HM Treasury v Ahmed & Ors

[2010] UKSC 5
On appeal from: [2008] EWCA Civ 1187

JUDGMENT

Her Majesty's Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants)

Her Majesty's Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant)

R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty's Treasury (Appellant)

(No. 2)

before

Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Mance

JUDGMENT GIVEN ON

4 February 2010

Heard on 28 January 2010

Appellants A, K, and M Raza Husain (Instructed by Birnberg Peirce and Partners)		Respondent Jonathan Swift Andrew O'Connor (Instructed by Treasury Solicitor)
Appellant G Alex Bailin (Instructed by Tuckers)		Respondent HAY Raza Husain (Instructed by Birnberg Peirce and Partners)

LORD PHILLIPS, with whom Lord Rodger, Lord Walker, Lady Hale, Lord Brown and Lord Mance agree.

When judgment was given on 27 January 2010 ([2010] UKSC 2) an issue arose in respect of the order that the court proposed to make. The court has held that the TO and article 3(1)(b) of the AQO were ultra vires. This means that the restrictions imposed on individuals pursuant to these Orders have been imposed without authority and are of no effect in law. Because this has not been appreciated there has been compliance with these restrictions, not least by third parties, including banks holding funds of those purportedly affected by the Orders. Thus the Orders have, in practice, achieved the effect that the Treasury intended when making them.

The Treasury is anxious that this state of affairs should persist until the invalid restrictions can be replaced by restrictions that have the force of law. To this end Mr Swift has submitted that the court should suspend the operation of the orders that it proposes to make declaring the TO and article 3(1)(b) of the AQO ultra vires and quashing them, in the case of the former for a period of 8 weeks to 25 March 2010 and in the case of the latter for a period of 6 weeks to 11 March 2010.

This submission is a variation and extension of a limited suspension to the operation of its orders that Lord Hope had proposed that the court should make in paragraph 84 of his judgment. I had concurred in this proposal, but having considered the matter further I have concluded that it would not be appropriate to suspend any part of the court's order.

Mr Swift submitted that this court has power to suspend the effect of any order that it makes. Counsel for the appellants conceded that this was correct and that concession was rightly made. The problem with a suspension in this case is, however, that the court's order, whenever it is made, will not alter the position in law. It will declare what that position is. It is true that it will also quash the TO and part of the AQO, but these are provisions that…

JUDGMENT