The aim of this essay is to critically comment on the Court’s decision, legal doctrine adopted and it’s reasoning in the abovementioned case. The essay also seeks to assess and comment on the impact of the decision within its social and political context in the United Kingdom and its political interactions with other countries and international treaties.
The case deals with two issues and the facts are as follows. Firstly, between the period of December 2006 to August 2007, the appellants Mohammed al-Ghabra, Mohammed Jabar Ahmed, Mohammed Azmir Khan and Michael Marteen (hereinafter referred to as “G”, “A”, “K” and “M”) were informed that HM Treasury (“the Treasury)had named them as designated persons under article 4 of the Terrorism(United Nations Measures)Order 2006(“the TO”). G 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 informed that due to the sensitivity of the information on which the decision was made, it was not possible to give him further details. A, K and M also received almost identical letters from the Treasury. The effect of this direction was to prohibit them from dealing with their funds and economic resources and to prevent anyone notified of the freeze from dealing financial services with them for their benefit.
Secondly, a few days after G had been informed that he had been designated under the TO, he received a letter from the Foreign and Commonwealth Office stating that the Sanctions Committee of the Security Council of the United Nations (hereinafter referred to as 1267 Committee) had added his name to its Consolidated List. The effect of this that he was subject to freezing of his funds , assets and economic resources and this was binding on all UN member states with immediate effect. At that time, it was not stated what domestic law this measure was imposed under. Only a year later was he told that he was a designated person under the Al-Qaida and Taliban (United Nations Measures) Order 2006 (the “AQO”). In September 2005, Hani El Sayed Sabaei Youssef (hereinafter referred to as “HAY”) was informed that he had been added to the Consolidated List by the 1267 committee as a designated person under the AQO.
The TO and AQO were made by the Treasury in supposed exercise of the power to make Orders in Council which were conferred on them by Section 1 of the United Nations Act 1946 (“the 1946 Act”).
The Court’s Decision
It was held by the House of Lords that article 4 of the TO was ultra vires and allowed the appeals of A,K,M and G. It allowed G’s appeal with regard to the AQO to the extent of declaring that article 3(1)(b) of the Order was ultra vires. For HAY, it set aside the Court of Appeal’s declaration that the AQO as a whole was ultra vires and substituted with the Order made in G’s case. The order for the AQO was suspended for a month from the date of judgment to give the Treasury time to consider the steps they would need to take as a result of the judgment.
There were several issues that the Court considered. Was the Treasury empowered by Section 1 of the 1946 Act to introduce an asset freezing regime by means of an Order in Council? The court had to consider if the order was ultra vires by virtue of the fact that (a) illegality because it was passed without the appropriate parliamentary approval, (b)lack of legal certainty and proportionality and (3) the absence of procedures that allowed designated persons t o challenge the decision.
With regard to both the AQO and TO, the Court had to consider if they were unlawful because they were incompatible with article 8 of European Convention on Human Rights and article 1 of Protocol 1, by virtue of section 6 of the Human Rights Act 1998.
Legal Doctrine & Reasoning
As set out by Lord Diplock in the landmark case, Council of Civil Service Unions v Minister for the Civil Service, judicial review provides the means by which judicial control of administrative action is exercised, and the Court considers illegality, irrationality, procedural impropriety and proportionality.
In this case, when considering the legality of the Treasury’s decision, the Court had to decide if the Treasury as an executive body had the power to give effect to decisions of the Security Council. Could the executive create Orders that affect the fundamental human rights of individuals in the country, without being subject to parliamentary scrutiny? Furthermore, when can the Court strike down delegated legislation?
