Balancing Human Rights Protections And International Obligations In The Post-Brexit UK Sanctions Regime: John Binns Writes LexisNexis Case Note

• Published date: 10 December 2021
• Subject Matter: Government, Public Sector, Criminal Law, Constitutional & Administrative Law, Money Laundering, Human Rights, Corporate Crime
• Law Firm: BCL Solicitors LLP
• Author: Mr John Binns

BCL partner John Binns's corporate crime analysis for 'R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs' has been published by Lexis PSL.

Here's an extract from the article:

'Corporate Crime analysis: The Supreme Court, in R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs, has rejected a challenge to the UK's regime for implementing United Nations (UN) financial sanctions, on the basis that it offered no opportunity to obtain a de-listing in UK courts. It did this despite two previous rulings, one by the Supreme Court itself and one by the Court of Justice of the European Union (CJEU) in Luxembourg, which struck down similar regimes on the same basis. The change suggests a watering-down of human rights protections, both in the case law of the European Convention on Human Rights (the ECHR) at Strasbourg, including to respect due process rights under Article 6, and in the UK's post-Brexit framework for sanctions. Written by John Binns, partner at BCL, and member of the PSL Corporate Crime Consulting Editorial Board. John has acted in the EU and UK courts for people listed under financial sanctions.

R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs [2021] EWHC 3188 (Admin)

What are the practical implications of this case?

As a first major sign of how the courts will police our new domestic framework for sanctions, the judgment in Youssef frankly does not bode well at all. Indeed, as the framework of SAMLA 2018 is far from the only example of post-Brexit actions by Parliament where the role of the Supreme Court will be crucial, as part of a broader picture it suggests the court is prepared to be surprisingly supine. It is a salutary reminder that fundamental rights, which so often fall to be protected by some of the world's least popular people, are more fragile than we often think, and should not be taken for granted.

What was the background?

At heart, the case is about the decisions of the UK's three branches of government about how to balance human rights protections and international obligations, as well as a reminder of the supremacy of Parliament. The starting point is that the UK, as a UN member state, is obliged to comply with UN resolutions. Previously, Parliament sought to do this via the United Nations Act 1946 (the 1946 Act), by which it empowered the Crown to make Orders in Council. Later, it gave direct effect, via the European Communities Act...