Khaled & Anor, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWHC 1868 (Admin)

[2010] EWHC 1868 (Admin)Case No CO/11327/2008Case No CO/4684/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 July 2010
Before
Mr Justice Keith
Between
R (on the application of (1) Abdulbaqi Mohammed Khaled and (2) Elmabruk Maftah)ClaimantsThe Secretary of State for Foreign and Commonwealth AffairsDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Dan Squires (instructed by Public Law Solicitors) for ClaimantsMr Jonathan Swift QC (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 25 June 2010
Judgment

Introduction

[1]The claimants come from Libya. They live in the UK. They were both named on a list maintained by a committee of the Security Council of the United Nations of individuals and entities associated with Al-Qaida, Usama bin Laden and the Taliban. They both issued claims of judicial review of various decisions of the Secretary of State for Foreign and Commonwealth Affairs which resulted in the inclusion of their names on the list, and in their names remaining on the list despite a change of view on the part of the Secretary of State about the circumstances which had caused their names to be on the list in the first place. Permission to proceed with the claims challenging some, but not all, of those decisions was granted by Mitting J without a hearing. He refused permission to proceed with the claims challenging the rest of those decisions, and the claimants asked the court to reconsider Mitting J’s conclusions at a hearing. This is the court’s judgment following that hearing.[2]The second of the two claimants, Elmabruk Maftah, was granted anonymity when his claim was first considered by the court, and he was referred to as EM after that. However, following the judgment of the Supreme Court on the application made by Guardian News and Media Ltd in H M Treasury v Ahmed [2010] UKSC1, the order for anonymity was discharged. No application for anonymity was ever made by the other claimant, Abdulbaqi Mohammed Khaled.[3]This judgment also addresses another issue. Mitting J ordered a preliminary hearing “to determine whether Art. 6 [of the European Convention on Human Rights] applies to these proceedings”. The issue is whether the eventual hearing of the claimants’ claims will involve “the determination of [their] civil rights and obligations” within the meaning of Art. 6(1). Subject to one reservation, this is an important issue, because if it does and Art. 6 is thereby engaged, the claimants say that, following A v The United Kingdom (2009) 49 EHRR 29 and the House of Lords’ reading of it in Secretary of State for the Home Department v AF, AW and AE [2009] 3 WLR 74, Art. 6 requires them to be provided with the allegations originally made against them in sufficient detail to enable them to give instructions to their special advocates so that those allegations can be challenged effectively. The reservation is that even if Art. 6 is not engaged, procedural fairness may require the claimants to be provided with the same information as if Art. 6 had been engaged: see, for example, The Home Office v Tariq [2010] EWCA 462 (Civ) at [50].

