Al Quaida list and the use of prerogative powers

1 November 2013 by Rosalind English

Youssef v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 1302, 29 October 2013 – read judgment

There was nothing unlawful in the Foreign Secretary’s decision to allow a UK resident to be added to the UN’s Consolidated List of members of Al-Quaida and its associates .

This was an appeal against the Administrative Court’s dismissal of the appellant’s claim for judicial review of the secretary of state’s decision to allow him to be added to a list of persons subject to sanctions under UN Security Council Resolution 1617. This Resolution required UN member states to freeze the assets on those named on the Consolidated List of members of Al-Qaida and its associates. The relevant UN committee was asked to add the name of the appellant, an Egyptian national resident in the UK, to the list. The secretary of state placed a hold on the appellant’s designation so the UK could consider whether he met the criteria for designation. The Foreign Secretary subsequently accepted that he did meet the criteria and released the hold, which meant that he was added to the list. Once a designation is made, it lasts until all members of the Security Council can be persuaded that it should be lifted.

Factual background

The appellant had claimed asylum in the UK in 1994 on the grounds that he had been harassed and tortured by the Egyptian security forces. He was granted temporary admission but four years later  the Home Secretary rejected his claim for asylum on the basis of the UK Security Service’s assessment that he was a senior member of the Egyptian Islamic Jihad terrorist group. There was no appeal against the Home Secretary’s decision. Whilst he was detained, pending his removal from the country, the British Embassy in Cairo was informed by the Egyptian authorities that the appellant had been identified as one of the leaders of the revolutionary organisation in confessions by other accused persons.  In asylum proceedings involving another of the defendants it was accepted that there was good evidence that the proceedings of the military court were unfair, that the evidence before it was probably obtained by torture and that no credence should be given to the convictions in that trial. Because of safety on return issues and the failure to obtain the necessary assurances from the Egyptians the appellant was released without charge in July 1999.

The arguments before the Court

The appellant contended that the inclusion of his name on the Consolidated List was unlawful for three reasons.

1.  Ground 1 was that the correct standard of review of the decision was review on the merits, rather than the conventional rationality test (Wednesbury [1948] 1 KB 223); and had that standard been applied, the Secretary of State’s decision to lift the hold would have been exposed as irrational.
2. Ground 2 was that the appellant’s designation had been proposed for reasons which rested on evidence obtained by torture in Egypt; and in those circumstances it was the Secretary of State’s duty to maintain the hold and so prevent the designation.
3. Ground 3 was that the Secretary of State had supported the designation (by releasing the hold) because he determined that there were reasonable grounds to suspect that the appellant met the criteria for designation; but this was a legal error: to support the designation he must have been satisfied that the criteria were in fact met.

Reasoning behind the judgment

The secretary of state had been acting under the royal prerogative. This was because, in making a decision whether to support or oppose the designation of an individual by the Sanctions Committee, the Foreign Secretary had not been not exercising a power derived from an Act of Parliament. He was acting on behalf of the Government in its capacity as a member of an international body, the Security Council. Of course the exercise of prerogative power is in principle subject to the judicial review jurisdiction. However –

it is important to be clear as to the juridical basis on which, in any given such case, the court may intervene. Judicial review of the use of statutory power in most cases turns on the actual or presumed intention of Parliament in passing the empowering legislation; but the Prerogative, by definition, involves no Act of Parliament. A judicial review of Prerogative power must found entirely on standards which are the product of the common law. Of these, reason and fairness are the cornerstones.

Furthermore, the secretary of state had been obliged to apply the Consolidated List regime to its proper subjects in order to give effect to sanctions imposed by the Security Council within the EC, under Regulation 881/2002, which has direct effect. The EC scheme largely mirrors that of the Security Council. The imposition of sanctions was in principle authorised by that Regulation and the secretary of state had acted conformably with the regime.

Laws LJ took the opportunity to restate some of the principles relating to the constitutional separation of powers, a beautifully clear exposition which is worth setting out in full:

 It is a commonplace that rights of appeal arise only under statute. Common law judicial review is not an appellate jurisdiction; its purpose is to confine the subordinate decision-maker within his proper legal limits, not to remake his decisions. It is therefore no coincidence that, generally, the judicial review court is not an arbiter of merits. It is so for good constitutional reasons. Absent a general right of appeal conferred by statute, a merits judgment by the court of a decision taken under statutory powers tends to usurp the decision-maker’s function as Parliament’s delegate. Likewise a merits judgment of a decision taken under the Prerogative tends to usurp the function of the executive, which is the sole arm of government to inherit the Prerogative power. Manifestly, the courts have no business to usurp the legislature or the executive. It follows that a merits judgment in a judicial review case will be the exception. It will arise only where that is required in order to test the legality of the decision under review. An instance is where the primary decision-maker’s jurisdiction to act depends upon proof of a precedent fact: in such a case, the judicial review court will ascertain whether the precedent fact is proved. Another instance, of considerable importance in today’s jurisprudence, is given by a shift in the boundary between fact and law. This is what has happened in cases where the law now requires a decision to be not only reasonable, but proportionate to a legitimate aim. This is of course a touchstone of review in many human rights cases. Where it arises, the judicial review court will test for proportionality; and to the extent (but only to the extent) that the exercise requires it, judge the merits. [41]

The instant case was not such a case. There was no question of precedent fact. Nor was there any issue of proportionality: not only because this was outside the territory of the Human Rights Convention, but also because the Secretary of State was not required to exercise a discretionary judgment where there might have been alternative outcomes – “fertile ground for a proportionality approach”.

It was argued on behalf of the appellant that the nature of the prohibition of torture by international law, being ius cogens erga omnes, required the Secretary of State to object to the listing. The Sanctions Committee as a “quasi-judicial” body was or should have been obliged to respect the international rule. The Court of Appeal disagreed. The status on ius cogens erga omnes empowered but did not oblige a state to intervene with another to insist on respect for the prohibition of torture. The appellant’s argument entailed an obligation on the secretary of state to intervene. Given that the Foreign Secretary’s own reasons for lifting the hold were not tainted by torture evidence, there was nothing in the appellant’s case save an insistence that the UK should have “stymied the designation because other states were not so pure.” [55]

The law did not require it to do so.

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