Hilary Term [2010] UKSC 2 On appeal from: [2008] EWCA Civ 1187 JUDGMENT Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants) Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant) R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant) before Lord Phillips, President Lord Hope, Deputy President Lord Rodger Lord Walker Lady Hale Lord Brown Lord Mance JUDGMENT GIVEN ON 27 January 2010 Heard on 5, 6, 7 and 8 October 2009 Appellants A, K and M Respondent Tim Owen QC Jonathan Swift Dan Squires Sir Michael Wood Andrew O’Connor (Instructed by Birnberg (Instructed by Treasury Peirce and Partners) Solicitor) Appellant G Respondent HAY Rabinder Singh QC Raza Husain Richard Hermer QC Dan Squires Alex Bailin (Instructed by Tuckers) (Instructed by Birnberg Peirce and Partners) Intervener (JUSTICE) Michael Fordham QC Shaheed Fatima Iain Steele (Instructed by Clifford Chance LLP) LORD HOPE, with whom Lord Walker and Lady Hale agree 1. On 13 December 2006 the appellant Mohammed al-Ghabra, referred to in these proceedings as “G”, was informed that a direction had been made against him by HM Treasury (“the Treasury”) under article 4 of the Terrorism (United Nations Measures) Order 2006 (SI 2006/2657) (“the TO”) and that he was a designated person for the purposes of that Order. He was told that the direction had been made because the Treasury had reasonable grounds for suspecting that he was, or might be, a person who facilitated the commission of acts of terrorism. He was also told that, in light of the sensitive nature of the information on which the decision had been taken, it was not possible to give him further details and that the effect of the direction was to prohibit him from dealing with his funds and economic resources and to prevent anyone notified of the freeze from making funds, economic resources or financial services available to him or for his benefit. On 2 August 2007 the appellants Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (formerly known as Mohammed Tunveer Ahmed), referred to in these proceedings as “A”, “K” and “M”, received letters in almost identical terms telling them that a direction had been made against them under article 4 of the TO by the Treasury. 2. A few days after G had been told that he had been designated under the TO he received a letter from the Foreign and Commonwealth Office saying the Sanctions Committee of the Security Council of the United Nations (otherwise known as “the 1267 Committee”: see para 18 below) had added his name to its Consolidated List, that this meant that he was subject to a freezing of his funds, assets and economic resources and that these measures were binding on all UN member states with immediate effect and had been implemented in UK law. No mention was made at that stage of the domestic measure under which the restrictions were being imposed on him. But in March 2007 he was told that his listing meant that he was deemed to be a designated person under the Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952) (“the AQO”). 3. In September 2005 Hani El Sayed Sabaei Youssef (or Hani al-Seba’i), referred to in these proceedings as “HAY”, was told that his name had been added to the Consolidated List by the 1267 Committee. As a result he too was deemed to be a designated person under the AQO. His interest in these proceedings is virtually identical to those of G and A, K and M. So, although his case comes before this court on an appeal by the Treasury to which he is the respondent (see paras 35-37, below), I shall refer to him and to G and A, K and M as “the appellants” when I need to refer to all these designated persons collectively. 4. The TO and the AQO were made by the Treasury in purported exercise of the power to make Orders in Council which was conferred on them by section 1 of the United Nations Act 1946 (“the 1946 Act”). In each case the Orders were made to give effect to resolutions of the United Nations Security Council which were designed to suppress and prevent the financing and preparation of acts of terrorism. The Orders provide for the freezing, without limit of time, of the funds, economic resources and Page 2 financial services available to, among others, persons who have been designated. Their freedom of movement is not, in terms, restricted. But the effect of the Orders is to deprive the designated persons of any resources whatsoever. So in practice they have this effect. Persons who have been designated, as Sedley LJ observed in the Court of Appeal, are effectively prisoners of the state: A and others v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25, para 125. Moreover the way the system is administered affects not just those who have been designated. It affects third parties too, including the spouses and other family members of those who have been designated. For them too it is intrusive to a high degree: see R(M) v HM Treasury (Note) [2008] UKHL 26, [2008] 2 All ER 1097. In that case, which concerned the payment of social security benefits to the spouses of listed persons living in the United Kingdom, the House of Lords referred a question to the Court of Justice of the European Communities for a preliminary ruling on the interpretation of Council Regulation (EC) No 881/2002 to which the Al-Qa’ida and Taliban (United Nations Measures) Order 2002 (SI 2002/111) gave effect. 5. The procedure that section 1 lays down enables Orders under it to be made by the executive without any kind of Parliamentary scrutiny. This is in sharp contrast to the scheme for the freezing of assets that has been enacted by Parliament in Part 2 of the Anti-terrorism, Crime and Security Act 2001. Orders made under that Act must be kept under review by the Treasury, are time limited and must be approved by both Houses of Parliament: sections 7, 8 and 10. The systems that have been provided for in the TO and the AQO are far more draconian. Yet they lie wholly outside the scope of Parliamentary scrutiny. This raises fundamental questions about the relationship between Parliament and the executive and about judicial control over the power of the executive. 6. The case brings us face to face with the kind of issue that led to Lord Atkin’s famously powerful protest in Liversidge v Anderson [1942] AC 206, 244 against a construction of a Defence Regulation which had the effect of giving an absolute and uncontrolled power of imprisonment to the minister. In The Case of Liversidge v Anderson : The Rule of Law Amid the Clash of Arms (2009) 43 The International Lawyer 33, 38 Lord Bingham of Cornhill, having traced the history of that judgment, said that – “we 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.” The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Page 3 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. The legislative background: the history 7. To set the scene for the discussion that follows, it is necessary to trace the history of the various measures that have led to the appellants being dealt with in this way. 8. An examination of the legislative background must begin with the Charter of the United Nations. It was signed in San Francisco on 26 June 1945 as the Second World War was coming to an end. It came into force on 24 October 1945. The Preamble records the determination of the United Nations to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Member states bound themselves to maintain international peace and security, to take collective measures for the prevention and removal of threats to the peace and to promote and encourage respect for human rights and for fundamental freedoms: article 1. 9. No principled objections were raised against a strong Security Council. In order to achieve the goal of maintaining peace states were willing to submit to a central organ in a manner that hitherto had been unprecedented: The Charter of the United Nations, A Commentary, ed Bruno Simma, 2nd ed (2002), p 703. Article 2 of the Charter states: “The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.” Article 24 confers the primary responsibility on the Security Council for the maintenance of international peace and security.