The relevant background

[4]The Security Council of the United Nations has established a scheme of economic sanctions designed to remove or at least reduce the threat to international peace and security posed by Al-Qaida, Usama bin Laden and the Taliban. A committee comprising all the members of the Security Council – known as the Sanctions Committee or the 1267 Committee (because it was resolution 1267 (1999) of the Security Council which created the committee) – is required to identify those persons and entities who are associated with Al-Qaida, Usama bin Laden or the Taliban. The names of those persons and entities are contained in a list maintained by the Sanctions Committee known as the Consolidated List. As a matter of international law, all members states of the United Nations, including the UK, are required to apply the sanctions identified by the Security Council against each person and entity named on the Consolidated List.[5]Whether or not a person’s name is included on the Consolidated List is a decision for the Sanctions Committee following a request by the diplomatic authorities of a member state. Decisions of the Sanctions Committee are reached by consensus, i.e. unanimity is required. Whether or not a person’s name is removed from the Consolidated List is also for the Sanctions Committee to decide, though such a request may be made either by the individual himself or by the diplomatic authorities of the state of his nationality or residence. Such decisions are also reached by consensus. In the absence of consensus within the Sanctions Committee, the request is referred to the Security Council itself, which will decide on the request in accordance with its usual rules, i.e. nine affirming votes and no veto by any of the five permanent members of the Security Council.[6]On 18 January 2006, the Foreign and Commonwealth Office (“the FCO”) requested the inclusion of Mr Khaled’s name on the Consolidated List. The Sanctions Committee decided on 7 February 2006 to add his name to the Consolidated List, with the UK voting in favour of its inclusion on it. In Mr Maftah’s case, the date on which the FCO requested the inclusion of his name on the Consolidated List was 14 October 2008. The Sanctions Committee decided on 21 October 2008 to add his name to the Consolidated List, again with the UK voting in favour of his inclusion on it. The claimants say that the only information which the Sanctions Committee was provided with about the claimants was(a) that Mr Khaled was a member of the Libyan Islamic Fighting Group (“the LIFG”), whose leader in the UK had been convicted of an offence under the Terrorism Act 2000, and was a director of an international charity linked to the LIFG, and(b) that Mr Maftah was an associate, amongst others, of senior members of the LIFG in the UK and had been involved in fund-raising activities for it.[7]There were a number of consequences of the inclusion of the claimants’ names on the Consolidated List:(i) The British Government was required to take measures to freeze the claimants’ assets pursuant to various previous resolutions of the Security Council. One of the ways in which the British Government had sought to give effect to these resolutions was to make the Al-Qaida (United Nations Measures) Order 2006 (“the Al-Qaida Order”), an Order in Council made under section 1 of the United Nations Act 1946. Pursuant to the Al-Qaida Order, the claimants were subjected to a draconian financial sanctions regime which froze their assets and made it a criminal offence for anyone to provide them with money or resources of any value. From the date of the inclusion of their names on the Consolidated List, the claimants became subject to the restrictions contained in the Al-Qaida Order by virtue of Art. 3(1) of the Al-Qaida Order.(ii) When the Sanctions Committee decides to add someone’s name to the Consolidated List, the Commission of the European Union has to decide whether to add that person’s name to Annex 1 to Council Regulation (EC) No. 881/2002 (“the EC Regulation”). That is the effect of Art. 7a.1 of the EC Regulation. The Commission decided to add the names of the claimants to Annex 1. As a result of these decisions, the claimants became subject to the restrictions contained in Art. 2 of the EC Regulation. These restrictions were not dissimilar to those imposed under the Al-Qaida Order, but they did not include criminal sanctions for breach of the asset-freezing provisions.(iii) The inclusion of the names of the claimants on the Consolidated List meant that their names were added to a publicly accessible UN website. That resulted in the inclusion of their names on the Consolidated List being reported by a number of Arabic language websites and becoming known to members of their families, as well as the communities from which they came in Libya and elsewhere. The fact that they have been publicly named as associates of Al-Qaida is said to have had a detrimental effect on their reputations, and to have resulted in people treating them differently, and in some cases not wishing to have any contact with them at all.[8]In the interests of completeness, I should add two things. First, there was, in addition to the Al-Qaida Order, another domestic financial sanctions regime. That was the regime under the Terrorism (United Nations Measures) Order 2006 (“the Terrorism Order”). That imposed a similar financial sanctions regime to that applicable under the Al-Qaida Order, even though the persons to whom the regime applied were not among those whose names were included in the Consolidated List. Secondly, Art. 3(1)(b) of the Al-Qaida Order was quashed by the Supreme Court on 4 February 2010 in Ahmed v H M Treasury [2010] 2 WLR 378. Following that decision, the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 were made which provided enforcement provisions in aid of the financial sanctions contained in the EC Regulation.[9]On 4 November 2009, the FCO requested the Sanctions Committee to remove the names of the claimants from the Consolidated List. The FCO did so because by then it was thought that the LIFG was no longer (or perhaps had never been) associated with Al-Qaida or terrorism-related activities. That, at any rate, is what the FCO claims. The claimants’ case is that the FCO should instead have sought the removal of their names from the Consolidated List on the basis that they had never been involved in, or associated with people who had been involved in, terrorism or terrorism-related activities. Despite the FCO’s request for the claimants’ names to be removed from the Consolidated List, a consensus to do that has not yet been reached on the Sanctions Committee. The claimants’ names are therefore still on the Consolidated List, though it may be that diplomatic negotiations – described as “bilateral exchanges” in guidelines issued for the work of the Sanctions Committee – are taking place to resolve things.

