Bank Mellat v Her Majesty’s Treasury (No 2): SC 19 Jun 2013

The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic missile programmes. The bank sought to have the direction given under section 7 of the 2008 Act.
Held: (Reid, Hope LL dissenting, Dyson, Carnwath, Neuberger LL dissenting in part) The direction was set aside. The interruption of the Bank’s commercial dealings was not a proportionate means of interrupting the pursuit by Iran of a nuclear weapons programme. The justification for singling out the appellant bank was inadequate. Additionally it had not been given the required notice of the proposal to make the direction, and therefore had not been able to make representations. The duty of fairness was not excluded by the possibility of recourse to the courts.
Lord Sumption considered the development of the test of proportionality, with a four stage test, saying that: ‘the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.’
Lord Reed observed that: ‘the intensity [of review] – that is to say, the degree of weight or respect given to the assessment of the primary decision-maker – depends on the context.’
The concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them.
He set out four principles: ‘(1) whether the objective of the relevant measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.’

Lord Neuberger, President, Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, UKSC 2011/0040, [2014] 1 AC 700
Bailii Summary, Bailii, SC Sumary, SC, WLRD
Counter-Terrorism Act 2008 7, Human Rights Act 1998
England and Wales
At first instanceBank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Appeal fromBank Mellat v HM Treasury CA 13-Jan-2011
Under the 2009 Order, the appellant Bank’s UK operations had been shut down. It appealed against the Order, but the respondent had brought evidence, closed save to the respondent, and the order had been confirmed.
Held: The bank’s appeal . .
See AlsoBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
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CitedWiseman v Borneman HL 1971
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Held: A refusal to examine evidence submitted to a tribunal initially when there . .
CitedF Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
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CitedEdinburgh District Council v Secretary of State for Scotland SCS 1985
Inner House . .
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Held: The prisoners’ appeals were allowed.
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CitedBates v Lord Hailsham of St Marylebone ChD 1972
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Held: He succeeded on the grounds that the decision had been taken in breach of the . .
CitedIllinois State Board Of Elections v Socialist Workers Party Et Al 22-Feb-1979
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Lists of cited by and citing cases may be incomplete.

International, Banking, Human Rights

Updated: 30 December 2021; Ref: scu.510915