Her Majesty’s Treasury (Respondent) v XX Ahmed and others (FC)(Appellants); Her Majesty’s Treasury (Respondent) v XX (FC) (Appellant); R (on the application of Hani XX) (Respondent) v Her Majesty’s Treasury (Appellant) [2010] UKSC 2
- 2010
- United Kingdom
Topics
Membership in a terrorist organisationLegal bases
The United Nations Act 1946 (1946 Act) United Kingdom: The Terrorism (United Nations Measures) Order 2006 United Kingdom: The Terrorism (United Nations Measures) Order 2009 United Kingdom: The Al-Qaida and Taliban (United Nations Measures) Order 2006Courts
The Supreme Court (UKSC), United KingdomLaws
Right to respect for private and family lifeFacts
In response to various incidents of international terrorism, including the attacks on 9/11, the UN Security Council (“the UNSC”) passed resolutions (“UNSCRs”) requiring member states to take steps to freeze the assets of: (i) Usama Bin-Laden, the Taliban and their associates; and (ii) those involved in international terrorism. The UNSC established a list of persons whose assets member states were obliged to freeze (“the Consolidated List”). Those included in the Consolidated List are not informed of the basis for their inclusion or afforded the right to challenge the decision before an independent and impartial judge. The AQO transposes the UNSCRs concerning the Taliban into domestic law. Accordingly, if a person is named in the Consolidated List, the Al-Qaida and Taliban Order (AQO) provides that his assets in the UK will automatically be frozen. The respondents in this case were the subject of asset freezes under the Terrorism Order (TO) and the Al-Qaida and Taliban Order (AQO) made by Her Majesty’s Treasury pursuant to s.1 of the United Nations Act 1946 which authorises the making of such Orders in Council as are ‘necessary or expedient’ to give effect to UNSCRs. S.1(1) of the 1946 Act allows Orders to be made without Parliamentary scrutiny. In addition, the Treasury had issued new designations in respect of XX, XX, XX (Ahmed and others) and XX (al-Ghabra) under the authority of the Terrorism Order (United Nations Measures) 2009 (“TO 2009”). The terms of the TO 2009 are substantially similar to those of the 2006 TO. The issue before the Court was whether s.1(1) of the 1946 Act gave the Treasury the power to make the TO and AQO, having regard to: (i) the gravity of the interference with fundamental rights which the asset freezes bring about [e.g. their freedom of movement, their liberty and private and family lives, and those of their families and their associates] ; (ii) the fact that the TO allowed asset freezing on grounds of ‘reasonable suspicion’; and (iii) the fact that the AQO entirely deprived those named in the Consolidated List of any right of access to a court.
Legal grounds
The United Nations 1946 Act; The Terrorism (United Nations Measures) Order (TO) 2006; The Al-Qaida and Taliban (United Nations Measures) Order (AQO) 2006; The Terrorism (United Nations Measures) Order (TO) 2009; Article 8 ECHR.
Findings
The Supreme Court unanimously held that the TO should be quashed as ultra vires. It also held by a majority of six to one that Article 3(1)(b) of the AQO must also be quashed as ultra vires. It was noted that if the designations in respect of XX,XX, XX and XX imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed. The court noted the seriousness of the interferences with fundamental rights that the TO effects and the fact that the AQO offers no means whereby anyone can challenge the decision to list them as terrorists, before their assets are frozen automatically. According to the court, the UK’s Anti-terrorism, Crime and Security Act (2001) has an asset freezing provision that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO.