Her Majesty’s Treasury v Mohammed Jabar Ahmed and others (FC)

General statutory words do not authorise the executive to override fundamental rights. Clear Parliamentary authority is required, particularly where delegated legislation imposes severe and indefinite restrictions without effective judicial control.

Section 1 of the United Nations Act 1946 did not authorise an indefinite asset freeze based only on reasonable suspicion. Nor did it authorise automatic freezing by reference to a United Nations listing which the affected person could not effectively challenge before a court. The relevant provisions of both Orders were therefore ultra vires.

The Treasury designated several individuals under the Terrorism (United Nations Measures) Order 2006 and treated two individuals as designated under the Al-Qaida and Taliban (United Nations Measures) Order 2006 because they appeared on the United Nations Consolidated List. The Orders imposed indefinite and highly restrictive asset-freezing regimes.

Collins J quashed both Orders: [2008] EWHC 869 (Admin). The Court of Appeal allowed the Treasury’s appeal in part, but quashed the directions under the Terrorism Order: [2008] EWCA Civ 1187. In separate proceedings, Owen J declared the Al-Qaida Order unlawful so far as it applied to HAY: [2009] EWHC 1677 (Admin).

The central questions were whether section 1 of the United Nations Act 1946 authorised the asset-freezing regimes and whether the absence of an effective means of challenging a United Nations listing made the Al-Qaida Order ultra vires.

1. Disposition. The appeals of A, K, M and G were allowed. The Terrorism (United Nations Measures) Order 2006 was declared ultra vires and quashed. By a majority of six to one, article 3(1)(b) of the Al-Qaida and Taliban (United Nations Measures) Order 2006 was declared ultra vires. The Treasury’s appeal concerning HAY succeeded only to the extent that the wider declaration against the whole Al-Qaida Order was replaced by a declaration confined to article 3(1)(b). The orders concerning the Al-Qaida Order were suspended for one month.
2. Lord Hope, with whom Lord Walker and Lady Hale agreed, held that Parliament does not surrender legislative power to the executive beyond what the statutory words necessarily require. Under the principle of legality, a power expressed in general terms does not authorise action adversely affecting fundamental rights unless Parliament has made that intention clear. Section 1 of the United Nations Act 1946 permitted provisions necessary or expedient to implement Security Council measures, but did not authorise greater interference with basic rights than was necessary and unavoidable.
3. The Terrorism Order imposed a comprehensive and potentially indefinite freeze where the Treasury had only reasonable grounds for suspicion. Security Council Resolution 1373 did not prescribe that threshold. The threshold materially expanded the class exposed to draconian restrictions. Clear Parliamentary authority was required. Lord Phillips and Lord Mance also concluded that the Order substituted a materially wider measure for the one mandated by the Resolution. Lord Rodger agreed that permanent legislation directly affecting basic domestic rights required Parliamentary determination. The Order was therefore beyond section 1.
4. Article 3(1)(b) of the Al-Qaida Order automatically subjected persons listed by the United Nations Sanctions Committee to the freezing regime. The listing and de-listing procedures provided no effective judicial remedy and no reliable means of testing the underlying allegation of association with Al-Qaida or the Taliban. General words in section 1 did not authorise such grave and indefinite interference with property and personal life without judicial recourse. Lord Brown dissented on this issue. He considered that the Al-Qaida Order faithfully implemented an unambiguous Security Council requirement and was authorised by section 1.
5. The court declined to depart from R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58. For the time being, obligations under the United Nations Charter prevailed over conflicting Convention obligations. The appellants therefore could not establish unlawfulness merely through section 6 of the Human Rights Act 1998. The Orders nevertheless remained subject to the fundamental rights protected by domestic common law and to the statutory limits of section 1.

1. United Kingdom Supreme Court: The individual appellants’ appeals were allowed. The Terrorism Order was quashed and article 3(1)(b) of the Al-Qaida Order was declared ultra vires. The Treasury’s appeal in HAY’s case was allowed only to substitute the narrower declaration.
2. Court of Appeal: In [2008] EWCA Civ 1187, the Treasury’s appeal was allowed in part. The court upheld the Orders subject to severance of the words “or may be” from the Terrorism Order, and quashed the directions made under that formulation.
3. Administrative Court: Collins J held both Orders ultra vires and quashed them: [2008] EWHC 869 (Admin).
4. Administrative Court in HAY’s proceedings: Owen J declared the Al-Qaida Order unlawful so far as it applied to HAY: [2009] EWHC 1677 (Admin).