UN security council resolutions (domestic enforcement of).
Article 25 of the 1946 United Nations Charter (UNC) requires the United Kingdom, as a member of the UN to carry out resolutions of the Security Council (UNSC) in accordance with the Charter. It provides in part that: "The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." As a result, the UK promptly passed the United Nations Act of 1946 (UNA). Section 1 of the UNA authorized the issuance of Orders in Council (OIC) to make such provision as seemed "necessary or expedient" to enable the UK government to issue internal orders that would effectively carry out UNSC Resolutions.
In 2006, the UK Council--under the powers conferred by Section 1 of the 1946 UNA--issued the following OICs titled Terrorism (U. N. Measures) Order 2006 ... (TO) and the Al-Qaida and Taliban (U. N. Measures) Order 2006 (AQTO) ... to give effect to SCRs, including R. 1373 (2001). The SCRs aimed to suppress and prevent the financing and preparation of terrorist acts. They broadly provided for the freezing of the financial assets and economic resources--save for basic expenses--of designated persons under the Orders.
Article 4(1)(2) of the TO empowered the Treasury to decide that an individual was a Treasury designate if it had reasonable grounds for suspecting that the individual "is or may be" a person who committed, tried to commit, took part in, or helped bring about the commission of, terrorist acts. Article 3(1)(b) of the AQTO provided, inter alia, that persons on a list compiled by the UNSC sanctions committee were designates.
Pursuant to Article 4 of the TO, the Treasury made such a direction with respect to each of the three Applicants in the first case [A, K, and M] and the Applicant in the second case [G]. The Treasury also informed G that it had also designated him under Article 3(1)(b) of the AQTO. This Treasury action froze the Applicants' bank accounts and denied him and his family access to their assets though they did obtain licences to go on receiving their social security benefits.
Applicants A, K, M, and G applied to the High Court under Article 5(4) of the TO to set aside these directions while G also sought judicial review of the AQTO. Holding that each Order was ultra vires of Section 1 of the 1946 Act, the judge quashed them and their directions as unlawful. The Treasury appealed.
The Court of Appeal allowed the Treasury's appeal in part. First, it held that the excision of the words "or may be" from the test of "reasonable suspicion" on which the Treasury had based its directions, preserved the validity of Article 4 of the TO. Secondly, it ruled that the challenged provisions of the AQTO were lawful, but that a person in G's situation had the right to seek judicial review of his designation.
Following that decision, G claimed a right to judicial review of the basis on which the sanctions committee had listed him and, in the alternative, sought an order quashing the AQTO. The judge declared that the AQTO, as a whole, was ultra vires as it applied to the Claimant. But the judge declined to quash it. Instead, it granted a certificate to enable the Treasury to proceed directly to the UK Supreme Court.
On the several appeals, three separate Supreme Court opinions agreed on quashing the Orders but relied on three distinct lines of reasoning for holding that the instant OICs were ultra vires: (1) that the relevant SCRs do not fall within the scope of the 1946 UN Act; (2) that the freezing orders violated rights protected by the European Convention on Human Rights; or (3) that the terms of the freezing orders fell outside the powers granted by the 1946 Act. Due to the cumulative length of the several fascinating opinions, the Update focuses on the first set to which three law Lords subscribed.
These Lords allowed the appeals of the Applicants(A, K, and M) in the first case. Briefly, they reasoned that, only express language or necessary implication could override fundamental rights. Thus, the general wording of [section] 1 of the UNA did not empower the executive branch to override the fundamental rights of these individuals. Moreover, UNSCR 1373 itself did not speak in terms of "reasonable suspicion" Thus, by introducing such a test, the TO went beyond what was necessary or expedient to comply with R 1373. Accordingly, these three court members would quash the TO as ultra vires of the powers conferred on the UK Council by Section 1 of the 1946 UN Act.
In the second case involving G, the Supreme Court allowed the Applicant's appeal in part and the Treasury's appeal in part over one dissent. The Court held that the AQTO, in its effort to effectuate the regime mandated by the UN sanctions committee:  failed to provide for basic procedural fairness, and  deprived those designated under it of the fundamental right of access to review by an effective judicial remedy. Accordingly, the Court quashed Article 3(1)(b) of the AQTO as ultra vires the powers conferred by the 1946 UNA [section] 1. It set aside, however, the lower court judge's declaration that the Order as a whole was ultra vires.
Lord Hope of Craighead, DPSC, with the concurrence of Lord Walker of Gestingthorpe and Baroness Hale of Richmond JJSC articulated the same rationale. What follows is an attempt to convey the gist of their reasoning, in part verbatim.