The decisions challenged

[10]Each of the claimants challenge the same six decisions, though the dates of the decisions differ in each case. The first four decisions were all made at or about the time that the claimants’ names were originally added to the Consolidated List. They are the following decisions:(i) The decisions of the FCO to request the Sanctions Committee to include the names of the claimants on the Consolidated List, those requests having been made on 18 January 2006 in the case of Mr Khaled and on 14 October 2008 in the case of Mr Maftah.(ii) The decisions of the FCO to take that step rather than to designate them under the Terrorism Order. Those decisions would have been made at the same time as the decisions in (i). The reason why these decisions are challenged is that the impasse which has arisen as a result of the inability to reach a consensus within the Sanctions Committee over the removal of the claimants’ names from the Consolidated List would have been avoided if the claimants had been designated under a purely domestic sanctions regime.(iii) The failure of the FCO to provide the Sanctions Committee with all the relevant information about the claimants when the requests for the claimants’ names to be included on the Consolidated List were made. The argument here is that the very limited information given to the Sanctions Committee – in particular the absence of any information about the basis of the assertions that the claimants were associates of members of the LIFG – prevented the Sanctions Committee from making its independent assessment of whether the claimants’ names should be added to the Consolidated List.(iv) The decisions of the British Government to support the requests to the Sanctions Committee when the Sanctions Committee had to decide whether to give effect to those requests, 7 February 2006 in the case of Mr Khaled and 21 October 2008 in the case of Mr Maftah. The reason why these decisions are challenged is that if the British Government had not voted in favour of the claimants’ names being included in the Consolidated List (albeit a highly unlikely scenario since it was the FCO which had requested their inclusion in the first place), a consensus for their inclusion would not have been reached.[11]The last two decisions were those made in connection with the requests for the claimants’ names to be removed from the Consolidated List. They are the following decisions: (v) The failure of the FCO to request the Sanctions Committee to remove the claimants’ names from the Consolidated List prior to 4 November 2009. The argument here is that the FCO should not have waited until 4 November 2009 to make that request. It should have made that request very much earlier. (vi) The failure of the FCO to request the Sanctions Committee to remove the claimants’ names from the Consolidated List on the basis that they were not, and had never been, involved in terrorism or terrorism-related activities. The argument here is that the basis of the FCO’s request should not have been limited to an assertion that the LIFG was no longer associated with Al-Qaida or terrorism-related activities.[12]On 10 May 2010, Mitting J gave Mr Khaled permission to proceed with his claim for judicial review in respect of decisions (v) and (vi), though he limited the period in decision (v) to that between 28 August 2008 and 4 November 2009. On the same date, he refused to give Mr Khaled permission to proceed with his claim for judicial review in respect of decisions (i)-(iv) on the ground of delay. In relation to Mr Maftah, Mitting J gave him permission on 8 June 2009 to proceed with his claim for judicial review in respect of decisions (i), (ii) and (iii). On 14 May 2010, he also gave permission to Mr Maftah to proceed with his claim for judicial review in respect of decision (vi), but he refused to give Mr Maftah permission to proceed with his claim for judicial review in respect of decisions (iv) and (v), again on the grounds of delay, and purported to refuse to give Mr Maftah permission to proceed with his claim for judicial review in respect of decisions (i), (ii) and (iii), also on the grounds of delay, not appreciating that he had given permission in respect of those decisions previously.

