HMT v Mohammed Jabar Ahmed (UKSC): Limiting Executive Power in the Post-9/11 World

On January 27, 2010, the UK Supreme Court struck down two UK Orders in Council that formed the entirety of the country’s terror financing and asset-freezing law (Her Majesty’s Treasury v Mohammed Jabar Ahmed and others; Mohammed al-Ghabra; Hani El Sayed Sabaei Youssef, [2010] UKSC 2; [2010] UKSC 5. The Court held the laws to be ultra vires the executive; the serious violations of human rights at the centre of such laws could only be justified when enacted by Parliament or subject to Parliamentary oversight.

On February 4, 2010, the Court further went on and denied the Government’s motion to suspend its judgment and give the Government an opportunity to rework the laws. By doing so, the Court indicated a strict adherence to principles of Parliamentary sovereignty and protection of human rights even in the face of grave national security risks that could result from its decision.

It is highly appropriate that Lord Hope quotes the following statement of Lord Bingham in the opening to the decision:

[W]e are entitled to be proud that even in that extreme national emergency there was one voice—eloquent and courageous—which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom (at para.6, citing The Case of Liversidge v. Anderson : The Rule of Law Amid the Clash of Arms (2009) 43 The Int’l Lawyer 33 at 38).

Lord Hope goes on to recognize the unquestionable and fundamental duty of the judiciary: “Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty” (at para 6).

Ironically, the SCC’s decision in Canada (Prime Minister) v Khadr, 2010 SCC 3, was released the same week as this decision. It may be unfair to compare and contrast the two decisions in a technical-legal sense: the UKSC decision is essentially about the legal overreaching of the executive without Parliamentary oversight. Nonetheless, the politically symbolic significance cannot be overstated. Where the SCC backed down, the UKSC stepped up. Finding a clear human rights violation by the Canadian Government, the SCC decided to remain silent on any remedial order.

The UKSC, on the other hand, quashed an executive order and went on to not even allow the executive the benefit of time through a suspended declaration. In terms of similarities, like Khadr, the UK case also involved foreign affairs (arguably moreso because it involved the UK Government’s obligations, not discretionary policies, as a Member-State of the United Nations).

Background

The UN Framework to Fight Transnational Terrorism Finance

In the late-1990s, the United Nations took a series of steps in response to the rising threat of terrorism (and to actual terrorism, such as the 1998 coordinated US Embassy bombings at Dar-es-Salaam, Tanzania and Nairobi, Kenya; the 2000 bombing of the U.S.S. Cole; and the foiled Y2K bomb plots). Chief among these was a concerted effort to thwart the transnational flow of the financing that backed terrorism. In 1999, the UN General Assembly adopted the International Convention for the Suppression of the Financing of Terrorism requiring each State Party to create criminal offences prohibiting terrorism financing (GA Res.54/109 (1999), art.4).

During the same period, the UN Security Council adopted a series of resolutions obliging all UN Member-States to adopt measures to “[f]reeze without delay the funds and other financial assets or economic resources of” people and groups associated with Al-Qaida, the Taliban, and Usama Bin Laden, as well as other suspected terrorist individuals and organizations listed under the “Consolidated List” (starting with SC Res 1267 (1999) and continuing with resolutions 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008), and 1904 (2009)).

Member-State Responses

In response to the Convention and the Security Council resolutions (and perhaps more importantly, in the wake of the 9/11 attacks), all UN Member-States adopted varying measures and submitted reports to the Security Council’s “Al-Qaida and Taliban Sanctions Committee.” Canada, for example, introduced amendments to the Criminal Code, RSC 1985, c C-46, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, through the Anti-terrorism Act, SC 2001, c 41, to introduce criminal sanctions for various terrorism finance offences. Canada also created the United Nations Al-Qaida and Taliban Regulations (SOR/99-444) and the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism for a legal mechanism to freeze accounts and assets of suspected terrorists or terrorism financiers.

UK Terrorism Acts and Orders

The United Kingdom adopted the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008, among others, to fulfil its obligations under the International Convention for the Suppression of the Financing of Terrorism. To facilitate financing freezes, the UK established the Terrorism (United Nations Measures) Order 2001 (SI 2001/3365 as am. by SI 2006/2657 and SI 2009/1747) (the Terrorism Order) and the Al-Qa’ida and Taliban (United Nations Measures) Order 2002 (SI 2002/111 as am. by SI 2006/2952) (the AQT Order).

The two Orders in Council gave Her Majesty’s Treasury (“HMT”) the ability to “designate” a person under the Order and to restrict all others from “dealing with” the designated person (catching “every conceivable kind of transaction in respect of funds and economic resources” (at para 26)). The Terrorism Order and the AQT Order created a rigorous and relentless regime of financial freezes that affected all aspects of a designated person’s life, restricting even the financial dealings of his or her family members (e.g. a freeze on social security benefits to the spouse of a designated person).

The Facts

In unrelated communications during 2005-2007, HMT informed the appellants Hani El Sayed Sabaei Youssef; Mohammed al-Ghabra; and Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (formerly known as Mohammed Tunveer Ahmed) that they had been declared “designated persons” under the Terrorism Order.

