No core minimum of disclosure for reviewing designation by the UN


Re: Khaled & Anor v Secretary of State for Foreign and Commonwealth Affairs & Anor [2017] EWHC 1422 (Admin)

The claimants were designated by the UN Sanctions Committee and were subject to an extremely restrictive asset-freezing regime. The claimants are seeking judicial review of this designation. The issue before the court in the instant case was the level of disclosure the claimants were entitled to, to pursue judicial review.

The defendants’ argued that the Justice and Security Act 2013 is exhaustive of both the claimants’ rights and the Defendants’ correlative disclosure obligations, that the “principles of disclosure” applicable to these proceedings are solely those located in that statute.  Thus, the defendants submitted that the 2013 Act comprises a comprehensive statutory code leaving no space for the introduction of any common law principles inconsistent with that regime.  The claimants argued that the common law requires the provision of a “core minimum of disclosure” in order to render these proceedings fair, that s 7(3) of the 2013  Act gives express embodiment to this fairness obligation; this core minimum was described as “A-type disclosure”.

Held: the claimants were not entitled to a core minimum of disclosure because this would contradict the provisions of the 2013 Act. Firstly, the phrase “in the interests of the fair and effective administration of justice in the proceedings” has a unitary, autonomous meaning within s 7(3); and one which reflects the policies and objects of Part 2, which is to make provision for a closed material procedure if certain conditions are met. Secondly, the notion of the fair and effective administration of justice within this statutory scheme leaves no room for the infiltration of common law principles which are inconsistent with it.

Dan Squires QC was involved in this case.