The issue of delay

[13]Mr Khaled’s claims. Mr Khaled’s claim form was issued on 19 November 2008. The four decisions which Mr Khaled was refused permission to challenge were the ones made at the beginning of 2006. The delay in challenging those decisions was approaching three years. No explanation was given for that delay initially, because to begin with Mr Khaled (who then had different solicitors and counsel) was only challenging a decision of the FCO of 20 August 2008 not to support Mr Khaled’s request for his name to be removed from the Consolidated List. Nor were decisions (i)-(iv) challenged when Mr Khaled’s claim form was amended on 13 July 2009 to challenge a decision of the Treasury of 8 February 2006 to issue a notice to all financial institutions to freeze Mr Khaled’s assets. Permission to challenge that decision was subsequently refused, and no attempt was made to resurrect it. Decisions (i)-(iv) were only challenged when Mr Khaled instructed his present solicitors (who instructed new counsel), and a draft of a proposed further amendment to the claim form challenging decisions (i)-(vi) for the first time was filed on 10 March 2010. Mr Khaled says, not surprisingly, that he left it to his previous solicitors to advise him what decisions he should be challenging. He did not understand in any detail the options open to him or the legal issues involved, and he went along with whatever their advice was believing that they would know best. It was not his fault that when they amended his claim form in July 2009, they did not then seek to challenge any of the decisions which his new legal team advised him to challenge.[14]There is one other important point which needs to be made here. Mr Khaled claimed when his claim form was amended on 13 July 2009 as well as in a recent witness statement that he had always believed that it had been the US Government who had requested the inclusion of his name on the Consolidated List. He says that it had never occurred to him that it might have been the British Government who had been behind it. He only discovered that it had been the FCO who had requested that his name be included on the Consolidated List when he read the Secretary of State’s summary grounds of resistance dated 12 February 2009 to his claim as originally formulated. Mr Dan Squires for Mr Khaled acknowledges that this cannot explain the delay in challenging decision (iv), because Mr Khaled would – or at least should – have realised that the British Government must have voted in favour of the inclusion of his name on the Consolidated List because of the requirement for unanimity. It is also acknowledged that although this explains the delay in challenging decisions (i)-(iii) prior to 12 February 2009, it does not explain the delay in challenging them for the first time on 10 March 2010. At one stage, it was being said that Mr Khaled’s claims had been stayed by Silber J on 2 November 2009, but that was not correct. Silber J had simply adjourned the preliminary hearing which Mitting J had ordered on the applicability of Art. 6 until after the Supreme Court had handed down judgment in Ahmed.[15]The Secretary of State opposes the extension of Mr Khaled’s time for challenging decisions (i)-(iv), on the basis that Mr Khaled’s best chance of achieving what he seeks, namely the removal of his name from the Consolidated List, is by challenging the decisions which he has been given permission to challenge, namely decisions (v) and (vi), and a successful challenge to decisions (i)-(iv) would not increase that chance. I do not agree. It may well be that Mr Khaled cannot mount a direct challenge to the original decision of the Sanctions Committee to include his name on the Consolidated List, or to its subsequent decision not to remove his name from the Consolidated List. But his position with those member states who are at present unwilling to agree to the removal of his name from the Consolidated List might well be improved if he successfully challenges the original decisions as well as the recent ones. They may be more likely to agree to the removal of his name from the Consolidated List if they know that a British court has ruled that the FCO acted unlawfully in requesting his name to be included on the Consolidated List in the first place. It is not necessarily the case that a successful challenge to decisions (v) and (vi) would be enough to persuade them to take a different course. Similarly, there has been no challenge to the decision of the Commission of the European Union to add Mr Khaled’s name to Annex 1 to the EC Regulation. Such a challenge could only be mounted in the Court of Justice of the European Union, bearing in mind that it is a decision of the Commission which would be challenged. But Mr Khaled’s position on such a challenge might well be improved if he successfully challenges the original decisions as well as the recent ones.[16]I see, of course, how Mr Khaled’s challenge to decision (vi) would result in the court having to determine whether Mr Khaled could reasonably have been suspected in 2006 of having been involved in terrorism or terrorism-related activities, but that cuts both ways. On the one hand, it makes the challenges to decisions (i)-(iv) less necessary, but it also means that the evaluation of the intelligence which has to be done for the challenges to the earlier decisions will have already been done for the challenge to decision (vi). In the final analysis, the importance of the issues which are raised on decisions (i)-(iv), the impact which decisions (i)-(iv) had on Mr Khaled, and the relatively modest amount of additional work which the Secretary of State has to do on decisions (i)-(iv) bearing in mind the work which will have to be done in respect of decision (vi) anyway, justify the grant of an extension of time, especially when coupled with Mr Khaled’s explanations for his inactivity.[17]Two things follow from that. Since Mitting J refused Mr Khaled permission to amend his claim form to challenge decisions (i)-(iv), I now give Mr Khaled permission to amend his claim form in the form of the draft filed on 10 March 2010. And since Mitting J refused Mr Khaled permission to proceed with his claim for judicial review to challenge decisions (i)-(iv) on the ground of delay only, and not on the merits, permission to proceed with the claim for judicial review to challenge those decisions must be granted.[18]That leaves the period in decision (v) which Mitting J limited to that between 28 August 2008 and 4 November 2009. I proceed on the assumption that Mitting J intended the first date to be 20 August 2008, not 28 August 2008, because it was on 20 August 2008 that the FCO decided not to support Mr Khaled’s request for his name to be removed from the Consolidated List. For my part, I do not see what that has to do with whether the FCO, in the light of such information as it may have had about Mr Khaled, should itself and on its own initiative have sought the removal of his name from the Consolidated List before then. In the circumstances, I vary the permission which Mitting J gave to Mr Khaled to proceed with his challenge to decision (v), and I permit him to proceed with his challenge to the failure of the FCO to request the Sanctions Committee to remove his name from the Consolidated List at any time prior to 4 November 2009.[19]Mr Maftah’s claims. Mr Maftah’s claim form was issued on 15 May 2009. At that time, the only decisions which were being challenged were decisions (i)-(iii), and as I have said, Mitting J permitted Mr Maftah to proceed with his claim for judicial review in respect of all three decisions. Decisions (iv)-(vi) were challenged for the first time in the draft of a proposed amendment to the claim form filed on 10 March 2010.[20]At first blush, it is not easy to understand why permission to proceed with the challenge to decision (iv) was refused, bearing in mind that it was one of the decisions made at or about the time that Mr Maftah’s name was added to the Consolidated List, and the challenge to the other three decisions made about that time were permitted to proceed. But I suspect that it was because Mitting J had overlooked that permission to proceed with the challenges to those three decisions had been granted. Had Mitting J realised that decision (iv) had been made at or about the same time as the decisions which he had already permitted Mr Maftah to challenge, he would have realised that the challenge to decision (iv), although made late, was all part of the same decision-making process. I doubt whether in those circumstances Mitting J would have refused permission on the ground of delay. After all, I do not suppose that a challenge to decision (iv) would involve any additional evidence from the Secretary of State, since the justification for decision (iv) will presumably be the same as the justification for decision (v) taken only a week earlier. The reasons I gave for extending Mr Khaled’s time to proceed with his challenge to decisions (i)-(iv), notwithstanding the objections from the Secretary of State about the claimants’ need to challenge decisions (i)-(iv), apply to decision (iv) in Mr Maftah’s case.[21]Nor is it entirely easy to understand why permission to proceed with the challenge to decision (v) was refused, bearing in mind that at the same time Mitting J permitted(a) Mr Khaled to challenge the equivalent decision (v) in his case, and(b) Mr Maftah to challenge decision (vi), a decision made at the same time as the last date on which the refusal to which decision (v) related continued. Mr Jonathan Swift QC for the Secretary of State argued that Mitting J’s refusal to permit the challenge to decision (v) to proceed could be justified on the basis that the challenge to decision (vi) will give Mr Maftah everything he needs. I rather doubt that, but even if that was the case, it would not in the circumstances have been a sufficient reason for distinguishing Mr Maftah’s case from Mr Khaled’s. In the circumstances, I have decided to extend Mr Maftah’s time for challenging decisions (iv) and (v). I give Mr Maftah permission to amend his claim form in the form of the draft filed on 10 March 2010, and I give him permission to proceed with his claim for judicial review to challenge decisions (iv) and (v).

