CR1-09-10-22-Session2_IMX30_1.mxf

Session: pm
Session date: 2009 Oct 22

CASE ID: UKSC 2009/0015
Case name: Her Majesty's Treasury (Respondents) v Mohammed al-Ghabra (FC) (Appellant)
Case summary:
Judgment: The Supreme Court has unanimously held that the TO should be quashed as ultra vires s.1(1) of the 1946 Act. It also held by a majority of six to one (Lord Brown dissenting) 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 A, K, M and G imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed.
Reasons for the judgment: General Remarks Lord Hope (with the agreement of Lord Walker and Lady Hale) giving the leading judgment, noted the far-reaching and serious effect of the asset freezing measures on the individuals concerned and their families [paras [4], [38], [39] and [60]]. s.1(1) of the 1946 Act allows Orders in Council to be made without even the most basic Parliamentary scrutiny [paras [48]-[50]]. In the absence of Parliamentary control the Court must carefully examine such drastic measures [paras [5], [6] and [53]]. Australia and New Zealand gave effect to their UNSCR obligations by primary legislation that was subjected to the scrutiny and approval of their respective legislatures. Also, the Anti-terrorism, Crime and Security Act 2001 enacted an asset freezing regime that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO [paras [51]-[54]]. The legislative history of the 1946 Act demonstrates that Parliament did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens’ fundamental rights [paras [16] and [44]]. The principle of legality requires that general or ambiguous statutory words should not be interpreted in a manner that infringes fundamental rights [paras [45] and [46]], and s.1(1) of the 1946 Act must be interpreted in this light. Orders made under s.1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR requires [para [47]]. The TO The relevant UNSCRs did not address the standard of proof for imposing asset freezes. The ‘reasonable suspicion’ standard in the TO must be assessed in light of the entire system that the TO establishes, particularly the seriousness of the interferences with fundamental rights that it effects [paras [58]-[60]]. By introducing a test of reasonable suspicion the Treasury exceeded the power conferred by s.1(1) of the 1946 Act [para [61]]. The AQO Lord Hope noted that the effect of the AQO, in this case, did not rely upon a ‘reasonable suspicion’ criterion and that – in contrast to the TO – the AQO does not go beyond the relevant UNSCRs [para [64]]. But there are no means whereby G or HAY can challenge the decision to list them as terrorists, with the consequence that their assets are frozen automatically, before an independent and impartial judge [paras [77]-[80]]. Article 3(1)(b) of the AQO must therefore be quashed [paras [81] and [82]]. The Status of the Designations Against A, K, M and G pursuant to the TO 2009 The principal criticisms directed against the TO apply equally to the TO 2009 [paras [28]]. Had the TO 2009 been before the Court it would have been quashed [para [83]]. Other Comments Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Court’s judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted [para [157] per Lord Phillips]. The features of the AQO that are characterised as objectionable are the ineluctable consequence of giving effect to the relevant UNSCRs – the same apparent deficiency would apply to primary legislation. Accordingly, the AQO should be upheld [paras [203]-[204] per Lord Brown (dissenting)].
Hearing start date: 2009 Oct 22
Hearing end date: 2009 Oct 22