As mentioned in the facts of the case, both the TO and AQO had serious repercussions on the lives of not just the individuals but their spouses and families as well. Lord Sedley noted in the Court of Appeal that they were effectively ‘prisoners of the state’, being deprived of any resources whatsoever. Lord Hope in this case said that the impact on normal family was remorseless and could be devastating. Hence, the Treasury had overstepped its bounds when making the freeze order. Adhering to the principle set out in R v Secretary of State for Home Department, Ex p Simms, deciding what is necessary and expedient could not be left to the ‘uncontrolled judgment’ of the executive. The Treasury had exceeded its powers under S1(1) of the 1946 Act when creating the reasonable suspicion test under article 4 of the TO. As Lord Hope so succinctly pointed out, this was a ‘clear example of an attempt to adversely affect the basic rights of the citizen’.
This leads to the conclusion that the Court could and did in effect quash the delegated legislation because it was ultra vires S1(1) of the 1946 Act. The Court has the power to strike down delegated legislation when it is ultra vires the parent Act, clearly overstepping the legal power that was entrusted to it. Furthermore, in this case, the Court was implying that the more the legislation interfered with the fundamental human rights of an individual, the closer the judicial scrutiny would be applied. Especially since in this case, Parliament had failed to accord the legislation the appropriate scrutiny.
The Court also discussed the importance of Parliamentary scrutiny over delegated legislation. Lord Hope mentioned the four procedures available for scrutiny of delegated legislation. He went on to note that the legislation in question was not subject to the procedure of consideration by the Merits of Statutory Instruments Committee, whose job it was to determine if there was an issue of political or legal interest for the House to consider.
Further on in his judgment, his Lordship asked the pertinent question, if it was acceptable that the exercise of judgment in matters of this kind could be left exclusively to the executive, without any form of Parliamentary scrutiny. This question sums up the main issue the Lordships were deciding on with regard to delegated legislation.
Another issue the Court considered was the issue of procedural impropriety and the concept of natural justice. The AQO did not provide any means of recourse to HAY and G to challenge the decision against them, denying them their rights of access to a Court and reasons for their designations under the two orders. This raised two main issues, firstly the right to a fair hearing, and secondly, if there is any duty on the decision-maker to give reasons. Lord Hope referred to Zinn J’s statement in Abdelrazik v The Minister of Foreign Affairs, that there is nothing in the listing or de-listing procedure that recognises the principles of natural justice or that provides for basic procedural fairness. The right to a fair hearing is a common law standard that the court can infer if Parliament has not laid down the statutory procedural rules, the right to a fair hearing being a rule of natural justice. However, since G and HAY had been designated by the 1267 Committee, there was no point in seeking judicial review of this decision. The hands of the Court were tied in this area, and accordingly they could only hold article 3(1)(b) of the AQO ultra vires section 1 of the 1946 Act. There was a small discussion regarding giving reasons for the TO order and AQO. Under the listing by the AQO, one would have no idea who made the decision, or what evidence was used to come to the decision.
However currently, there is no common law duty to give reasons although the Court has generally been moving in that direction in recent years. The Court in this case did not comment too much on the lack of reason giving but focused instead on the lack of access to judicial review and a fair hearing. Given the sensitive nature of the information and surrounding evidence, one can see why the Court has been cautious in this area. Nonetheless the Court held that the Treasury had no powers to deny the men the opportunity to bring a judicial review challenge.
Another major issue that the court had to consider was The HRA and ECHR and its balance and hierarchy with international legislation such as the United Nations Charter and United Nations Security Council Regulation. While making their decision they also had to consider proportionality and Human Rights. With regard to the first issue, it was held that the United Nations Charter took precedence over the other pieces of legislation. The Court took its guidance from R (Al-Jedda) v Secretary of State for Defence. It was held in that case that by virtue of article 103 of the Charter, the obligation under article 25 was to prevail over any other international agreement, including the Convention. In Al-Jedda, Lord Bingham said that the only way to reconcile the express authority of the Security Council and a fundamental human right was to ensure that the detainee’s rights under article 5 were not infringed to a greater extent. However, Lord Hope distinguished the present case in a way, by stating that the issues at hand dealt with domestic law, leaving the court open to make a landmark decision in this area, declaring the Orders ultra vires.
With regard to the second issue of proportionality, it is for the courts to consider if the legislative interference with rights is proportionate when interpreting legislation in a manner that is compatible with the ECHR.