The applicability of Art. 6

[22]Art. 6(1) of the Convention provides, so far as is material:
“In the determination of his civil rights … , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The question for the court is whether the claimants’ claims for judicial review involve the determination of their civil rights.[23]It is, I think, unhelpful to look at other proceedings to which Art. 6 has been held to apply or not to apply, and argue from them that the claimants’ claims for judicial review involved or did not involve the determination of their civil rights. For example, Art. 6 has been held to apply to appeals heard by the Special Immigration Appeals Commission (“SIAC”) against someone’s certification as a suspected terrorist under section 21(1) of the Anti-terrorism, Crime and Security Act 2001 (see A v The Secretary of State for the Home Department (No. 2) [2005] 1 WLR 414) and to challenges to control orders (see Collins J in R (on the application of the Secretary of State for the Home Department) v BC and BB [2009] EWHC 2927 (Admin) at [28]), whereas Art. 6 has been held not to apply to appeals heard by SIAC against decisions to deprive someone of their British citizenship under section 40(2) of the British Nationality Act 1981 (see Mitting J in Al-Jedda v The Secretary of State for the Home Department (SC/66/2008)). Those decisions were made in the context of specific statutory regimes, and they are not necessarily analogous to the claimants’ cases. The question whether the claimants’ claims for judicial review involve the determination of their civil rights has to be addressed in the context of the nature of the civil rights which are alleged to be in play and whether the present proceedings involve the determination of them.[24]There is no doubt that the claimants’ civil rights have been affected by the decisions which the claimants’ challenge. The freezing of their assets affects their right to the free enjoyment of their property, and the publicity given to the inclusion of their names on the Consolidated List affects their reputation. Their right to the free enjoyment of their property is unquestionably a civil right, and their right to enjoy a good reputation, and to have determined before a tribunal the justification for any attacks on that reputation, were held by the European Court in Werner v Poland (2003) 36 EHRR 28 at [33] to be civil rights within the meaning of Art. 6(1).[25]The claimants also contend that their rights under the Convention were affected. The freezing of their assets has interfered with their entitlement under Art. 1 of the First Protocol to the peaceful enjoyment of their possessions. In addition the claimants point to one of the effects of the FCO’s decision to request the Sanctions Committee to include their names on the Consolidated List, rather than to designate them under the Terrorism Order. The latter would not automatically have had the effect of their alleged association with Al-Qaida, Usama bin Laden or the Taliban being publicised. The publicity which has resulted has interfered with their right to respect for their private life under Art. 8. The question is whether both Convention rights are civil rights within the meaning of Art. 6(1). The claimants say they are, relying on what Lord Nicholls said in Re S (Minors) (Care[26]The crucial question, then, is whether the claimants’ claims for judicial review involve the determination of those rights. The Secretary of State’s case is beguilingly simple. For a claim to involve the determination of someone’s civil rights, there has to be a dispute in respect of those rights which can be said, at least on arguable grounds, to be recognised in the domestic law of the state in which those rights are being determined. Moreover, the proceedings in which the dispute is to be adjudicated must be “directly decisive” of those rights which are said to be engaged. That has been the line taken by the European Court ever since its decision in Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1.[27]In the light of that, two discrete points are taken. First, the dispute between the claimants and the Secretary of State is not one which relates to rights which are recognised as civil rights under the domestic law of the UK. Take decision (i) as an example. The issue there is whether the FCO acted lawfully when exercising its powers in a sensitive area of foreign policy in requesting the Sanctions Committee to include the names of the claimants on the Consolidated List. Admittedly, the result of the FCO taking that action was the Sanctions Committee’s decisions to add the names of the claimants to the Consolidated List. Admittedly, the consequences of their names being added to the Consolidated List included (a) the public’s awareness of their alleged association with Al-Qaida, Usama bin Laden and the Taliban, and (b) being subjected to the restrictions contained in the Al-Qaida Order, which included the freezing of their assets, both of which meant that their rights were undoubtedly affected by decision (i). But the dispute to which the challenge to decision (i) relates is nevertheless the legality of the FCO’s action in the first place, on a topic which related to what the European Court described in an analogous context as “the exercise of public-authority prerogatives” which did not relate to anyone’s civil rights. In other words, the dispute about the legality of the FCO’s action is not a dispute over the claimants’ rights to enjoy a good reputation or to the free enjoyment of their possessions. Although the claimants’ rights were affected by the FCO’s action, it is still a dispute about whether it was lawful for the FCO to request the Sanctions Committee to add the claimants’ names to the Consolidated List. It is said that all of the decisions which the claimants’ claims for judicial review challenge can be analysed in the same way.