Hay v HM Treasury

A statutory instrument made under general enabling powers is unlawful in its application where its operation effectively removes access to the courts to challenge a serious interference with fundamental rights. The court must ensure that judicial review is an effective supervisory remedy, not a merely formal one. Where a person is listed under a United Nations sanctions regime and the United Kingdom lacks the information relied on for listing, a merits review may be practically impossible. If no effective remedy is available, the enabling legislation must contain clear authority for that consequence. The Al Qaida and Taliban (United Nations Measures) Order 2006 was therefore ultra vires the United Nations Act 1946 insofar as it applied to the claimant.

The claimant was automatically made subject to the asset-freezing regime under the Al Qaida and Taliban (United Nations Measures) Order 2006 after the United Nations 1267 Committee listed him. He challenged the Order as applied to him, contending that it deprived him of an effective means of challenging the factual basis of his designation and unlawfully interfered with fundamental rights.

The Court of Appeal had previously upheld the Order while recognising that a merits-based judicial review might be available, and had left open the difficulties arising where the United Kingdom did not possess all the information before the Committee. The Foreign and Commonwealth Office supported de-listing but did not know the full basis of the listing. The central issue was whether the claimant had an effective judicial remedy and, if not, whether the Order was ultra vires section 1 of the United Nations Act 1946.

1. Claim allowed. The Al Qaida and Taliban (United Nations Measures) Order 2006 was quashed insofar as it applied to the claimant.
2. The Court of Appeal’s decision in A, K, M, Q and G v HM Treasury established that a person listed by the 1267 Committee could in principle seek judicial review directed to the basis of listing or the Government’s response to a request for de-listing. That solution depended on the possibility of an effective merits review. The Court of Appeal had left open cases where the Government did not know the facts relied on by the Committee.
3. Here, the United Kingdom was not the designating state. The Foreign and Commonwealth Office had obtained only part of the material before the Committee. Its conclusion that the listing was no longer appropriate was not determinative, because the Committee might reach a different conclusion on the information available to it. A court could not conduct an effective merits review without access to the full factual basis of the listing.
4. The court’s supervisory role could not be reduced to tokenism. The practical effect of the Order was to prevent the claimant obtaining effective judicial protection against an alleged wrongful interference with basic rights. The difficulty could not be solved without disclosure of the missing material, and no alternative solution had been identified.
5. The principle of legality applied. General words in section 1 of the United Nations Act 1946 did not clearly authorise removal of effective access to the courts or interference with fundamental rights. The question whether the Order was ultra vires in the absence of an effective judicial remedy remained open after the Court of Appeal decision; on the present facts, it had to be answered in the affirmative. Freezing orders could still be made to implement the United Nations resolutions, but enabling legislation would be required.

First-instance judicial review in the Administrative Court. The judgment considered the Court of Appeal’s decision in A, K, M, Q and G v HM Treasury, [2008] EWCA Civ 1187, which had upheld the relevant Order but recognised that difficulties might arise where the United Kingdom lacked the underlying designation material. The present claim was allowed on the different factual circumstances identified by the court.