In order to give effect within the European Community to SCR 1333 (2000) and its successors, the UK Council adopted Regulation (EC) No K881/2002. It ordered the freezing of the funds and other economic resources of the persons and entities whose names appear on a list annexed to that Regulation.
The 2008 Act introduced a procedure for setting aside financially restrictive decisions taken by the Treasury. The Treasury imposed the restrictions on the Appellants in this case, however, pursuant to Section 1 of the 1946 Act and not under the specific powers which Parliament fashioned for that purpose.
On July 8, 2009, the Council laid before Parliament a further Order under the UNA in this sequence, the Terrorism (United Nations Measures) Order 2009 (SI 2009/1747). It came into force on August 10, 2009. Like the 2001 and 2006 TOs, it was made under Section 1 of the 1946 Act to give effect to SCR 1373 (2001). While it did revoke the 2006 Order, Article 26(4) provided that persons such as A, K, and M and G who had been designated under the 2006 Order were to remain subject to its terms until August 31, 2010 unless the Treasury revoked their designation by that date.
Two weeks after this Court had concluded the hearing of these appeals, Her Majesty's government informed G that it had revoked his designation under the 2006 Order but that it had redesignated him pursuant to the 2009 Order. On October 30, 2009 the government told A, K and M that it had redesignated them under the 2009 Order and had revoked their designations under the 2006 Order.
Two of the three cases before this court are appeals against orders made by the Court of Appeal on October 30, 2008. The first case involved A, K and M who are brothers in their thirties. They are UK citizens and, at the time of their designation, lived in East London with their respective wives and children. A and K no longer live with their families, however, and their current whereabouts are unknown.
Their solicitor, with whom they have not been in contact for several months, attributes their unknown whereabouts to the damaging effects upon them and their families of the regimes to which the Treasury had subjected them. They placed an extraordinary burden on their wives, created significant mental health difficulties and led ultimately to the breakdown of their marriages. M's marriage has also collapsed, but he does live at his ex-wife's address with his children.
The government has never charged or arrested either A, K or M for terrorism-related offenses. Letters dated August 2, 2007 told them that the government had made directions as to each of them under Article 4 of the TO. The letters stated that the Treasury had made the direction because it had reasonable grounds for suspecting that "you are, or may be, a person who facilitates the commission of acts of terrorism." They added that, due to the sensitivity of the underlying information, the government could not provide them with further details.
After their solicitors had asked for further information, in a letter dated September 12, 2007, the Treasury did disclose that an Al-Qaida linked operative had identified A and M as East London based Al-Qaida facilitators and that M and his brother K had traveled to Pakistan intending not only to deliver money to contacts there but also to undergo terrorist training.
A few days later, G got a letter from the Foreign and Commonwealth Office saying that the 1267 Committee of the UNSC had added G's name to its consolidated list. This meant that he was subject to a freezing of his funds, assets and economic resources. It also pointed out that these measures bound all UN member states and that UK law had merely implemented it. The letter also told G that he could petition the 1267 committee to seek delisting. On October 30, 2008, the Court of Appeal allowed the appeal in part.
In the UK Supreme Court, Lord Hope's opinion, after summarizing the underlying facts, then continues. "The effect of the regimes that the TO and the AQTO impose is that every transaction, however small, which involves the making of any payments or the passing of funds or economic resources whatever, directly or indirectly for the benefit of a designated person, is criminalised. This affects all aspects of his life, including his ability to move around at will by any means of private or public transport. To enable payments to be made for basic living expenses a system of licensing has been created. It is regulated by the Treasury, whose interpretation of the sanctions regime and of the system of licensing and the conditions that it gives rise to is extremely rigorous."
"The overall result is very burdensome on all the members of the designated person's family. The impact on normal family life is remorseless and it can be devastating, as the cases of A and K illustrate. As already mentioned, the effects on third parties have been ameliorated to some extent in the case of designations made under the 2009 Order. Some transactions are affected only if they are 'significant'. But, taken overall, the regime that is imposed under it remains to a high degree restrictive and, so far as the designated person himself is concerned, just as paralysing." [[paragraph]38].