[28]Secondly, even if the dispute between the claimants and the Secretary of State is a dispute over the claimants’ rights which were affected by the FCO’s actions, the proceedings in which that dispute is to be adjudicated will not be directly decisive of those rights. Again, take decision (i). A declaration, for example, that it was unlawful for the Secretary of State to request that the claimants’ names be added to the Consolidated List – for example, because there were no grounds to suspect them of being associated with Al-Qaida, Usama bin Laden or the Taliban – would not decide those rights. Their assets would still be frozen and their good reputation would still be affected so long as their names remained on the Consolidated List. In order for these proceedings to have a direct and decisive effect on their rights to enjoy their property and their good reputation, it would have to result in their names being removed from the Consolidated List. That is not something which these proceedings can achieve. Again, that analysis is said to apply to all the decisions challenged on the claimants’ claims.[29]Nor is this analysis affected, so it is said, by the restrictions to which the claimants are subject under the EC Regulation. They became subject to those restrictions as a result of decisions of the Commission. The decisions of the Sanctions Committee did not mandate those decisions at all. All that was mandated by Art. 7a.1 of the EC Regulation was for the Commission to decide whether the claimants should be subject to those restrictions. In order for these proceedings to have a direct and decisive effect on their right to enjoy their possessions and their good reputation, it would have to result in their names being removed from Annex 1 to the EC Regulation. That is not something which these proceedings can achieve.[30]The distinction which the Secretary of State draws between proceedings whose outcome directly and decisively affects the claimants’ rights and proceedings whose outcome does not have that effect is said to be illustrated by a number of cases. First, Fayed v United Kingdom (1994) 18 EHRR 393 was the aftermath of the long-running dispute over the acquisition of Harrods by Mr Mohamed Al Fayed. By then, the case concerned the investigation by two inspectors appointed under the Companies Act to investigate the circumstances surrounding the acquisition of shares in House of Fraser Plc by a company owned by Mr Al Fayed and his brothers. When the inspectors’ report was published, it was critical of Mr Al Fayed and his brothers. They lodged an application with the Commission alleging that the inspectors’ report had determined their right to enjoy their reputation without having given them the fair trial guarantees of Art. 6(1). The European Court rejected that claim. It said at [56] that “[t]he result of the proceedings in question must be directly decisive for such a right or obligation, mere tenuous connections or remote consequences not being sufficient to bring Art. 6(1) into play”. Applying that principle to the facts of the case, the court said at [61]:
“… the functions performed by the Inspectors were, in practice as well as in theory, essentially investigative. The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter’s civil right to honour and reputation. The purpose of their inquiry was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities – prosecuting, regulatory, disciplinary or even legislative…. [N]o dispute … between the Secretary of State or the Inspectors and the applicants as to the lawfulness of any alleged interference with the applicants’ right to reputation arose merely because the applicants contested the grounds on which the Minister decided to appoint the Inspectors and on which the Inspectors conducted their lines of inquiry. In short, it cannot be said that the Inspectors’ inquiry ‘determined’ the applicants’ civil right to a good reputation, for the purposes of Art. 6(1), or that its result was directly decisive for that right.”
[31]Thinking of that kind informs the approach of the Security Vetting Appeals Panel. The panel hears appeals against decisions to refuse or withdraw security clearance. It provides non-binding recommendations to the relevant department or organisation. Following Fayed, it concluded in cases 4SCY5/1/22 and 4SCY5/1/29 that because it is only a recommending body, and therefore has no power to make decisions, its processes are not subject to Art. 6 since its recommendations are not directly decisive of any issues concerning an individual’s rights.[32]The final case is Maaouia v France (2001) 33 EHRR 21. In that case, a deportation order was made against a Tunisian following his conviction for various criminal offences. When he failed to comply with that order, he was sentenced in November 1992 to a further period of imprisonment, and an order was made excluding him from French territory for 10 years. In February 1994 the Administrative Court quashed the deportation order, and as a result the Court of Appeal in January 1998 rescinded the exclusion order. Relying on Art. 6, the applicant complained that the length of the proceedings had been excessive and unreasonable. The Government argued, amongst other things, that the proceedings for the rescission of the exclusion order had not related to a dispute over the applicant’s civil rights. The exclusion order had been made as a result of the applicant’s failure to comply with an order for his deportation from France, and the issue in the case had concerned his right to stay in France, which was “governed by public law and represented the exercise of public-authority prerogatives”. That was not a civil right within the meaning of Art. 6. The court agreed, but what is also important for present purposes was its holding at [38] that “[t]he fact that the exclusion order incidentally had major repercussions on the applicant’s private and family life or his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Art. 6”. That is said to be on all fours with the present case. The dispute in Maaouia had been about the legality of the exclusion order once the deportation order had been quashed. Although the outcome of that dispute affected the applicant’s right to respect for his private and family life, the dispute was not over that right, and the proceedings in which the dispute over the legality of the exclusion order was determined were not directly decisive of that right.