In January 2010, the Supreme Court gave its judgment on HM Treasury v Ahmed. The case involved the freezing of assets of five men who were suspected of financing terrorism. Given the constitutional significance of this case and its raising of issues related to abuse of executive power, human rights, and international terrorism, it is arguably the most important Supreme Court case to date. The most significant issue facing the court was whether the provisions under the Terriosm Order 2006 (TO) and the Al-Qaida and Taliban Order 2006 (AQO) introduced by the Treasury to freeze the assets of individuals on the grounds of reasonable suspicion that they were involved in terrorism were ultra vires according to s 1(1) of the United Nations Act 1946. Counsel for the defendants argued that both orders were in breach of s 8 of the Human Rights Act 1998 for their incompatibility with art 8 of the European Convention on Human Rights. Furthermore, both the TO and AQO were passed without Parliamentary scrutiny, which raises questions as to the legitimacy of the orders in light of the issues previously mentioned.
History of the TO and AQO
The history of the TO and the AQO can be traced back to the United Nations Security Council Resolutions (UNSCRs) which were passed to deal with the increasing threats posed by international terrorism over the past decade. The resolutions allow for the freezing of assets of members of the Taliban, their accomplices, and any person involved in international terrorism. Giving effect to these resolutions is s 1 of the United Nations Act 1946, which gave authority to the Treasury to make Orders in Council such as the TO and AQO.
Under the TO, a person’s assets can be frozen if there is a ‘reasonable suspicion’ that he or she is involved in international terrorism. In this case, three of the five defendants (referred to as A, K, and M in the trial) had access to their bank accounts, welfare benefits, and other assets blocked under the TO; their only remaining resource was a small sum of money that covered little more than basic expenditures. Considering the effects such an action has on the defendants’ personal and family lives, the court considered whether reasonable suspicion was an appropriate threshold. Moreover, the term itself surpasses the scope of the UNSCR and leads to unintended consequences, thus begging the question as to whether it is an abuse of executive power.
The courts have dealt with the issue of reasonable suspicion in the past with respect to stop and search powers given to the police when dealing with members of the public. Under the s 43(1) of the Terrorism Act 2000, the police have the legal right to stop and search an individual if there are reasonable grounds for suspecting that he or she is terrorist. Once the search is carried out and questioning of the suspect completed, providing that no lawful reason to detain the individual has become apparent, the individual is free to leave and must be informed of his or her right to do so. It would seem appropriate that the same logic which prevents restricting an individual’s physical freedom no more than necessary for stop and search should apply to the economic freedom of a person for whom there is only a reasonable suspicion that they are involved in terrorism. Unless legally admissible evidence can be produced to show the subject is in fact a terrorist or aiding terrorist activity, then freezing one’s assets seems disproportionate to the charge.
No challenge Rule
The United Nations Security Council devised a list, known as the ‘Consolidated List,’ which provided names of individuals suspected of Taliban association whose assets were to be frozen by member states. Critically, it bars persons on the list from challenging their inclusion before an independent judge, and provides no information to the subject as to why they have been included. The AQO introduced these provisions into UK law with an automatic freezing of the assets of individuals named on the ‘Consolidated List,’ and consequently G and HAY had their assets frozen as a result of their inclusion. Counsel for HAY argued that the AQO was ultra vires according to the United Nations Act 1946 as the Order prohibits the defendant from accessing a fair remedy through the courts.
Here the case raises issues of fundamental concern in a free democratic state such as the UK. In a justice system built on fairness and where phrases such as, ‘‘innocent until proven guilty,’’ and, ‘‘equality and justice for all,’’ are more than just legal fiction, barring an individual suspected of international terrorist activity from access to the courts to defend himself seems unimaginable. This case brought these issue to the fore on an appropriate stage: the highest court in the land.
Supreme Court Judgment
In a ground-breaking decision, it was held that the TO should be set aside as ultra-vires according to s 1(1) of the United Nations Act 1946, and likewise in a majority decision of six to one (Lord Brown dissenting) that the art 3(1)(b) of the AQO was to be quashed on similar grounds. The decision signalled a shift in power back to the legislature. Its far-reaching implications with respect to fundamental freedoms has laid the foundation for future development of this body of law and subsequently is most deserving of its place as the most significant human rights case the UK Supreme Court has heard to date.
King’s College London