Discuss the significance of the Supreme Court’s decision in Ahmed v HM Treasury 2 AC 534
This essay relates to the case of Ahmed v HM Treasury, the first case that was heard by the newly constituted Supreme Court of the United Kingdom, concerning with the freezing of assets of five men who were suspected of involvement in financing terrorism. It can be conceived as the most influential Supreme Court case to date not only because of its constitutional significance but also because of its raising of issues relating to abuse of executive power, personal liberty and international terrorism. The Court’s confronting issue is of the lawfulness of the Terrorism Order 2006(‘the TO’)1 & the Al-Qaida and Taliban Order 2006 (‘the AQO’) art. 3(1)(b)2, to be introduced by the Treasury under the United Nations Act of 19463 with respect to fighting terrorism by freezing the assets of suspected individuals. Further analysis will be given through explanation over the basic facts and the Supreme Court’s decision, then processes to clarify its significance in national and international contexts respectively, the last section will conclude and draw summary. The major viewpoint is that despite the court’s increasing power in prohibiting unlimited executive power, the decision highlights a shift in power back to the legislature as the court has no power to strike down any irreconcilable primary legislation or secondary legislation authorised by primary legislation. The decision also depicts the court’s aggravating effect at international level in deciding which legal regime to apply in a single case through either constitutionalism or pluralist logic.
The Fact and Decision
The TO and the AQO were Orders in Council made under powers conferred by s.1 of the UN Act 1946 without Parliament scrutiny and debate, attempting to give effect to UN Security Council resolutions (‘SCRs’)4 on the freezing of terrorist capitals and monetary resources. Besides, the AQO left designated individuals without any effective and independent judicial remedy. The seven- judge Court quashed both orders on the ground that they were ultra vires s.1 of the 1946 Act5, the underlying reasons for decision can be composed of an assertive declaration of fundamental rights, and the magnitude of the Parliament process, even with the compulsive executive claim in the sense of international combat against terrorism. A series of issues that such decision signified both in national and international context are summarized below.
The Significance at National Level
Under the British Constitution, the first perspective relates to one of the key UK constitution characteristics, known as the separation of powers. Such principle is implemented by dividing state power into three separately constituted branches with specific functions. The separation of the judicial, legislative and executive functions could restrain the abuse of governmental power.
The relationship between these three branches at issue within this case was the extent to which Parliament, the one possesses legislative power, has delegated to the executive the power to legislate and the extent to which Judicial control over the power of the executive6. From the case, the secondary legislation was adopted without evidence that Parliament had assumed the endorsement of such draconian control, the legislative power that the executive possessed was merely listed under section 1(1) of the UN Act 19467, which empowered the Treasury to make ‘such provision as appears necessary’ or ‘expedient’ for the effective implementation of UN resolutions. This led to the question of the executive’s discretion in shaping what is ‘necessary or expedient’. Hence, Judicial stepped in to interfere the interpretation of the regulation. The Court held that by adopting the ‘reasonable suspicion test’, the executive surpassed both the requirements of Resolution 13738 and the power conferred by the 1946 Act, although viewpoints of their Lordships varied in terms of drawing exact boundary of discretion under the resolution. Lord Rodger inferred Lord Mance’s viewpoint that the proof should be on the balance of probabilities9 and accepted ‘reasonable grounds for suspecting’ as ‘expedient’ under s.1 (1) of the 1946 Act10, whereas Lord Hope and Lord Phillips proposed that SCR 1373 was phrased to those ‘criminals’11 and not to those ‘reasonable suspected individuals’12. Lord Brown further referred to certain other Commonwealth countries13 which have given effect to same SCRs and allowed ‘reasonable grounds for believing’14. This is to say, the treasury can only exert the power that the Parliament has delegated to, it can not exceed its authority by hiding under the title of fulfilling the UK’s obligations of the UN Charter, if it does so, the Court would function to prevent such wrong use of power.
Apart from judicial control over the abuse of executive power, the case also depicts the doctrine of parliamentary sovereignty, which is also one of the central elements of current British constitution characteristics. In essence, parliamentary sovereignty concerned with the legislative supremacy of Parliament, which simply means that Parliament legally can pass any law. In Ahmed, there was no evidence at Second Reading in either House that it was considered that the Security Council would find it imperative under art.4115 to command member states to impose constrains against their own citizens during the debates in 1946 Act. The involved issue thus was that the secondary legislation, which has encroached on personal liberty, was adopted entirely outside the scope of Parliamentary scrutiny. This is to say, in order to fulfill the basic domestic values lying at heart of UK democracy, even the executive measure fell within the boundary of SCRs, the invasion with fundamental rights was such that it can merely be empowered by democratically elected Parliament. Therefore, article 3 of AQO, which left listing individuals without any availability of judicial review, was quashed. Lord Hope criticized such procedure as ‘a fatal flaw’ without recognizing ‘the principles of natural justice’ and ‘basic procedure fairness’16. Lord Phillips reached the same conclusion claiming the Order were unlawful by emphasizing the appellants’ right of access to a court17, such right had long been perceived as fundamental right to the British common-law system, and could only be envisaged by thorough Parliament scrutiny. Lord Brown agreed with unlawfulness of TO but not AQO by further referring to ‘the simms principle’18, stating that Parliament can only depart from fundamental rights that it has already unambiguously sanctioned through primary legislation, not through the obscure route of Orders in Council.
Eventually, Parliament implemented the Terrorist Asset-Freezing (Temporary Provisions) Act 201019 to retrospectively validate the asset-freezing orders, permitting a new feasibility for Parliament to scrutinize fulfillment of the SCRs, the ultimate legislative authority is therefore still remained in Parliament to pass new legislation and to rectify the Supreme Court’s interpretation in accomplishing its UN Charter obligations regarding to threats over international peace.
From the case, the majority decision amounts to an explicit reassertion to the executive that, if it intends to interfere with fundamental rights, it must go through the Parliamentary process and be democratically approved.
1 The Terrorism (United Nations Measures) Order 2006 (SI 2006/2657)
2 The Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952) art. 3(1)(b)
3 The United Nations Act 1946 c. 45
4 Security Council Resolution 1373/2001
5 Lord Brown dissenting on the AQO.
6 Ahmed v HM Treasury2 AC 534, Lord Hope (with whom Lord Walker and Lady Hale agreed)(), Lord Phillips ().
7 The United Nations Act 1946 c.45, s.1 (1)
8 Lord Rodger disapproved this point, claiming it is ‘expedient for enabling the UKto fulfil its obligations under para l(c) ofSCR. 1373’
9  2 AC 534, para.230,
10  2 AC 534, para.170,
11 'who commit, or attempt to commit, terroristacts.’  2 AC 534, para.58
12  2 AC 534, para.58 & 129-143
13 'In Australia only when the minister is satisfied thatthe person 'is' involved in terrorism; in Canada only when the Governor General is satisfied thatthere are reasonable grounds to believe this; in New Zealand only if the Prime Minister believes this on reasonable grounds’ Lord Brown,  2 AC 534, para 199.
14  2 AC 534, para.199,
15 Charter of the United Nations Art.41
16 [201OJ 2 AC 534, para.80,
17 [201 OJ 2 AC 534, para.147,
18 R v Secretary of State for the Home Department Ex parte Simms [20001 2 A.C. 115
19 Terrorist Asset-Freezing (Temporary Provisions) Act 2010 c.2