Law to change on terrorist asset freezing after critical Supreme Court judgment
3 November 2010
On 1 November 2010 the Terrorist Asset-Freezing etc. Bill received its third reading in the House of Lords. The bill, which started in the Lords, must now be passed by the Commons before receiving Royal Assent.
The Bill represents the coalition government’s response to the Supreme Court’s decision in HM Treasury v Ahmed (incidentally, the first appeal to have been heard in the Supreme Court) concerning the lawfulness of measures enabling the Treasury to freeze the assets of, amongst others, a person whom it has reasonable grounds for suspecting is or may be a person who facilitates the commission of acts of terrorism.
The Supreme Court held that the use of the Order in Council procedure, whereby the measure is simply laid before Parliament, without any opportunity for scrutiny or debate, was outside the powers which had been granted to the executive under section 1 of the United Nations Act 1946. The Supreme Court also described in strong terms the effect on the individual of such measures – “drastic”, “oppressive” and having the effect that “designated persons are effectively prisoners of the state.”
Following the Supreme Court’s decision, emergency legislation was rushed through Parliament, effectively preserving the lawfulness of the steps taken under the quashed orders until 31 December 2010. This was to give adequate time for the passage of primary legislation which, Lord Hope anticipated, would remedy the breaches of fundamental law which rendered the Orders ‘ultra vires’ or outside the lawful power of the executive.
The response to the Bill currently before Parliament has not been wholly positive. A Joint Report by Liberty and JUSTICE criticises the Bill as continuing to fail to respect fundamental rights and freedoms and the due process of law. The Joint Report proposes a number of amendments to address this situation, the most important of which is to take the decision on whether to designate an individual as being subject to asset freezing orders away from the executive and place it in the hands of the courts. It is argued that the current proposal, whereby the Treasury would still take the decision to freeze assets but would give a right of appeal to the High Court, is flawed in so far as it puts the onus on the individual to challenge the punishment meted out to him without charge or trial, rather than requiring that a case be proved against him. The Joint Report also points to the unhappy precedent of the control orders regime when it comes to the effectiveness and legality of trials held behind closed doors in which the individual concerned has limited ability to challenge the evidence against him.
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- Previous posts on terrorism
- Supporting terrorism and the criminal law
- UN asset-freezing scheme represents an ‘atrocious lack’ of due process – Cian Murphy, guardian.co.uk