"As [counsel] for A, K and M said at the outset of his submissions, the fundamental issue in this case is whether the Treasury was empowered by Section 1 of the 1946 Act to introduce an asset-freezing regime by means of an Order in Council (OIC). He submitted that the TO was ultra vires on three grounds: (1) [violation of the EU principle of legality] because it was passed without Parliamentary approval, (2) lack of legal certainty and proportionality and (3) the absence of procedures that enabled designated persons to challenge their designation." [[paragraph] 40]
"The question is what limits, if any, there are on the power conferred by this [UNA] subsection. According to its own terms, it extends to 'any' measures mandated by the Security Council. The word 'any' gives full weight to the obligation to accept and carry out the decisions of the Security Council that Article 25 of the UN Charter lays down. But the provisions that may be imposed by this means in domestic law must be either 'necessary' or 'expedient' to enable those measures to be 'applied' effectively."
"The exclusion of Section 1(1) of the Rules Publication Act 1893 by Section 1(4) and the direction that the Order is to be 'forthwith' after it is laid before Parliament are important pointers to the kind of measure that was envisaged when this provision [of the 1946 UNA] was enacted. They indicate that it was anticipated that the measures that the Security Council was likely to call for would require urgent action rendering Parliamentary scrutiny impracticable. As [was] said in the course of the debate at second reading, the procedure possessed 'the necessary combination of speed and authority to enable instant effect to be given to the international obligations to which we are pledged' [Cite]."
"The crucial question is whether the Section confers power on the executive, without any Parliamentary scrutiny, to give effect in this country to decisions of the Security Council which are targeted against individuals."
"The closer those measures come to affecting what, in [Cite] Lord Hoffmann [once] described as the 'basic rights of the individual,' the more exacting this scrutiny must become. If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive. [Cite]. ... The undoubted fact that Section 1 of the 1946 Act was designed to enable the United Kingdom to fulfill its obligations under the Charter to implement Security Council resolutions does not diminish this essential principle. ... "
"But these [UNSC] resolutions are the product of a body of which the executive is a member as the United Kingdom's representative. Conferring an unlimited discretion on the executive as to how those resolutions, which it has a hand in making, are to be implemented seems to me to be wholly unacceptable. It conflicts with the basic rules that lie at the heart of our democracy." [[paragraph]45].
"I would approach the language of Section 1 of the 1946 Act, therefore, on the basis that Parliament did not surrender its legislative powers to the executive any more than must necessarily follow from the words used by it. The words 'necessary' and 'expedient' both call for the exercise of judgment. But this does not mean that its exercise is unlimited. The wording of the Order must be tested precisely against the words used by the Security Council's resolution and in the light of the obligation to give effect to it that UNC Article 25 lays down."
"A provision in the Order which affects the basic rights of the individual but was unavoidable if effect was to be given to the Resolution according to its terms - may be taken to have been authorised because it was 'necessary'. A provision may be included which is 'expedient' but not 'necessary'. This enables provisions to be included in the Order which differ from those used by the resolution or are unavoidably required by it. But it does not permit interference with the basic rights of the individual any more than is necessary and unavoidable to give effect to the SCR and is consistent with the [EU law] principle of legality." [5 47].
"Detailed provision is made in Schedule 3 for the content of freezing orders, including a system for the granting of licences authorising funds to be made available. Orders made under the Act are subject to the affirmative resolution procedure (Section 10), and they cease to have effect after two years (Section 8). To a large degree, the power to make freezing orders under this Act enables the Treasury to do what paragraphs 1(d) and 2(d) of SCR 1373 (2001) require. But it is more precisely worded, and it contains various safeguards. Although the test in Section 4(2)(b) is that action which is a threat to the life or property of one or more nationals or residents of the United Kingdom has been or is likely to be taken, it is by no means obvious that the power that it confers was not available for use in the appellants' cases."
"In their [explanatory] letter dated 12 September 2007 to A, K and M's solicitors, the Treasury referred to various contacts between those Appellants and persons in Pakistan who were engaged in terrorist activities. The persons with whom they are said to have been in contact would appear to satisfy the conditions in subSection (2)(b) of Section 4, and they would appear to be persons of the kind referred to in Section 5(3)(b). Yet the Treasury have, it seems, chosen not to make use of the powers given to them by this Act, preferring to use the general power under Section 1 of the 1946 Act. [Counsel argued] that this was a matter for political control. By this I think he meant it was no business of the court to interfere. For the reasons already given, I disagree. In my opinion, the Rule of Law requires that the actions of the Treasury in this context be subjected to judicial scrutiny." [5 53].
"The TO, which was made in 2006 and replaced the 2001 Order, introduced the system, to which objection is taken in this case, for persons to be designated if they are identified in a direction given by the Treasury. The power to designate is set out in Article 4... It provides in paragraph (2)(a) that the Treasury may give a direction if they have reasonable grounds for suspecting that the person is or may be a person who commits, attempts to commit, participates in or facilitates the commission of acts of terrorism."