CASE ID: UKSC 2009/0016
Case name: Her Majesty's Treasury (Respondents) v Mohammed Jabar Ahmed and others (FC) (Appellants)
Case summary:
Judgment: The Supreme Court has unanimously held that the TO should be quashed as ultra vires s.1(1) of the 1946 Act. It also held by a majority of six to one (Lord Brown dissenting) 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 A, K, M and G imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed.
Reasons for the judgment: General Remarks Lord Hope (with the agreement of Lord Walker and Lady Hale) giving the leading judgment, noted the far-reaching and serious effect of the asset freezing measures on the individuals concerned and their families [paras [4], [38], [39] and [60]]. s.1(1) of the 1946 Act allows Orders in Council to be made without even the most basic Parliamentary scrutiny [paras [48]-[50]]. In the absence of Parliamentary control the Court must carefully examine such drastic measures [paras [5], [6] and [53]]. Australia and New Zealand gave effect to their UNSCR obligations by primary legislation that was subjected to the scrutiny and approval of their respective legislatures. Also, the Anti-terrorism, Crime and Security Act 2001 enacted an asset freezing regime that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO [paras [51]-[54]]. The legislative history of the 1946 Act demonstrates that Parliament did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens’ fundamental rights [paras [16] and [44]]. The principle of legality requires that general or ambiguous statutory words should not be interpreted in a manner that infringes fundamental rights [paras [45] and [46]], and s.1(1) of the 1946 Act must be interpreted in this light. Orders made under s.1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR requires [para [47]]. The TO The relevant UNSCRs did not address the standard of proof for imposing asset freezes. The ‘reasonable suspicion’ standard in the TO must be assessed in light of the entire system that the TO establishes, particularly the seriousness of the interferences with fundamental rights that it effects [paras [58]-[60]]. By introducing a test of reasonable suspicion the Treasury exceeded the power conferred by s.1(1) of the 1946 Act [para [61]]. The AQO Lord Hope noted that the effect of the AQO, in this case, did not rely upon a ‘reasonable suspicion’ criterion and that – in contrast to the TO – the AQO does not go beyond the relevant UNSCRs [para [64]]. But there are no means whereby G or HAY can challenge the decision to list them as terrorists, with the consequence that their assets are frozen automatically, before an independent and impartial judge [paras [77]-[80]]. Article 3(1)(b) of the AQO must therefore be quashed [paras [81] and [82]]. The Status of the Designations Against A, K, M and G pursuant to the TO 2009 The principal criticisms directed against the TO apply equally to the TO 2009 [paras [28]]. Had the TO 2009 been before the Court it would have been quashed [para [83]]. Other Comments Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Court’s judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted [para [157] per Lord Phillips]. The features of the AQO that are characterised as objectionable are the ineluctable consequence of giving effect to the relevant UNSCRs – the same apparent deficiency would apply to primary legislation. Accordingly, the AQO should be upheld [paras [203]-[204] per Lord Brown (dissenting)].
Hearing start date: 2009 Oct 22
Hearing end date: 2009 Oct 22

CASE ID: UKSC 2009/0018
Case name: R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty's Treasury (Appellants)
Case summary:
Judgment: The Supreme Court has unanimously held that the TO should be quashed as ultra vires s.1(1) of the 1946 Act. It also held by a majority of six to one (Lord Brown dissenting) 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 A, K, M and G imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed.
Reasons for the judgment: General Remarks Lord Hope (with the agreement of Lord Walker and Lady Hale) giving the leading judgment, noted the far-reaching and serious effect of the asset freezing measures on the individuals concerned and their families [paras [4], [38], [39] and [60]]. s.1(1) of the 1946 Act allows Orders in Council to be made without even the most basic Parliamentary scrutiny [paras [48]-[50]]. In the absence of Parliamentary control the Court must carefully examine such drastic measures [paras [5], [6] and [53]]. Australia and New Zealand gave effect to their UNSCR obligations by primary legislation that was subjected to the scrutiny and approval of their respective legislatures. Also, the Anti-terrorism, Crime and Security Act 2001 enacted an asset freezing regime that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO [paras [51]-[54]]. The legislative history of the 1946 Act demonstrates that Parliament did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens’ fundamental rights [paras [16] and [44]]. The principle of legality requires that general or ambiguous statutory words should not be interpreted in a manner that infringes fundamental rights [paras [45] and [46]], and s.1(1) of the 1946 Act must be interpreted in this light. Orders made under s.1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR requires [para [47]]. The TO The relevant UNSCRs did not address the standard of proof for imposing asset freezes. The ‘reasonable suspicion’ standard in the TO must be assessed in light of the entire system that the TO establishes, particularly the seriousness of the interferences with fundamental rights that it effects [paras [58]-[60]]. By introducing a test of reasonable suspicion the Treasury exceeded the power conferred by s.1(1) of the 1946 Act [para [61]]. The AQO Lord Hope noted that the effect of the AQO, in this case, did not rely upon a ‘reasonable suspicion’ criterion and that – in contrast to the TO – the AQO does not go beyond the relevant UNSCRs [para [64]]. But there are no means whereby G or HAY can challenge the decision to list them as terrorists, with the consequence that their assets are frozen automatically, before an independent and impartial judge [paras [77]-[80]]. Article 3(1)(b) of the AQO must therefore be quashed [paras [81] and [82]]. The Status of the Designations Against A, K, M and G pursuant to the TO 2009 The principal criticisms directed against the TO apply equally to the TO 2009 [paras [28]]. Had the TO 2009 been before the Court it would have been quashed [para [83]]. Other Comments Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Court’s judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted [para [157] per Lord Phillips]. The features of the AQO that are characterised as objectionable are the ineluctable consequence of giving effect to the relevant UNSCRs – the same apparent deficiency would apply to primary legislation. Accordingly, the AQO should be upheld [paras [203]-[204] per Lord Brown (dissenting)].
Hearing start date: 2009 Oct 22
Hearing end date: 2009 Oct 22