 19 June 2009 and filed in support of HMT’s case, Gareth Roberts, Head of the Sanctions Team in the FCO, gives an account of the repeated steps taken on behalf of Her Majesty’s Government between January 2006 and August 2008, both to raise the issue with the 1267 Committee, and bilaterally with the designating state. On 7 December 2007 the 1267 Committee informed the United Kingdom Permanent Representative to the United Nations that the requested information was confidential, and that the committee was not in a position to permit its release without the express authority of the designating state. But by letter dated 28 September 2008 the FCO notified the claimant’s solicitors that it had received permission to release information provided to the 1267 Committee, namely an Interpol Red Notice. Permission was not given for release of the identity of the designating state. The letter also made it clear that the information that the FCO was now permitted to disclose was not the totality of the information before the committee in relation to the claimant’s designation.[8]In response to the letter before action dated 11 November 2008, the Treasury Solicitor wrote to the claimant’s solicitors on 25 November:(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.[9]On 4 February 2009, and on 23 and 25 March, following the issue of these proceedings on 9 February, the issue of the claimant’s designation was again raised bilaterally with the designating state.[10]The current position is set out at paragraph 36 of Mr Roberts’ witness statement:
“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 withthe 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.”
[11]HMT’s current position is amplified in the skeleton argument submitted on behalf of both HMT and FCO:
“The decision taken rests on the conclusion that on the basis of the information available to him, the Secretary of State does notconsider 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.”
[12]As the 1267 Committee is making arrangements for a review of all existing AQ designations by 2010, and as FCO has indicated that it will seek to accelerate a review in the claimant’s case (see paragraph 8 above), I have considered whether the appropriate course would be to adjourn this application until the 1267 Committee makes its decision. But I have decided against that course as it appears to me to be important that the issue to which it gives rise should be resolved.[13]The Legal Context 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 [2008] 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, [2008] EWHC 869 (Admin).[14]In summary, pursuant to successive resolutions of the United Nations Security Council, each made under chapter VII of the Charter of the United Nations commencing with resolution 1267 (1999), and presently consolidated in resolution 1822 (2008)), the Security Council requires member states to impose economic measures against Usama Bin Laden, Al Qaida, the Taliban and persons/organisations associated with them. The decisions contained in such resolutions are binding on member states as a matter of international law[15]The 1267 Committee is responsible for identifying those persons/organisations to be made the subject of economic measures. They are listed in the Consolidated List maintained by the committee. The economic measures to be imposed on those identified on the Consolidated List comprise(a) the freeze on the assets of all designated persons, and(b) a prohibition on making available to any designated person any other asset, funds, financial asset or economic resource.[16]The proceedings of the 1267 Committee are conducted in accordance with guidelines adopted by it. As at the time of the decision to add the claimant’s name to the Consolidated List, the guidelines in place were those adopted on 10 April 2003 (C/9/49-55). The guidelines that are presently applicable were adopted on 9 December 2008 (C/9/33-48). The usual practice of the 1267 Committee is to meet in ‘closed session’. The committee determines what information about its proceedings (including the information being considered by it) should be made public or otherwise disclosed.[17]The AQO is an Order in Council made under powers conferred by section 1 of the United Nations Act 1946, which is in the following terms: (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.”[18]Article 3 of the AQO provides:
“(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).” (a) Usama Bin Laden (b) Any persons designated by the Sanctions Committee, and (c) Any person identified in a direction, is a designated person 19. 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.” (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.[19]Article 5(4) provided that the High Court may set aside a direction made by HMT under Article 4(1) on the application of the person identified in the direction or any other person affected by it. It was repealed by the Counter-Terrorism Act 2008; and the power to “set aside” a direction made by HMT under Article 4(1) is now contained in section 63(2) of the 2008 Act which operates in the same way as did Article 5(4) for purposes relevant to this case. It does not apply to the claimant as he is a designated person under 3(1)(b), not a person the subject of a direction by HMT under Article 4(1).