Youssef v Secretary of State for Foreign and Commonwealth Affairs

A minister participating in an international sanctions committee is judged in domestic judicial review by reference to the minister’s own reasons. The prohibition on using torture-tainted evidence does not impose a duty to investigate whether other states may rely on such material.

An asset freeze implemented through directly effective European legislation has sufficient statutory authority. For preventive sanctions based on prospective risk, a reasonable and credible basis for listing is permissible; proof on the balance of probabilities is inappropriate. Review may be correspondingly intense and incorporate proportionality, but it is not a merits appeal and national courts cannot substitute their assessment for that entrusted to committee members.

The appellant challenged the Foreign Secretary’s 2005 decision, as a member of the United Nations Security Council’s sanctions committee, to remove a hold on his designation as associated with Al-Qaida. The designation resulted in an asset freeze implemented through European and domestic law.

The Divisional Court dismissed the judicial review claim: [2012] EWHC 2091 (Admin). The Court of Appeal also dismissed it: [2013] EWCA Civ 1302; [2014] QB 728.

The appeal concerned whether the Foreign Secretary had to prevent designation because other members might rely on torture-tainted evidence; whether prerogative power supplied lawful authority; whether reasonable suspicion was an adequate standard; and whether the decision required proportionality or merits review. The court also considered whether later events made relief inappropriate.

1. Appeal dismissed. Lord Carnwath gave the unanimous judgment, with which Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agreed.
2. The domestic challenge concerned the Foreign Secretary’s logically prior decision to remove the United Kingdom’s hold, not the decision or collective reasons of the international committee. The Foreign Secretary’s power derived from the foreign-affairs prerogative. The court proceeded, without deciding the point, on the basis that the decision was reviewable because it directly affected an individual in the United Kingdom and the committee then offered no means of challenge. Review nevertheless concerned the Foreign Secretary’s own reasons. There was no legal basis for attributing other members’ reasons to him.
3. The peremptory prohibition of torture and the duty to reject torture-tainted evidence did not create a duty to inquire whether other states might rely on such evidence. Nor did mere suspicion of another state’s illegality require the United Kingdom to withhold its support. The Foreign Secretary’s own evidence was untainted, so this ground failed.
4. The interference with property occurred through Council Regulation (EC) No 881/2002, given legislative effect domestically by the European Communities Act 1972. Those measures supplied ample statutory authority for the constitutional principle that executive interference with property requires legal authority. The earlier participation of the Foreign Secretary in the committee was a lawful exercise of prerogative power and required no separate statutory authority.
5. The sanctions regime was preventive and assessed prospective risk. Such risk cannot simply be determined on the balance of probabilities. A standard asking whether sufficient information provided a reasonable and credible basis for listing was appropriate. As a committee member, the Foreign Secretary was entitled and expected to apply the committee’s approach.
6. Assuming proportionality review was appropriate, the court would accord the executive a wide margin of judgment on national-security risk. Proportionality did not authorise a full merits review or permit a domestic court to substitute its assessment for that entrusted to committee members. No specific defect was shown in the assessment. In any event, later unchallenged material, the continuing international listing and the Foreign Secretary’s intervening decisions meant that relief would have no substantive effect and should be refused.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously: [2016] UKSC 3 .
2. Court of Appeal: The appeal from the Divisional Court was dismissed: [2013] EWCA Civ 1302 ; [2014] QB 728.
3. Divisional Court of the High Court: The judicial review claim was dismissed: [2012] EWHC 2091 (Admin) ; [2013] QB 906.