"The question is whether, by introducing the words 'have reasonable grounds for suspecting that the person is or may be', the Treasury exceeded their powers under Section 1 of the 1946 Act. The Court of Appeal held that the introduction of the 'reasonable grounds for suspecting' test was within the ambit of that Section, provided that the person's right to challenge the direction was preserved: but that there was no warrant in the SCR for the addition of the words 'or may be' and that, as the directions under the TO were made by reference to those words, they should be quashed... There is no appeal against its decision as to the inclusion of 'or may be', and the Treasury have made fresh directions against A, K, M and G which do not include these words. The validity of the 'reasonable grounds for suspecting' test remains in issue."
"SCR 1373 (2001) is not phrased in terms of reasonable suspicion. It refers instead to persons 'who commit, or attempt to commit, terrorist acts'. The Preamble refers to 'acts of terrorism'. The standard of proof is not addressed. The question how persons falling within the ambit of the decision are to be identified is left to the member states. Transposition of the direction into domestic law under Section 1 of the 1946 Act raises questions of judgment as to what is 'necessary' on the one hand and what is 'expedient' on the other. It was not 'necessary' to introduce the reasonable suspicion test in order to reproduce what the SCR requires. It may well have been 'expedient' to do so, to ease the process of identifying those who should be restricted in their access to funds or economic resources."
"But widening the scope of the Order in this way was not just a drafting exercise. It was bound to have a very real impact on the people that were exposed to the restrictions as a result of it. The facts of these cases show how devastating their imposition can be on the restricted persons and their families. This raises fundamental questions, such as  the standard of proof that should be required,  whether the directions should be capable of being challenged by an effective form of judicial review and  whether they should last indefinitely or be time limited. The validity of the introduction of the reasonable grounds test must be assessed in the light of the entire system that the TO provides for. Is it acceptable that the exercise of judgment in matters of this kind should be left exclusively, without any form of Parliamentary scrutiny, to the executive?" [[paragraph][paragraph] 56-58].
"I do not think that these arguments are sufficient to meet the basic objection to the use of the powers of Section 1 of the 1946 Act to impose the restrictions provided for by the TO on the grounds of a reasonable suspicion only. I can leave aside the use of unsupervised delegated powers to block access to the courts--which Sedley LJ in the Court of Appeal, I think rightly, regarded as a fatal flaw in the Order. [Cite]. It was common ground that, given the intensity of judicial review that would be appropriate under Part 6 of the 2008 Act, this objection has been met by the fact that decisions of the Treasury under the UN Terrorism Orders are subject to its provisions: see Section 63(1)(a) of the 2008 Act. There remains, however, the objection that the restrictions strike at the very heart of the individual's basic right to live his own life as he chooses. ... It is no exaggeration to say, [Cite] that designated persons are effectively prisoners of the state. I repeat: their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating."
"I would hold that, by introducing the reasonable suspicion test as a means of giving effect to SCR 1373 (2001), the Treasury exceeded their powers under Section 1(1) of the 1946 Act. This is a clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament [Cite] As Lord Hoffmann said in Regina v. Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131, fundamental rights cannot be overridden by general or ambiguous words."
"The absence of any indication that Parliament had the imposition of restrictions on the freedom of individuals in mind when the provisions of the 1946 Act were being debated makes it impossible to say that it squarely confronted those effects and was willing to accept the political cost when that measure was enacted. In my opinion, the TO is ultra vires Section 1(1) of the 1946Act and, subject to what I say about the date when these orders should take effect, it, together with the directions that have been made under it, in the cases of A, K, M and G must be quashed." [[paragraph][paragraph] 60-61].
With the concurrence of his two noble and learned friends, Lord Hope concludes: "I would allow the appeals by A, K, M and G. I would declare that the TO is ultra vires and I would quash
that Order. I would allow G's appeal as regards the AQTO to the extent of declaring that Article 3(1) (b) of that Order is ultra vires and setting aside G's designation for the purposes of that Order. Had the Terrorism (United Nations Measures) Order 2009 under which A, K, M and G have now been redesignated been before us, I would have quashed that Order too as it is open to objection on the same grounds." [[paragraph]83].
CITATION: Ahmed et al. v. Her Majesty's Treasury,  UKSC 5;  2 W.L.R 378; 2010 WL 308594.
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|Publication:||International Law Update|
|Date:||Jan 1, 2010|
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