A v HM Treasury (Nos 1 &2)

JurisdictionEngland & Wales
JudgeSir Anthony Clarke MR,Lord Justice Sedley
Judgment Date30 October 2008
Neutral Citation[2008] EWCA Civ 1187
Docket NumberCase No: T1/2008/1080
CourtCourt of Appeal (Civil Division)
Date30 October 2008
Between :
A, K, M, Q & G
Applicants/ Respondents
and
H.m. Treasury
Respondent/appellant

[2008] EWCA Civ 1187

[2008] EWHC 869 (Admin)

Before :

Sir Anthony Clarke Mr

Lord Justice Sedley

And Lord Justice Wilson

Case No: T1/2008/1080

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon. Mr Justice Collins

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Rabinder Singh QC & Mr Richard Hermer (instructed by Messrs Tuckers) for G

Mr Tim Owen QC & Mr Dan Squires (instructed by Birnberg Peirce in the case of A, K and M and Public Law Solicitors in the case of Q)

for A, K, M & Q

Mr Jonathan Swift, Sir Michael Wood & Mr Andrew O'Connor (instructed by the Treasury Solicitor) for the Appellant

Hearing dates:16 & 18 June 2008

Sir Anthony Clarke MR

Introduction

1

This is an appeal by HM Treasury ('HMT') against orders made by Collins J on 24 April 2008. The orders were made on applications in two actions, in both of which HM Treasury is the respondent. By the first order, which was made in proceedings in which G is the applicant, the judge quashed both the Al-Qaida and Taliban (United Nations Measures) Order 2006 ('the AQO') and the Terrorism (United Nations Measures) Order 2006 ('the TO'). By the second order, which was made in proceedings in which A,K,M and Q are the applicants, the judge again quashed the TO. In each case HMT was ordered to pay costs but the orders were stayed pending the hearing of an appeal, which the judge gave HMT permission to bring. The judge further made an order in each case that the applicants should be granted anonymity and that no report of the proceedings should directly or indirectly identify any of them or any member of their families.

2

The judge quashed each Order on the ground that it was ultra vires and unlawful. In the case of each Order the central issue in this appeal is whether the judge was correct so to hold. If he was, there is a further question, namely whether he should have quashed the whole Order.

The legal framework

The United Nations Act 1946

3

I take the description of the Orders and their vires largely from the judgment. Both Orders were made under powers conferred by section 1 of the United Nations Act 1946 ('the UN Act'), which provides, so far as material:

“(1) If, under Article forty-one of the Charter of the United Nations signed at San Francisco on the twenty-sixth day of June, nineteen hundred and forty five (being the Article which relates to measures not involving the use of armed force) the Security Council of the United Nations call upon His Majesty's Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order …

(4) Every Order in Council made under this Section shall forthwith after it is made be laid … before Parliament.”

The judge noted in [3] that, although every Order must be laid before Parliament, there is no procedure which enables Parliament to scrutinise or to amend it, although no doubt an individual Member could seek to initiate a debate if he or she felt that an Order was unsatisfactory. The AQO and the TO were each laid before Parliament on the day after each was made and came into force on the following day. In these circumstances, although the likelihood of Parliamentary scrutiny seems more theoretical than real, I do not think that it is possible to challenge the lawfulness of the Orders on the ground that they were made ultra vires for lack of the possibility of such scrutiny. However, I do not understand the challenge to be advanced on this ground.

The United Nations

4

Article 41 of the Charter of the United Nations ('the UN') provides:

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.”

As the judge observed at [4], it is necessary to read Article 41 in the context of the purposes of the UN, which, by Article 1.3, include achieving international cooperation in solving international problems and, in particular, include “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”. Article 25 provides:

“The Members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Article 24 confers on the Security Council “primary responsibility for the maintenance of international peace and security”. Article 39, which introduces Chapter VII, provides that it is for the Security Council to

“… determine the existence of any threat to the peace, breach of the peace, or act of aggression and … decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.”

Article 42 deals with more positive action if action under Article 41 is or has proved inadequate. Article 103 provides:

“In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

5

By Article 25 Security Council Resolutions ('SCR's) create legal obligations binding on all States. We were referred to a large number of SCRs. The TO was made to give effect to SCRs 1373 (2001) and 1452 (2002). SCR 1373 was adopted on 28 September 2001 and formed part of the Security Council's response to the attacks of 11 September 2001. Paragraph 1 “decides that all States shall:

“(a) prevent and suppress the financing of terrorist acts;

(b) criminalise the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that their funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;

(c) freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;

(d) prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.”

Paragraph 2(d) requires all States to

“prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.”

6

It can be seen that the aim of SCR 1373 is preventative and that it is in very wide terms. HMT relies in particular on paragraph 8 of the preamble, in which the Security Council expressly recognised:

“… the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism.”

HMT correctly submits that this regime bites on direct and indirect transactions and ownership, on third party agents and entities and includes not only the commission of terrorist acts but also attempts to commit, participation in and facilitation of such acts. The importance of compliance with SCR 1373 has since been emphasised in the preambles to SCRs 1390, 1452, 1455, 1526, 1617 and 1735.

7

The TO was also made to give effect to SCR 1452 (2002), which is also part of the regime which led to the AQO. By way of exception, it provides by paragraph 1(a) that financial assets or economic resources which have been determined by the State to be

“(a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources. …”

should not be frozen. This is subject to notification to the UN Committee by the State in question of its intention to authorise access to such assets or resources and to the Committee not objecting within 48 hours. Paragraph 1(b) deals with what are described as “extraordinary expenses”, but a dispensation in respect of these requires the Committee's approval.

8

The AQO derives from a number of...

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