28 March 2012
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The new UK Supreme Court has today quashed the Terrorism (United Nations Measures) Order 2006 [TO] and a key provision in the Al-Qaida and Taliban (United Nations Measures) Order 2006 [AQO]. The measures, which implement UN Security Council Resolutions, were adopted by the UK government pursuant to s.1 of the United Nations Act 1946 as “Orders in Council”, by-passing parliamentary scrutiny using arcane powers.
The relevant UN Resolutions require member states to freeze the assets of those allegedly involved in international terrorism. The Security Council maintains a list of more than 500 groups and individuals persons whose assets member states are obliged to freeze (“the Consolidated List”). Those included in the Consolidated List are denied the right to challenge the decision before an independent and impartial judge.
The case was initially bought by lawyers for five men subjected to the asset-freeze and known only as A,K,M,Q & G. The High Court had already quashed the two Orders in April 2008, but the judgment was later overturned in the Court of Appeal.
In the first case to be heard by Britain’s new Supreme Court, the ‘LawLords’ held unanimously that the TO should be quashed as ultra vires s.1(1) of the 1946 UN Act. The Supreme Court also held by a majority of six to one that Article 3(1)(b) of the AQO must also be quashed as ultra vires. What this means is that the two orders were found to have exceeded the powers conferred on the government by the 1946 UN Act.
In the words of the Court: “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”. This assessment was reached on the basis that the TO allowed asset freezing on grounds of mere ‘reasonable suspicion’, while the AQO entirely deprived those named in the Consolidated List of any right of access to a court.
In the words of Lord Phillips, “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”.
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