A & Ors v HM Treasury

The statutory power to make Orders in Council under section 1 of the United Nations Act 1946 is broad, and permits provisions which are expedient for the effective implementation of Security Council measures, including criminal offences. It did not, however, authorise extending designation to persons who may be involved in terrorism. Those words were severable. Asset-freezing offences were sufficiently certain and proportionate because their scope was defined by the Orders, licensing provisions and statutory defences. Procedural deficiencies did not invalidate the Terrorism Order as a whole: fairness was to be secured case by case. The Al-Qaida Order was lawful, but a person automatically designated through the UN listing regime was entitled to merits-based judicial review of the basis for listing.

HM Treasury appealed against Collins J’s decision, reported at [2008] EWHC 869 (Admin), quashing the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006. The Orders froze assets and created criminal offences pursuant to Security Council resolutions concerning terrorism and Al-Qaida-related sanctions.

The appeal concerned whether the Orders exceeded section 1 of the United Nations Act 1946, whether the designation tests were lawful, whether procedural safeguards and restrictions on intercept evidence made the schemes invalid, whether the criminal offences satisfied legal certainty and proportionality, and whether a person automatically listed by the UN had an effective domestic remedy.

1. Disposition. By a majority, the appeal was allowed in part. The Terrorism (United Nations Measures) Order 2006 was lawful after excision of the words “or may be” from article 4(2), but the individual directions were quashed because they had been made using that unlawful formulation. The Al-Qaida and Taliban (United Nations Measures) Order 2006 was lawful. G was entitled to a merits-based judicial review of the basis for his listing and to require the United Kingdom authorities to support delisting if the listing was unjustified.
2. Statutory power and designation. Section 1 of the United Nations Act 1946 used “necessary or expedient” disjunctively and conferred a wide discretion. A reasonable-grounds-for-suspicion test was within that power and was compatible with the preventive purpose of Security Council resolution 1373, provided the person concerned had a proper opportunity to challenge the designation. The addition of “or may be” went beyond the resolution and the statutory power. It was too wide and was not justified by the word “expedient”.
3. Severance and procedure. Applying the textual and substantial severability tests in DPP v Hutchinson [1990] 2 AC 783, the offending words could be removed while leaving the Order grammatical and its legislative purpose, operation and effect essentially unchanged. The absence of express statutory provision for special advocates or intercept evidence did not invalidate the Order as a whole. Courts could devise appropriate safeguards case by case, including special advocates and disclosure to the judge alone under section 18(7)(b) and section 18(8) of the Regulation of Investigatory Powers Act 2000. If a fair hearing proved impossible, the particular direction had to be set aside.
4. Criminal offences. Articles 7 and 8 were sufficiently certain and proportionate. “Economic resources”, “deal with”, “financial services”, and making resources available directly or indirectly were sufficiently intelligible. The licensing scheme and the defences based on lack of knowledge or reasonable cause to suspect were relevant to the assessment of certainty and proportionality. The scheme had to be administered fairly, rationally, expeditiously and with good sense.
5. Al-Qaida designation. Although the AQO automatically applied to persons on the UN Sanctions Committee’s list, domestic judicial review had to be available so far as possible to examine the underlying basis for listing. This followed from the constitutional right of access to the courts and the need to reconcile the United Kingdom’s UN obligations with fundamental rights. Sedley LJ dissented on the Terrorism Order, considering its procedural deficiencies and uncertainty sufficient to make it ultra vires, but agreed that an effective review of listing under the AQO was in principle available.

1. Court of Appeal (Civil Division). The majority held that the Terrorism (United Nations Measures) Order 2006 was lawful after severance, but quashed the individual directions made under the unlawful wording. The Al-Qaida and Taliban (United Nations Measures) Order 2006 was upheld subject to a merits-based judicial review remedy. Sedley LJ dissented concerning the Terrorism Order.
2. High Court of Justice, Queen’s Bench Division, Administrative Court. Collins J quashed the Orders as ultra vires and unlawful: [2008] EWHC 869 (Admin) .