[20]Article 7 provides that a person (including the designated person) must not deal with funds or economic resources belonging to, owned or held by,inter alia, a designated person, and Article 8 prohibits the making of funds or economic resources available to designated persons. Article 11 enables HMT to grant licences giving an exemption from the prohibitions contained in Articles 7 and 8. The power to grant licences under Article 11 is exercised in order to give effect to the provisions of Security Council resolution 1452 (2002), which permits exceptions to the economic measures required by the Security Council to the extent permitted by the 1267 Committee as necessary to meet ‘basic expenses’ or ‘extraordinary expenses’.[21]Under paragraph 7 of the current Guidelines of the Committee for the Conduct of its Work, a listed person may petition the 1267 Committee to be de-listed. The petition can be presented either through the person’s state of residence, or by the ‘Focal Point’ process. If the latter process is adopted, the relevant governments, including the designating state and the states of nationality or residence, will be notified of the petition, and asked to comment. The states of nationality or residence are encouraged to consult the designating state before recommending de-listing. If after such consultation, any of the states recommend de-listing, it will forward its recommendation to the committee; and the request will be placed on the committee’s agenda. If any of the states consulted oppose the request, the Focal Point will inform the committee of such opposition. Similar provisions apply in cases in which the listed person presents his petition through his state of residence.[22]The decision in A, K, M, Q and G 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 Gunder 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.[23]At first instance Collins J quashed both the TO and the AQO on the ground that they were ultra vires and unlawful. The central issue on appeal by HMT was whether he was correct so to hold. Sir Anthony Clarke MR addressed the legality of the AQO and the nature and scope of the challenge that could be mounted against it, at paragraphs 107 – 121 of his judgment. His conclusions are to be found at paragraphs 119-121. “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.”[24]Sedley LJ agreed, albeit that his judgment was couched in more guarded terms. At paragraphs 146 – 150 he said:
“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.”
[25]Finally Wilson LJ agreed with the judgment of the Master of the Rolls, concluding his judgment in the following terms:
“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 [113] to [120] 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 [146] 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 [149] 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.”[26]Both the claimant and HMT seek to rely upon the judgments in A, K, M, Qand G. Mr Husain submits that this case is precisely the type of case left open by the Court of Appeal. In the case of G the Master of the Rolls was satisfied that a full merits review of the facts that led to G’s designation by the 1267 committee was possible, because “… HMT … must know eitherall or most of the facts which led to G’s designation by the committee”. But he acknowledged at paragraph 120 that “there may be greater difficulties in the 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.” Sedley LJ, although not sanguine about the viability of a merits review in the face of security-sensitive material, did not dissent from the holding of the Master of the Rolls that such a review was in principle available under the AQO, but added at paragraph 148 that that might prove over optimistic and that if it turned out, either generally or in a specific case, that judicial review was unable for legal or practical reasons to afford an effective challenge to listing, he could see no reason why the present claim, i.e. the challenge to the vires of the AQO, should not be renewed, as the premise upon which the Court of Appeal proceeded would have proved false.[27]Mr Husain argues that in contrast to G’s case, the UK is not the designating state; and whilst FCO has carried out a review of the basis for the claimant’s designation, arriving at a favourable conclusion, it is not privy to the entirety of the material put before the 1267 Committee by the designating state. He submits that in consequence the claimant cannot discover the full basis of the case against him, is therefore not in a position to meet it; and furthermore that the court could not carry out an effective merits based review of the type envisaged by the Master of the Rolls.[28]He further argues that whilst the UK Government is prepared to support the claimant’s petition to the 1267 Committee for delisting, there is no means of knowing whether the petition will be successful. That is to be contrasted with the situation in Gwhere the court could reasonably assume that if on a review of the case, the UK, as the designating state, came to the conclusion that the criteria for listing were no longer established, and either itself sought or supported a petition for delisting, delisting would be the probable outcome.