Publication: The e-Regulator

Maftah and another v Secretary of State for the Foreign Office and Commonwealth Affairs ([2011] EWCA Civ 350) was an appeal by the Secretary of State against the decision at first instance that Article 6(1) rights could be invoked by an individual whose assets had been frozen by the state.

The respondents were two Libyans who had been living in exile for many years in the UK, who had been associated with the Libyan Islamic Fighting Group (LIFG), an organisation which was once thought to be linked with Al Qaeda.  At the instigation of the British government, both men had been placed on a list, kept by the Sanctions Committee of the United Nations, of people thought to be associated with terrorism.  As a result, all their assets were frozen and funds could only be released to them at the discretion of the executive.

In the Court of Appeal judgment, Lord Justice Sedley considered the distinction between straightforward public law matters and administrative decisions which engaged civil rights and obligations.  Their Lordships were in agreement that when a decision to control the financial assets of an individual is taken by the Executive, this is covered by public law, taking precedence over civil rights (see Ferrazzini v Italy (2002) 34 EHRR 45).

Although there is a tension between the legality of imposing the order and the effects on the individual, the respondents’ inclusion on the list was a legitimate exercise of the Executive’s public law function, and thus no Article 6 protection could be extended to the respondents.

Sedley LJ distinguished the facts of this case from professional regulatory proceedings, where the exercise of an administrative function may involve the registrant’s civil rights as per Article 6(1) (Konig v Germany (1978) 2 EHRR 170).  If a person’s ability to earn a living will be affected by the decision of a regulatory body, then they are entitled to rely on the protection of Article 6.  His Lordship emphasised the difference between this situation, and the case before him, when an administrative body had intervened to freeze and limit an individual’s assets without any long-term impact on their civil right to generate an income through practising a profession.

From a regulatory perspective, the judgment of Sedley LJ reinforces the principles that have been filtering through from both European and Domestic case law.  Although exercising an administrative function within the remit of public law, regulatory bodies need to be aware that there are occasions when registrants’ Article 6 rights will be invoked; particularly when the outcome prevents a registrant from practising.  Interestingly, Maftah equally underlines for individuals involved in such matters that the Court is not prepared to extend Article 6 rights in all circumstances, even if there may appear a prima facie case for doing so.