[33]These are powerful arguments, but in the end they can, I think, be seen to be subject to a particular flaw, in that they concentrate on form and ignore the substance. If the only information which the Sanctions Committee was provided with about the claimants was that summarised in [6] above, it has to be the case that the Sanctions Committee made no independent assessment for itself of the claimants’ cases. In other words, if the Sanctions Committee added the claimants’ names to the Consolidated List without any information about why it was being said that the claimants were associates of members of the LIFG, the Sanctions Committee must have regarded the assessment by the British Government of what the claimants had been doing as decisive. So if it be the case that the only information provided to the Sanctions Committee was that summarised in [6] above, the practical reality in the claimants’ cases is that the FCO’s decision to request the Sanctions Committee to add the claimants’ names to the Consolidated List determined whether their names would be included on the list, even if as a matter of form it was the Sanctions Committee which made the decision. The Sanctions Committee in effect simply endorsed the FCO’s request, and it was the FCO’s request which causes the claimants’ names to be added to the Consolidated List, which itself resulted in the adverse publicity they received and inexorably led to the freezing of their assets. Because the Secretary of State’s suspicions that the claimants were involved in terrorism or terrorism-related activities led directly to the freezing of their assets, it is completely artificial to say, in effect, that the intervention of the Sanctions Committee in the process broke the chain of causation (if that is the relevant concept).[34]To put it another way, and linking the arguments to the language in which the principles about the reach of Art. 6 are couched,(a) the dispute between the claimants and the FCO is a dispute over their rights to enjoy a good reputation and to the free enjoyment of their possessions, because the Secretary of State’s suspicions about the claimants’ involvement in terrorism or terrorism-related activities led inexorably to the adverse publicity they received and the freezing of their assets, and(b) the current proceedings will – or should – be directly decisive of the claimants’ rights to enjoy a good reputation and to the free enjoyment of their possessions, because if the Sanctions Committee simply endorsed requests made by the FCO, any declaration that the court makes, for example, that the Secretary of State was not entitled to conclude that the claimants had been engaged in terrorism or terrorism-related activities, and any mandatory order it makes, for example, requiring the Secretary of State to seek the removal of the claimants’ names from the Consolidated List, will be directly decisive of those rights, because it is inconceivable that the Sanctions Committee, even if it thinks that the LIFG was an organisation which promoted and engaged in terrorism, would wish to retain the claimants’ names on the Consolidated List if the Secretary of State had not been entitled to conclude that the claimants had been engaged in terrorism or terrorism-related activities.[35]However, all of this is predicated on the premise that the only information about the claimants which the FCO gave to the Sanctions Committee was that summarised in [6] above. In its amended grounds of resistance to each of the claims, the Secretary of State identified the information which was given. However, the Secretary of State did not state that that was the only information which was given, and although Mr Squires told me that it had been conceded that this was the only information which was given, I have not seen that concession, and I do not know whether the Secretary of State agrees that that concession was made. Moreover, in respect of Mr Maftah, in the amended grounds of resistance, the Secretary of State qualified what was said about the reasons for seeking the inclusion of Mr Maftah’s name on the Consolidated List by saying “so far as [the reasons] could be openly stated”. Ultimately, therefore, the applicability of Art. 6 to these proceedings is going to depend on facts which may be in dispute, and I cannot say at present what the outcome of any dispute on the facts may be.[36]Finally, I should refer to two additional points made on behalf of the claimants. First, when Ahmed was decided by the Court of Appeal – then known and to be cited as A, K, M, Q & G v H M Treasury [2008] EWCA 1187 (Civ) – the Court of Appeal held that people who were subject to the restrictions in the Al-Qaida Order should be able to challenge their designation through a “merits based review”, in which they could discover the case against them and have an opportunity to meet it. What a “merits based review” involves is a matter of contention, the Secretary of State contending that it is a review of the merits in accordance with judicial review principles. But whatever a merits based review is, such a review may well be what procedural fairness requires, though it does not really help on the more refined question whether the claimants’ claims for judicial review involve the determination of their rights to enjoy a good reputation and to the free enjoyment of their possessions.[37]Secondly, in its summary grounds of resistance to Mr Khaled’s claim as it was originally formulated, the Secretary of State is said to have acknowledged that Art. 6 applied to any challenge by way of judicial review to the decision of the FCO not to support Mr Khaled’s request for his name to be removed from the Consolidated List. However, that apparent concession was given in the context of a claim that Art. 6 applied, not to the challenge by way of judicial review to that decision, but to the process by which the decision was made in the first place. It does not look as if the concession related to whether Art. 6 applied to any claim for judicial review which was brought to challenge the decision. But even if it was being conceded that Art. 6 applied to a challenge by way of judicial review to the FCO’s decision not to support Mr Khaled’s request for his name to be removed from the Consolidated List, it would not be right to refuse to let the Secretary of State withdraw that concession, whether on the basis that the Secretary of State had not intended to make any concession of the kind alleged on Mr Khaled’s behalf at all, or on the basis that it was intended to make such a concession but that the Secretary of State has subsequently had second thoughts about it.