[29]Mr Swift’s response is that the claimant’s case does not fall into the category of case left open by the Master of the Rolls and Sedley LJ, and falls squarely within what was described by Wilson LJ as a ‘sufficient creative solution’ to the particular problem raised in the case of G. He submits that the review undertaken by FCO demonstrates that a merits based review would have been possible, arguing that the present position is as if the review envisaged by the Court of Appeal had been undertaken. Secondly he argues that had such a review been carried out by the Court, if necessary with the adoption of the special procedures such as the use of a special advocate, the only relief that the claimant could have sought, would have been an order either that the UK petition the 1267 Committee for him to be de-listed, or that it support his application to the 1267 Committee for de-listing, and that in the light of the decision by the UK to support his application for de-listing, a claim to such relief has now become otiose.[30]But the difficulty with that argument is that, unlike the case of G, the UK is not the nominating state, and FCO have expressly stated that it is not privy to the whole of the information put before the 1267 Committee by the nominating state. The attempts by the FCO to obtain disclosure of such information, both from the 1267 Committee itself and in the course of bilateral discussions with the nominating state, have failed. In A, K, M, Q and G the Master of the Rolls was satisfied that there was a remedy available to G because HMT:
“… 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.[31]In G the court could be reasonably confident that if, following a merits based review, it were to be held that G should not have been listed, an order either to apply to the 1267 Committee for a de-listing, or to support an application by G for such a de-listing, would have been likely to result in de-listing. But that is not an assumption that can be made in this case. Although FCO now considers that on the information that it has, the criteria for listing are not made out, the possibility that 1267 Committee may decide otherwise cannot be excluded. As was acknowledged on behalf of FCO, the conclusion reached by it on its review, is not determinative of the decision that will be taken by the 1267 Committee.[32]In those circumstances, and to adopt the phraseology of Sedley LJ at paragraph 147 of his judgment, no effective form of judicial review is available to challenge the listing. I therefore conclude that this case does fall into the category of case that it was foreseen by the Court of Appeal could fall out with the solution that it adopted in A, K, M, Q and G.[33]In the light of the Master of the Rolls’ observation at paragraph 120, that he “…would leave the possible problems in such a case to be solved when they arise”, it is then necessary to consider whether there is a solution to the problem presented by this case that would enable the claimant to mount an effective challenge to his listing. Given that the problem arises from the fact that the full facts upon which the designation is made are not known to FCO, it is difficult to see how it could be solved without their disclosure. No other solution to the problem was suggested by the parties.[34]I must therefore conclude that on the facts of this case “… the court is powerless to achieve a solution whereby a person in the position of (the claimant) can challenge the underlying basis of the case against him.” (per the MR paragraph 113). To adopt Sedley LJ’s phraseology … “judicial review is unable for legal or practical reasons to afford an effective challenge to listing”.[35]What flows from that conclusion? That question is not directly answered in A, K, M, Q and G. Mr Husain sought to argue that it is apparent from the decision that if a merits based review is not possible, then it follows that the AQO order is ultra vires. That is to overstate the effect of the judgments. The highest that it can be put is that at paragraph 113 the Master of the Rolls said that if a person in the position of G could not challenge the underlying basis of the case against him “… I would be inclined to hold that the AQO was unlawful.” At paragraph 158 Sedley LJ said that if judicial review is unable for legal or practical reasons to afford an effective challenge to listing then “in that event it is the vires of this part of this Order which will be in issue.” In my judgment the critical question of whether, absent effective relief by way of judicial review, the AQO is ultra vires section 1 of the United Nations Act 1946 (see paragraph 17 above) remains open.[36]Mr Husain took as his starting point to his challenge to the vires of the AQO the proposition that English law and English courts are concerned with remedies, rather than the articulation of abstract rights. He invited my attention to a passage from Dicey “Introduction to the Study of theLaw of the Constitution (Liberty: 8th edition) at p. 118. “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 indefining 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.”[37]Thus he argues that an effective challenge to designation must be one that carries with it an effective remedy. To be meaningful, the right of access to the court is the right to obtain a remedy from the court that can, in Dicey’s words, “avert definite wrongs”.[38]The next step in his argument is the well established principle articulated by Lord Browne-Wilkinson in R v Secretary of State ex p Pierson [1998] AC 539 at 573G:
“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.”
