Secretary of State for the Foreign Office and Commonwealth Affairs v E Maftah and A Khaled
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Smith,The Lord Chief Justice of England and Wales |
| Judgment Date | 13 April 2011 |
| Neutral Citation | [2011] EWCA Civ 350 |
| Date | 13 April 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2010/2522 |
[2011] EWCA Civ 350
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE KEITH
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Sedley
and
Lady Justice Smith
Case No: C1/2010/2522
Mr Jonathan Swift QC (instructed by Treasury Solicitors) for the Appellant
Mr Rabinder Singh QC and Mr Dan Squires (instructed by Public Law Solicitors) for the Respondent
Hearing date: Wednesday 23 February 2011
This is an appeal by the Secretary of State against the decision of Keith J, sitting as a judge of the Administrative Court, [2010] EWHC 1868 (Admin), that the claimants' respective applications for judicial review potentially involved the determination of rights governed by article 6 of the European Convention on Human Rights.
Article 6(1) provides:
In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The question was whether the two claims for judicial review involved, or might involve, the determination of the claimants' civil rights within the meaning of article 6. By order of Mitting J it was taken as a preliminary point, though it was not capable of being dispositive of the claims in whichever sense it was answered.
Both claimants are Libyans who have lived in exile here for many years. Each was placed, at the instigation of the government of the United Kingdom, on a list maintained by the Sanctions Committee of the United Nations Security Council of persons believed to be associated with Al Qaida, Usama Bin Laden or the Taliban. Neither had any notice of the proposal nor any opportunity before or after being listed to challenge it.
The purpose and effect of listing are to freeze all the individuals' assets, to place the release of any funds entirely in the discretion of the executive and thereby to make them what in A and others v HM Treasury [2008] EWCA Civ 1187, §125, I called a prisoner of the state. Until the Order in Council providing for this regime was struck down as unlawful by the Supreme Court ( [2010] UKSC 2) it was pursuant to it that the listing of the claimants was implemented. But both up to and since that time the listing has also been pursuant to a similar regime created by EU Regulation 881/2002.
It has now been accepted by the United Kingdom that the organisation (the Libyan Islamic Fighting Group) with which the two claimants had allegedly been associated is not, or at least is no longer, linked to Al-Qaida. Mr Maftah, at the United Kingdom's request, has now been de-listed. Despite a similar request, Mr Khaled has so far not been. But the claimants wish to be cleared of the suggestion that either of them at any time had terrorist connections.
One means to this end is to establish that the sole evidence against them – assuming that it amounted to evidence – was of association with the LIFG; if it was, to refute it; and, if it was not, to have the opportunity to deal with any other evidence deployed against them. Mr Maftah is concerned in particular that the Libyan regime may have taken advantage of a recent rapprochement with the United Kingdom to supply false information about opponents who are beyond its physical reach.
It is considered by the Secretary of State that the fair hearing vouchsafed by article 6 is or may be more generous in the disclosure it affords than the common law which, as is accepted on all hands, will otherwise govern the conduct of these proceedings. The assumption has not been argued out; but this makes it more, not less, necessary to express concern, which I believe the other members of the court share, at any assumption that the standard of fairness set by the common law for the judicial determination of civil issues is in any respect, disclosure included, weaker than that set by article 6 of the Convention.
Since, however, it falls to us, irrespective of whether it has any practical consequences, to decide whether Keith J was right or wrong about the issue, I turn to the arguments.
All six of the impugned acts were either decisions of the Foreign and Commonwealth Office (FCO) to take steps which resulted in the listing of the claimants or omissions of the FCO to take steps in relation to their delisting. They are justiciable as forms of allegedly unlawful conduct on the part of the state in which the claimants have a sufficient interest to seek judicial review. But each act or omission necessarily and designedly impinges on the claimants' private life (and therefore on an interest protected by article 8) and on the enjoyment of their property (and thus on an interest protected by article 1 of the First Protocol). Both claims would stand up in public law whether or not this was so; but it is on the inexorable invasion of Convention rights that the present argument that the claims involve civil rights turns.
The FCO's case is that the alleged infringement of Convention rights is at most a side-effect of what is in every material respect a challenge to the legality of the exercise of sovereign powers, and in no more than a marginal sense a vindication of civil rights. The claimants' case is that the litigation is centrally about the violation by deliberate and targeted executive action of rights which have been patriated by the Human Rights Act and are par excellence civil rights.
The judge's conclusion was that the litigation concerned civil rights within the scope of article 6(1). His reasons in essence were that the Secretary of State was putting form above substance, and that the substance of the claims concerned decisions taken in Whitehall which it was known would automatically bring about the listing of anyone who was named, destroying their reputations, invading their private lives and paralysing their assets, and thus – subject to imponderables to which the judge drew attention – attacking civil rights recognised by the Convention itself.
Since we have had to go through the case-law on the subject, it is no disrespect to Keith J if we turn directly to it without reproducing his careful analysis of it.
The only thing which is certain is that civil rights in article 6 have an autonomous meaning. The Strasbourg court has made this clear on more than one occasion. What is neither certain nor clear is what that meaning is.
Dr König was a plastic surgeon in private practice whose professional association laid a charge of professional misconduct against him before a medical tribunal which was a satellite of the local administrative court. The charge was found proved and his appeal to a higher court failed. His Convention claim related to the length of time the proceedings had taken, so that he first had to establish that they had involved a determination of his civil rights. This he succeeded in doing: König v Germany (1978) 2 EHRR 170. The reason was that the proceedings concerned not his registration – an administrative matter – but his right to earn a living on the basis of it: see §91. The Court, however, did not treat the distinction as definitive: it found in the doctor's favour "without it being necessary in the present case to decide whether the concept of 'civil rights and obligations' [in art. 6(1)] extends beyond those rights which have a private nature".
König was an early case in the Court's jurisprudence. It has been succeeded by two cases which make it fairly clear that some forms, at least, of state action fall outside the autonomous concept of civil rights and obligations.
In Pellegrin v France (2001) 31 EHRR 26 a senior civil servant who had been, in effect, removed from office was held by the Grand Chamber not to have a claim under article 6(1). Although the facts are a long way from the present cases, it is the way the court expressed its reasoning which has relevance to the Secretary of State's case:
66. ….. In practice, the Court will ascertain, in each case, whether the applicant's post entails – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In doing so, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its Communication of 18 March 1988 and by the Court of Justice of the European Communities.
67. Accordingly, no dispute between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6(1) since the Court intends to establish a functional criterion. ….
…..
70. The facts of the case show that the tasks assigned to the applicant gave him considerable responsibilities in the field of the State's...
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