Ahmed, Khan, and Marteen had never been charged or detained for any terrorism-related offences. HMT informed them that it had “reasonable suspicion” that they were, or “may be,” facilitating acts of terrorism based on evidence obtained from an Al-Qa’ida operative. Both Youssef and al-Ghabra were deemed designated persons by the HMT because they were listed on the Consolidated List of the UNSC Al-Qaida and Taliban Sanctions Committee. Al-Ghabra had links with previously convicted UK terrorists and had been under MI5 survellance for some time. Youssef was an Egyptian lawyer with sympathetic views towards Islamists. He had been arrested on terrorism charges in 1998 but the charges had been dropped and he had been released shortly thereafter. (See [2010] UKSC 2 at paras 32-36; “The five alleged terrorists,” Telegraph.co.uk (27 Jan 2010)).

Judicial History

Ahmed, Khan, Marteen, and al-Ghabra commenced judicial review proceedings in the UK Administrative Court to have the directions against them set aside. The judge at first instance quashed both Orders in Council, holding them to be ultra vires (see [2008] EWHC 869 (Admin)). The Court of Appeal allowed the HMT’s appeal in part: instead of holding the entire Orders ultra vires, the Court of Appeal quashed the directions issued against the four individuals (see [2008] 3 All ER 361). In Youssef’s case, the court at first instance also found the Orders to be ultra vires but declined to quash the Orders (see [2009] EWHC 1677 (Admin)). Youssef appealed directly to the House of Lords and the two cases were heard together at the UK Supreme Court.

UKSC Reasoning

The seven UK Supreme Court Lords delivered five separate judgments in the case with Lord Hope delivering the lead judgment. In terms of the result, the seven judges were unanimous that the Terrorism Order was ultra vires in its entirety and held by a majority of six-to-one that article 3(1)(b) of the AQT Order was ultra vires.

From the very beginning of his decision, Lord Hope took a severe stance towards the laws in question, variously describing the measures as “drastic,” “oppressive,” and “draconian.” He noted the grave violations of human rights that these measures entail, e.g., severe limits on access to basic necessities and effectively restricting the freedom of movement of designated persons and making them “prisoners of the state.”

The primary legislation from which the HMT derives its authority is s.1(1) of the United Nations Act 1946, which reads:

If … [the UN] Security Council … [calls upon the] United Kingdom to apply any measures … , His Majesty may by Order in Council make such provision as appears to Him necessary or expedient … , including … provision for the apprehension, trial and punishment of persons offending against the Order.

Lord Hope noted that the section leaves the question of whether a provision is “necessary or expedient” to the executive (at para.43) but retorted that “[i]f 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” (at para.45). Where Parliament confers a general power or authority, such authority cannot be used contrary to the basic principles of law or in a manner that adversely affects the legal rights of citizens unless this is expressly stated in the conferring statute.

Tracing the legislative history of the 1946 Act, he concluded that Parliament did not intend to give “unlimited” discretion to the executive through s.1(1), especially where it was being used for coercive measures against citizens. Necessity and expediency require that any Order made under s.1(1) can only be legitimate where it does not interfere with fundamental human rights. Further, the Order has to remain in strict proximity to the UN Security Council resolution which requires the measure and cannot have greater impact “than is necessary and unavoidable to give effect” to the resolution.

The Terrorism Order relied on a “reasonable suspicion” test to determine whether an individual could be designated under it. Lord Hope found this mechanism to go beyond the purview of UNSC res.1373(2001). The UNSCR 1373(2001) refers to individuals “who commit, or attempt to commit, terrorist acts” and does not go far enough in allowing restrictions on individuals based on reasonable suspicion. Thus the Court found that the Terrorism Order was ultra vires the executive and that such a measure could not be taken without proper Parliamentary scrutiny.

The AQT Order, on the other hand, does not rely on a reasonable suspicion test to designate individuals under it. This was the crux of the dissent of Lord Brown, who found that the Order “faithfully implements” the UNSCRs and ought to be upheld in its entirety. The issue in the AQT Order was its reliance, through art.3(1)(b), on the UN Consolidated List procedure, which does not provide for an appeal or judicial review procedure. Having no means to challenge the decision to be listed as terrorists and no access to a hearing before an impartial and independent judge meant that art.3(1)(b) must be quashed.

Administrative Law, Not Human Rights

Besides quashing the particular Orders, the Court also expanded its reasoning to clarify that the decision would apply to other similar Orders had they been before the Court as well. The fundamental point of the UKSC decision is the principle of legality that “fundamental rights may not be overridden by [a statute conferring administrative or executive powers through] general words” (at para 76).

It is important to stress that the UKSC decision is couched in administrative law. It is clear from the decision that, despite the grave violations of human rights, it notes that the UKSC would uphold the same law if it is implemented through primary legislation. (Of course, the Terrorism Acts provide for greater opportunities for human rights violations.) Although Lord Brown dissented on one point, his reliance on Lord Hoffman’s statement (what Lord Brown dubbed “the Simms principle”) fully articulates the UKSC’s position:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… . But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual (at para. 193, citing R. v. Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131).