Conclusion

[38]For these reasons, I cannot say definitively whether Art. 6 applies to these proceedings. On my analysis, it depends on how much information was given to the Sanctions Committee. That will have to be left to be decided by the judge who hears the claim on its merits. I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and it is therefore necessary for me to add that at present I do not think that there can be any appeal from this judgment, since the applicability of Art. 6 will ultimately be decided at the substantive hearing. However, if either party wishes to contend that an appeal lies from this judgment, and that permission to appeal should be granted, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will consider that application without a hearing on the basis of any written representations which the parties wish to make. The time for filing any appellant’s notice is extended to 14 days after the grant or refusal of permission to appeal. My inclination at present is to order that the costs relating to the issues which this judgment has addressed should be reserved for the judge who hears the substantive claim, but if any of the parties wish to argue otherwise, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will consider that without a hearing as well on the basis of any written representations which the parties wish to make.

Order

Implementation of Care Plan) [2002] 2 AC 291 at [69]-[71] and what Lord Hope said in R (on the application of McCann) v Crown Court at Manchester [2003] 1 AC 787 at [79]-[80]. The Secretary of State does not agree, but it is not necessary to resolve this dispute since it is common ground that the claimants’ rights to enjoy a good reputation and to the free enjoyment of their property are civil rights within the meaning of Art. 6(1), and that is sufficient for present purposes.

Cited in 3 later judgments