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

JUSTICES: Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance

BACKGROUND TO THE APPEALS

On 27 January 2010, the Supreme Court gave judgment that the Terrorism (United Nations Measures) Order 2006 (“the TO”) and Article 3(1)(b) of the Al-Qaida and Taliban (United Nations Measures) Order 2006 (“the AQO”) were beyond the powers conferred by section 1 of the United Nations Act 1946 (“the 1946 Act”) and that they should be quashed.

The Treasury applied for an order that the effect of the Court’s judgment be suspended for periods of: (i) 8 weeks (until 25 March 2010) in respect of the TO; and (ii) 6 weeks (until 11 March 2010) in respect of Article 3(1)(b) of the AQO.

Suspension was sought in order to ensure that funds held by financial institutions on behalf of those individuals subject to asset freezes would not be released pending Parliament introducing new primary legislation to replace the TO and approving secondary legislation to replace Article 3(1)(b) of the AQO.

The Treasury submitted that refusing a suspension would give rise to the risk of those assets being disbursed and used for the purposes of terrorism, with the attendant risk of causing serious and irreparable harm to the national interest of the United Kingdom. It was accepted that: (i) from the date when the Court’s order became effective the TO and the Article 3(1)(b) of the AQO would be rendered void, (ii) suspending the Court’s order would not confer temporary validity on the Orders, (iii) the Treasury might be held to be civilly liable for the consequences of acts undertaken in reliance on the Orders, and (iv) no prosecution would be possible for breach of the Orders.

JUDGMENT

The Supreme Court held by a majority of six to one (Lord Hope dissenting) that the order of the Court quashing the TO and Article 3(1)(b) of the AQO should not be suspended. The Court’s order should be given immediate effect (including in respect of HAY).

REASONS FOR THE JUDGMENT

Lord Phillips (with the agreement of Lord Rodger, Lord Walker, Lady Hale, Lord Brown and Lord Mance) accepted that the Supreme Court possesses the power to suspend the effect of any order that it makes [4].

He noted that the effect of the Court’s judgment was to declare the TO and Article 3(1)(b) of the AQO void, meaning that they were never of any legal effect [4].

Suspending the effect of the Court’s order might tend to give rise to an erroneous impression to the contrary, implying that in the period pending its entry into effect the TO and Article 3(1)(b) of the AQO represent good law with legally binding effect [5].

The Court should not issue an order that would tend to obfuscate the legal effect of its own judgment [8].

Lord Hope, dissenting, agreed that the Supreme Court had the power to suspend the effect of any order it might make [16].

Suspending the effect of the Court’s order would have the practical effect of ensuring that funds subject to asset freezing would not be disbursed by financial institutions to suspected terrorists in the short period pending Parliament legislating to introduce alternate asset freezing measures [21] - [22]. Lord Hope was of the view that the potentially serious and irreversible harm which the release of such funds might cause to the national interest and the prospect of the UK being placed in breach of its international obligations would have justified suspension of the Court’s order [22] and [24].

References in square brackets are to paragraphs in the judgment

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at:

https://www.supremecourt.uk/decided-cases/index.html