Domestic Judicial Review of International Bodies: Youssef v. Foreign Secretary [2016] UKSC 3

In Youssef, an Egyptian national who has been present in Britain since 1994 challenged a decision taken in 2005 by the Foreign Secretary. In his capacity as a member of the U.N. Security Council’s Sanctions Committee, the Secretary had released a ‘hold’ on Mr. Youssef’s being placed on a sanctions list; the consequence of being so designated was that an asset freeze came into effect by virtue of British and European Union law. The asset freezing regime (which has been subject to a considerable number of challenges before various judicial organs) targeted individuals linked to Al-Qaida. Mr. Youssef advanced four grounds of challenge, none of which convinced the Supreme Court (Lord Carnwath, with whom Lords Neuberger, Mance, Wilson and Sumption agreed) to quash the decision.

First, the Committee considered evidence obtained by torture before designating him. Although the Secretary knew that the Committee relied on torture-tained evidence, however, his decision was based on an independent assessment prepared by the British authorities. Moreover, as Lord Carnwath observed, the principles of judicial review “cannot be divorced from the legal context, statutory or common law”, which here “was that of a body operating under international law, not subject to the domestic courts”: “If the Secretary of State alone is to be subject to review, there must be some legal principle by which under domestic law his vote can be distinguished from those of other members” (at para. 22).

No such principle could be identified: “There is no legal basis for attributing to [the Foreign Secretary] reasons which he did not have” (at para. 27). Even international law’s distaste for torture and torture-tainted evidence could not avail Mr. Youssef, because the rules of international law “do not suggest or imply any duty on states to inquire into the possible reliance on such evidence by other states, whether on their own or as parts of an international organisation such as the 1267 committee” (at para. 29). In the absence of any independent duty on the Foreign Secretary to inquire into the evidence on which his counterparts had acted, there was no basis for judicial intervention, especially given the “caution” courts must exercise in reviewing decisions taken pursuant to the foreign-relations prerogative (at para. 24).

Second, Mr. Youssef claimed that there was an insufficient basis in domestic law for the decision, arguing “that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority” (at para. 31). Lord Carnwath gave a “short answer” to this invocation of the Entick v. Carrington principle, responding that the effects that Mr. Youssef felt in Britain were “directly and specifically authorised” by a European Union regulation which has the force of law by virtue of the European Communities Act 1972: “In my view the regulation, taken with the 1972 Act, provides ample statutory authority to satisfy the Entick principle. That is not affected by the causative role played by the 1267 committee, nor by the Secretary of State as a member of that committee. That was a lawful exercise of his prerogative powers…For the purpose of domestic law regulation 881, given effect by a United Kingdom statute, stands on its own feet” (at para. 34).

Third, the standard of proof applied by the Secretary was one of reasonable suspicion of association with Al-Qaida, too low a standard, according to Mr. Youssef, given the drastic consequences of the Secretary’s decision.  Here, Lord Carnwath held, it was necessary to give the Committee and the Secretary a margin of appreciation in administering the asset-freezing regime: “The position of a decision-maker trying to assess risk in advance is very different from that of a decision-maker trying to determine whether someone has actually done something wrong. Risk cannot simply be assessed on a balance of probabilities. It involves a question of degree” (at para. 50). Indeed, as a member of the Committee, “the Secretary of State was not only entitled, but would be expected, to apply the same approach as the committee as a whole” (at para. 50).

Fourth, Mr. Youssef attacked the rationality of the decision. He suggested even that the English courts could substitute their judgement for that of the Committee, but Lord Carnwath gave this short shrift: “Even accepting that [the Secretary’s] decision is judicially reviewable, it is to the member states, as members of the committee, that the Security Council has entrusted the task of determining whether the criteria for listing are fulfilled. It would be quite inconsistent with that regime for a national court to substitute its own assessment of those matters” (at para. 58). Lord Carnwath side-stepped the argument altogether. He first pointed out that Mr. Youssef was “unable to show how an order quashing the 2005 decision, or a declaration of illegality, would have any substantive effect on his present position” (at para. 60) because the Secretary now prefers, based on a 2014 report by the U.N.’s Ombudsperson, to keep Mr. Youssef on the Committee’s list. Moreover, in the circumstances, Lord Carnwath was not minded to exercise his discretion to afford relief to Mr. Youssef :

More generally, the court should in my view be very slow to grant a substantive remedy in the circumstances now facing the court. Judicial review is a discretionary remedy. The court is not required to ignore the appellant’s own conduct, or the extent to which he is the author of his own misfortunes. I appreciate that the material disclosed by the Ombudsperson’s report became available after the Court of Appeal’s judgment, and indeed after the grant of permission to appeal to this court. It is not formally in issue before us. Further the appeal raised important issues of law which needed a decision. I can understand therefore why it was decided to defer for the moment detailed consideration of any challenge to the latest decision. However, the fact remains that there is before the court unchallenged evidence showing that the appellant is at least a strong vocal supporter of Al-Qaida and its objectives. That stands uneasily with his simple denial in 2010 of any involvement in terrorism. If those allegations were misplaced, I would have expected him to want to say so publicly at the first opportunity. I raised my concern with Mr Otty at the opening of the appeal, but I heard no convincing answer. Even if the appellant were otherwise entitled to some relief, I would be very hesitant about granting it so long as these allegations stand unrefuted (at para. 61).

This is an interesting reminder that judicial review remedies are discretionary and that, in exercising their discretion, judges can range very widely indeed.

More generally, this case demonstrates how difficult it can be to challenge the decisions of international bodies in domestic courts. First, the actions or intentions of others cannot easily be attributed to a domestic decision-maker. Here, the balance between individual rights as represented by the prohibitions against torture and the use of torture-tainted evidence, and the need to give the executive broad latitude in matters of foreign affairs was struck in favour of the prerogative  — though given Lord Carnwath’s ultimate conclusion as to the appropriateness of granting a remedy, a more generous approach to attribution would not have had disastrous consequences. Second, a decision-maker is likely to find somewhere in the complex web of international, transnational and domestic sanctions provisions a source of authority for action — the force of the Entick principle is surely weakened in such circumstances, all the more so when a domestic court can respond to its invocation by pointing an applicant towards the possibility of conducting parallel proceedings in another system (see e.g. para. 49).

This content has been updated on February 12, 2016 at 11:20.