Social & Political Context
The Court was faced with a difficult task in this case. There was a clear tension regarding the relationship between Parliament, the executive and about judicial control over the power of the executive. Furthermore, the Court had to take into consideration the United Kingdom’s commitment to the United Nations Charter and European Convention on Human Rights. It seems to have tread neatly in this area, managing to distinguish itself from the judgements in both Al-Jeddah and Kadi v Council of the European Union. In doing so, it managed to untangle itself somewhat, from the pressures of both the Charter and the Convention, to make a landmark ruling for domestic law in the UK. It is clear that the Court was most concerned about the fundamental rights of the individual and the power of the executive. In Kadi, the ECJ had no problem with article 103 of the charter as the institutions of the European Community are not parties to it, whereas the UK has a clear and strong commitment to the Charter.
With the threat of terrorism a constant fear at the back of many a mind in the UK, individuals want to be protected from such threats, but at the same time be sure that their fundamental rights are protected. This judgment may come as a relief to those who feared that rights would be compromised on account of paranoia that seems to have taken over the government.
Implications on Law, Policy and Administration
Lord Brown’s raised in his dissenting judgment, the issue of national security and the UK’s commitment to the Charter. These are equally important issues and a balance must be sort. It is clear that the judiciary is leaving this to Parliament to decide, by giving the Treasury time to think of steps to respond to the ruling. This shows that the Court has understood that the judgment could be viewed as a move from the usual unwillingness to participate in issues of national security as in the GCHQ case. The fact that Lord Phillips felt it necessary to highlight in his judgment that ‘nobody should conclude that the result constitutes judicial interference with the will of Parliament’ goes to show that the judiciary is aware of the implications of the judgment, and that it has indeed taken a large stride away from the reserve it has shown in past years.
This case has also highlighted the struggle for Parliament, the executive and the Judiciary to find the balance and ‘appease’ its obligations to both the Charter and the Convention. The facts of the case may hint of a ‘retreat from the principles and obligations of the HRA’ by the executive, and the decision shows the Court in the light as a bulwark of the individual’s fundamental rights, enforcing human rights as Parliament intended them to do.
The decision has been a wakeup call to Parliament, especially with regard to the parliamentary oversight and scrutiny of legislation that deals with fundamental rights. It has fuelled debates in parliament following the judgment; Ministers are concerned about sweeping such legislation away to avoid checks and balances on human rights.
The Supreme Court’s judgment in this case might cause the Government to be more careful when policy-making in the future, as ministers are appalled at the lack of scrutiny and so-called ‘arrogance’ of the government.
In conclusion, the ruling in this case is a landmark one, and serves as an indicator of precisely where the judiciary, executive and Parliament stand in terms of fundamental rights of the individual and the powers of the executive. The Court can strike down delegated legislation on the grounds of illegality when the executive has made ultra vires Orders that infringe on the fundamental rights of individuals. It has also served to highlight the United Kingdom’s position in terms of its obligations to the international community and European Union.
Council of Civil Service Unions v Minister for the Civil Service  AC 374
R v Secretary of State for Home Department, Ex p Simms  2 AC 115, 131
Abdelrazik v The Minister of Foreign Affairs  FC 580, para 51
Doody v Secretary of State for Home Department  1 AC 531
R v Civil Service Appeal Board ex p. Cunningham  4 ALL ER 310
Guardian News and Media Ltd & Ors in HM Treasury v Ahmed & Ors  2 W.L.R. 325
R (Al-Jedda) v Secretary of State for Defence  AC 332
Kadi v Council of the European Union (Joined cases C-402/05P and C-415/05P)  AC 1225
The Human Rights Act and anti-terrorism in the UK: one great leap forward by Parliament, but are the Courts able to slow the steady retreat that has followed? David McKeever, Public Law 2010
Textbook on Administrative Law, 6th Edition, Peter Leyland & Gordon Anthony, Oxford University Press
Hansard, 8th February 2010, Column 648
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