In our security-conscious modern world, it was perhaps unsurprising that the first judgments to be handed down by the new UK Supreme Court concerned anti-terrorism measures. One of these was in Ahmed et al v. HM Treasury [2010] UKSC 2, [2010] 2 W.L.R. 378, where the Court was faced with difficult questions concerning secondary legislation adopted to give effect to certain obligations of the UK under Article 41 of the United Nations (“UN”) Charter. Section 1(1) of the United Nations Act 1946 empowers the executive, without prior Parliamentary scrutiny or approval, to make “such provision as appears necessary or expedient” for the effective application of UN decisions. The Terrorism (United Nations Measures) Order 2006 (S.I. 2006/2657) (“TO”) was thus adopted to give effect to Security Council (“UNSC”) Resolution 1373, which required UN member States to freeze the assets of persons involved in the commission of terrorist acts. Meanwhile, the Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006/2952) (“AQO”) implemented a series of Resolutions requiring the freezing of the assets of specific persons associated with Al Qaida and the Taliban.

Article 4 TO set the threshold: the Treasury must have “reasonable grounds for suspecting that the individual is or may be a person who committed, attempted to commit, participated in or facilitated the commission of acts of terrorism”. By contrast, Article 3 AQO transposed the UN list on to the domestic level automatically, without reference to individual designation by Treasury decisions or to the availability of judicial review. Both Orders were quashed by Collins J. at first instance (A, K, M, Q & G v. HM Treasury [2008] EWHC 869, [2008] 3 All E.R. 361) on the ground that they were ultra vires the 1946 Act. On appeal, excision of the words “or may be” from Article 4 TO was held to be sufficient to allow the Order to stand (Sedley L.J. dissenting). As to the AQO, it was held that, notwithstanding its origin in a UNSC Resolution, listed persons could still seek review of the basis for their designation before the UK Courts, in spite of the absence of any specific provision in the AQO to that effect (A, K, M, Q & G v. HM Treasury [2008] EWCA Civ 1187, [2009] 3 W.L.R. 25). Under both Orders, the Court of Appeal was willing to countenance the provision by the court of ad hoc procedural safeguards (such as the appointment of special advocates) to ensure that the applicant's case could receive a fair hearing.

The Supreme Court, sitting as a seven-judge panel, ruled that both Orders were ultra vires, albeit on slightly different grounds (Lord Brown dissenting on the AQO). The common starting point was that there was no indication that Parliament had anticipated the adoption of such draconian measures under the 1946 Act (Lords Hope (with whom Lord Walker and Lady Hale agreed) ([61]), Phillips ([145]–[155]) and Mance ([239]–[241])). On the contrary, the “Simms principle” (R v. Home Secretary ex parte Simms [1999] 1 A.C. 69) dictated that Parliament could only depart from fundamental rights through express and unambiguous language. When the measures required by a Resolution of the UNSC affect the individual, the Court thus held that there were limits to their adoption by means of Orders in Council under the general enabling power of the 1946 Act.

A first limit related to the executive's discretion in determining what is “necessary or expedient” under section 1(1). The Court held the TO to be ultra vires on the ground that, by introducing a “reasonable suspicion” test, it went beyond the requirements of Resolution 1373 (Lord Rodger disagreed on this point) and, hence, the scope of the powers provided for in the 1946 Act. Only Parliament could properly decide to impose more stringent measures upon individuals than provided for in a UN measure (upon which Lord Rodger agreed). However, their Lordships differed on exactly what might have been acceptable under the 1946 Act, showing different approaches to the purpose and scope of the UNSC Resolutions. Lord Brown would have allowed “reasonable grounds for believing” (at [199]) and Lord Mance suggested proof on the balance of probabilities (at [230]). Lord Rodger even accepted “reasonable suspicion” as “expedient” within section 1(1) of the 1946 Act, albeit only on a temporary basis pending rapid replacement by an Act of Parliament ([176]). Lord Phillips suggested that the purpose of the Resolution extended only to freezing the assets of “criminals” and not mere suspects ([129]–[143]), an argument rejected by Lord Rodger as an impractical “approach which would emasculate the international system that the Security Council wishes to create” ([170]).