[39]In this context the Master of the Rolls cited the following passage from the speech of Lord Hoffman in R v Home Secretary ex p Simms [2000] 2AC115 at 131E at paragraph 44 of his judgment in A, K, M, Q and G,:
“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.”
[40]Thus far the argument is not contentious. The next step is that section 1 of the United Nations Act 1946 neither expressly, nor by necessary implication, empowers the Executive to remove the right of access to the courts. In my judgment that is plainly the case. Mr Swift did not seek to argue to the contrary.[41]The final question is therefore whether the AQO has that effect. Mr Husain argues that it does. He submits that the AQO is enacted in such a way that even if the claimant should not be on the Consolidated List, there is no UK public authority which has the power of preventing him being a designated person under the order, and that in consequence he is deprived of the right effectively to challenge the fundamental interference with his basic rights, the result of the economic measures imposed by the Security Council.[42]Mr Swift argues that the claimant has not been denied access to the court. He submits that the claimant can challenge the AQO in a number of ways. First he argues that in A, K, Q, M and G the Court of Appeal concluded that the provisions of the AQO did not prevent judicial review of the basis of a decision to nominate a person for inclusion in the Consolidated List, nor of a decision to decline to support an application to the 1267 Committee to remove a person’s name from the list. Based on the conclusion that such claims could be made and considered by the court, the Court of Appeal concluded that the AQO did not preclude any right of access to the court. But this is a repeat of the argument that A, K, Q, M and G is determinative of the claim, an argument that I have rejected.[43]Secondly he submits that if the claimant seeks to contend that the 2006 Order is unlawful because it does not provide that a person in respect of whom an application is being made to the 1267 Committee to remove his name from the Consolidated List should cease to be a ‘designated’ person within the meaning of Article 3 of the AQO pending determination of that application by the 1267 committee, there is nothing in the AQO that prevents such a claim being made to or considered by the court. Similarly if the claimant goes further and wishes to contend that the AQO is unlawful because Article 3 1(b) provides that a person who is identified on the Consolidated List by the 1267 Committee is a ‘designated person’, regardless of whether or not the Secretary of State considers, based on the information available to him, that the person concerned meets the criteria for inclusion on the Consolidated List, there is nothing in the 2006 Order that prevents that claim being made to and considered by the court. I accept that the claimant could advance such claims; but in either case the claim would ultimately involve resolution of the question of the vires of the AQO, which would turn on the availability of an effective remedy, the issue to which this application gives rise. Accordingly the point does not advance the argument.[44]Finally Mr Swift submits that if the claimant wishes to contend that the application to him of the AQO is unlawful because it interferes with his rights under ECHR Article 8 or Article 1 of protocol 1, the existence of such a claim is not precluded by AQO. Such a claim would inevitably fail in the light of the decision of the light of the House of Lords in R (Al Jeddah) v Defence Secretary [2008] UKHL 58 [2008] AC 332, which held that the obligation under Article 25 of the UN Charter for member states to carry out Security Council resolutions was by Article 103 of the Charter, to prevail over any international agreement, including the ECHR. But in any event the claimant does not seek to advance such a claim, and the point is irrelevant.[45]In my judgment Mr Husain’s submissions are well founded. The reality of the claimant’s position is that as neither he nor FCO know the full basis of his designation by the 1267 Committee, there cannot be an effective merits review of his designation by the court. As Sedley LJ observed at paragraph 131 of A,K, M, Q and G “the Courts must be vigilant to ensure that the way in which the order operates does not turn their supervisory role into tokenism.” In my judgment the practical effect of the AQO is to preclude access to the court for protection against what the claimant contends to be wrongful interference with his basic rights. To hold otherwise would be tokenism.[46]I am therefore bound to conclude that in its application to the claimant, the AQO is ultra vires the 1946 Act. As Collins J observed in A, K, M, Q and G, that is not to say that freezing orders cannot be made to comply with the relevant UN resolutions in such a case. But that would require enabling legislation by Parliament.[47]The AQO must therefore be quashed insofar as it applies to the claimant. I will hear submissions from counsel as to the appropriate order.

Cited in 2 later judgments