In 2005 the Foreign Secretary, sitting on a United Nations sanctions committee, lifted the United Kingdom’s hold on listing Mr Youssef, an Egyptian national living in Britain, as a person associated with Al-Qaida. The listing led to an asset freeze. The Supreme Court dismissed his appeal, holding that the Secretary of State did not have to block the listing because other members might be relying on torture-tainted material, that the freeze took effect in Britain under European legislation, and that reasonable grounds for suspicion was an appropriate preventive test.
The decision under challenge
Mr Youssef had lived in the United Kingdom since 1994. In March 2005 Egypt asked the United Nations Security Council’s Resolution 1267 Committee, also called the Sanctions Committee, to add him and others to its list of people associated with Al-Qaida. People on that list are subject to an asset freeze under Chapter VII of the United Nations Charter. The committee acts by consensus: every member must agree before someone is listed or removed.
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The United Kingdom had placed a hold on his designation. On 14 September 2005 the Secretary of State removed that hold in his capacity as the United Kingdom’s member of the committee. Mr Youssef then became subject to the freeze under the Charter and under the European and national measures giving it effect. In December 2010 he sought judicial review of that decision and of a letter of 14 October 2010, in which the Secretary of State refused to widen a request for removal so as to rely on torture-tainted evidence. The Divisional Court and the Court of Appeal dismissed the claim.
The international listing and the domestic effect of the asset freeze raised distinct questions. The challenge here was to decisions of the UK Foreign Secretary.
Torture-tainted material
Egypt’s information relied on a conviction in Mr Youssef’s absence and included evidence which had been, or might have been, obtained by torture. The Secretary of State knew that. His own decision rested instead on a Security Service assessment referring to historical links with Egyptian Islamic Jihad, an arrest in 1998 connected with a planned attack on the United States embassy in Tirana, extreme views, and a remaining potential to re-engage. A narrative summary published years later referred to allegations connected with Egypt. Mr Youssef said those allegations resulted from torture of his co-accused. The Secretary of State did not specifically contradict that assertion, but by then he already considered, on other grounds, that listing was no longer justified.
The appellant argued that the prohibition on torture, treated in earlier authority as a peremptory norm of international law, required the Secretary of State not only to avoid using such evidence himself, but also to refuse to participate in a committee decision which might be tainted by it. Lord Carnwath, with whom the other Justices agreed, rejected that argument, as the courts below had done.
The reviewable act was the Secretary of State’s own decision to lift the hold. Its domestic source was the prerogative power to conduct foreign relations. That did not make it immune from review, but the courts are cautious in that area. The Secretary of State accepted that his own decision was reviewable under ordinary public-law principles, while decisions of the other members and of the committee were not. Lord Carnwath was content to proceed on that concession without deciding it. Conduct of relations between states through the Security Council is not generally for a domestic court. This case was distinguishable because the committee’s action was directed at a named person living in the United Kingdom and, at the time, its procedures gave him no other means of challenge.
Even so, the court could judge the Secretary of State only by reasons he actually held. There was no basis for attributing to his 2005 decision a collective narrative published in 2010, when no collective statement had been required. Nor did the international materials create a duty to inquire into other members’ evidence and withhold agreement merely because torture might have been used. Duties said to follow a definitive international finding of illegality did not arise from suspicion alone.
Authority for the freeze
Mr Youssef relied on the principle that the state cannot interfere with property by prerogative alone. He said that lifting the hold was intended to lead, and did lead, to the freezing of his assets.
Lord Carnwath held that the interference in this country was directly authorised by Regulation 881, given legal force by the European Communities Act 1972. No issue had been raised about the effectiveness of that Act. A challenge to the regulation belonged in the European courts, not the domestic courts. The Secretary of State’s earlier vote was a lawful exercise of the prerogative and did not itself require statutory authority. The Court of Appeal was right to rely on the regulation, but wrong both to treat it as authority for the vote and to think that statutory authority was required at that earlier stage.
The standard applied in 2005
It was common ground that the Secretary of State asked whether there were reasonable grounds for suspecting that Mr Youssef was associated with Al-Qaida. That appeared from evidence of the responsible official, not from a formal statement of reasons. The official expected the same conclusion on a balance of probabilities; the court did not itself make that finding. The appellant said the test was too low. He relied on the Supreme Court’s earlier decision quashing domestic orders under the 1946 Act, where a reasonable-suspicion standard was held to go beyond what that Act authorised and to affect basic rights without clear parliamentary authority.
Lord Carnwath found the contrast troubling, but held that those reasons did not apply here. They turned mainly on the general words of a 1946 statute being used for a novel United Nations measure aimed directly at individuals. Regulation 881 was made specifically to give effect to the current regime and was open to European judicial review. Later United Nations material, including guidance associated with the Financial Action Task Force and the Ombudsperson’s approach, supported a preventive standard of reasonable grounds, or a reasonable and credible basis, rather than proof on a balance of probabilities. Assessing a risk of future involvement is different from deciding whether someone has already done wrong. As a committee member, the Secretary of State was entitled, and would be expected, to apply the committee’s approach.
The intensity of review
The lower courts had asked whether the 2005 decision was rational and had given substantial respect to the security assessment. The appellant sought a full merits review, or at least a proportionality analysis. The Secretary of State accepted that review should lie towards the intense end of the scale and could incorporate proportionality, but not that the court should substitute its own decision.
The Court recognised the need for careful scrutiny where important rights are affected. It did not use this case to lay down a single standard for every judicial review.
The emphasis on irrationality was, in the light of later authority, misplaced. The appellant had nevertheless not identified any part of the reasoning which failed a proportionality test. Beyond a general denial, he had not addressed the specific matters in the 2005 assessment or given grounds for displacing the assessment of future risk.
No useful remedy
Lord Carnwath added that a flaw in the 2005 decision would not itself have justified relief. Judicial review is discretionary. Quashing that decision would not have undone the committee’s listing or its application through Regulation 881. By 2009 the Secretary of State was already supporting removal, and his change of mind in 2014 followed the Ombudsperson’s report rather than any defect in the 2005 reasoning. Lord Carnwath also referred to unchallenged material, not formally in issue, which he described as showing that Mr Youssef was at least a strong vocal supporter of Al-Qaida and its objectives. That sat uneasily with the bare denial in 2010. The parties had agreed that, after this judgment, the Secretary of State would reconsider his position so far as necessary in the light of the Court’s findings and any representations.
Verdict: The Supreme Court unanimously dismissed the appeal. It upheld the challenged decisions and granted no relief. It did not make its own finding as to whether Mr Youssef was associated with Al-Qaida.
Source: Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3