A second limit was held to be reached when, although the executive measure fell within the scope of a UNSC Resolution, the interference with fundamental rights was such that it could only be authorised by the democratically elected Parliament. Thus Article 3(1)(b) of the AQO was quashed because, although faithfully reproducing the underlying UN decision, it provided listed individuals (in the absence of any effective and independent review at UN level) with no means by which to contest their designation. The Court clarified that, although Article 103 of the UN Charter displaced the applicants' ECHR rights and thus prevented any claim that the AQO was unlawful under the Human Rights Act, the right of access to a court had long been recognised in the common law as fundamental to the rule of law, and could only be overridden by clear Parliamentary wording.

What started out as a relatively narrow point – the construction of section 1(1) of the United Nations Act 1946 – thus turned into a dispute of major constitutional significance. The majority must be applauded for reasserting the court's function of preventing abuses of executive authority. The powers of the 1946 Act are to be used for the sole purpose of fulfilling the UK's obligations under the Charter; the latter cannot serve to shift the balance of powers (further) to the executive's advantage, see, e.g., Lord Hope ([48]–[53]) and, eventually, Lord Rodger ([174], although cf. [170], [173]).

Most importantly, restrictions upon the rights of citizens were made conditional upon the explicit seal of the democratic process. Lord Brown, dissenting in part, identified (at [195]) a “clash of conflicting principles”: the UK's UN Charter obligations, and the Simms principle that human rights infractions need to be explicitly sanctioned by Parliament. Lord Brown concluded that, while the TO was ultra vires the 1946 Act, the AQO was not because it was categorically mandated by a UNSC Resolution. Lord Brown thus resolved the conflict by giving precedence to the UK's duty under Article 25 of the UN Charter to carry out UNSC Resolutions. His approach would have meant that, in the presence of a clear UN mandate, the principles governing the separation of powers and the protection of human rights would have had to bend before the need to fulfil UN Charter obligations: a conclusion which chimes with the reasoning of the EU's Court of First Instance, but not that of its Court of Justice, in Kadi (Case T-315/01, [2005] E.C.R. II-3353 and Joined Cases C-402 and 415/05 P, [2008] E.C.R. I-6351: see, respectively, Garde [2006] C.L.J. 281 and Johnston [2009] C.L.J. 1). The majority rejected such a conclusion: restrictions upon individual rights always need Parliament's express consent. While Parliament can choose to legislate contrary to fundamental rights, it can also decide that certain measures required by a UNSC Resolution are too onerous to be given effect in the UK. Thus, both dualism with regard to international law and domestic judicial scrutiny of the executive remain strong.

The Treasury reacted to the Supreme Court's judgment by publishing the Draft Terrorist Asset-Freezing Bill 2010 and by securing the rapid passage of the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. The latter deems all of the impugned Orders in Council under the 1946 Act to have been validly adopted (section 1(2)) and thus retains in force all directions made under those Orders (section 1(3)(a)); the Act will expire on 31 December 2010. The Bill, meanwhile, provides a statutory basis for the UK's asset freezing regime. Particularly noteworthy in the Bill are clauses 2 (making the threshold for designation “reasonable grounds for suspecting that a person is or has been involved in terrorist activity”) and 22 (providing for judicial review of any Treasury decision under the Act). The victory of the successful applicants in Ahmed's case has proved extremely short-lived (see also section 2(2) of the 2010 Act): a further challenge on a ground other than the validity of those Orders must be brought to challenge their designation (section 2(4)). As a constitutional matter, Parliament's authority has, formally, been vindicated, although deeper analysis of the Bill will be required before it can be concluded that this vindication has secured significantly improved protection for individuals' fundamental rights.