Secretary of State for the Foreign Office & Commonwealth Affairs v Maftah & Anor

A public law challenge to administrative action determines civil rights for the purposes of article 6(1) only where the action’s nature and purpose make its impact on private rights determinative of the challenge. The exercise of an executive power is not excluded merely because it is characterised as sovereign.

Procuring or maintaining a targeted asset-freezing measure is the discharge of a public function. A judicial review directed to the lawfulness of that conduct does not determine civil rights, despite its grave effects on privacy, reputation and property. Convention rights incorporated into domestic law may themselves be civil rights, but their incidental vindication does not change the essential subject matter of the proceedings.

The respondents were Libyan exiles whom the United Kingdom had caused to be listed by the United Nations Sanctions Committee as persons associated with Al-Qaida, Usama Bin Laden or the Taliban. Listing froze their assets and affected their private lives and reputations. They sought judicial review of decisions and omissions by the Foreign and Commonwealth Office concerning their listing and delisting.

Keith J held in [2010] EWHC 1868 (Admin) that the claims potentially involved the determination of civil rights governed by article 6(1) of the European Convention on Human Rights. The Secretary of State appealed. The preliminary issue was whether challenges to the procurement and continuation of the listings involved, or might involve, the determination of the respondents’ civil rights.

1. Appeal allowed unanimously. Sedley LJ delivered the leading judgment. Smith LJ and the Lord Chief Justice agreed.

2. The autonomous concept of civil rights under article 6(1) can apply where administrative action directly affects private rights. Whether it does so depends on the nature and purpose of the administrative action. Taxation may therefore fall outside article 6 despite its direct pecuniary effects, while professional regulation may fall within article 6 where it determines a person’s ability to earn a living.

3. There is no overriding exclusion for every act described as an exercise of sovereign state power. That contention wrongly equates the state with the executive and attributes to executive action an autonomy which it does not possess. Executive acts remain subject to judicial review as to the limits of the executive’s lawful province.

4. The procurement or continuation of the freezing measures was a discharge of public functions undertaken in the international effort to contain terrorism. The measures also constituted a targeted interference with privacy, reputation and property. Nevertheless, the judicial review claims challenged the lawfulness of procuring and maintaining the measures, rather than determining their effects upon private rights. Their subject matter therefore did not involve the determination of civil rights under article 6(1).

5. Article 8 rights incorporated through the Human Rights Act are domestic civil or private rights and can qualify as civil rights for article 6 purposes. That did not resolve the present issue. Judicial review depends upon a sufficient interest in an arguable abuse of power, rather than upon proof of the existence and invasion of a positive right. The respondents’ Convention rights might be vindicated if their claims succeeded, but the claims turned upon the propriety of the executive acts and omissions.

6. The court expressed serious doubt that common-law fairness would require less disclosure or provide a less robust standard than article 6. That concern did not affect the disposition of the preliminary issue.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 350, the court unanimously allowed the Secretary of State’s appeal and held that the judicial review claims did not involve the determination of civil rights under article 6(1).

2. Administrative Court: Keith J held in [2010] EWHC 1868 (Admin) that the claims potentially involved the determination of rights governed by article 6.