UK SUPREME COURT QUASHES DOMESTIC TERRORIST

C O N F I D E N T I A L SECTION 01 OF 02 LONDON 000221

NOFORN
SIPDIS

E.O. 12958: DECL: 01/28/2020
TAGS: ECON ETTC PTER UN UK
SUBJECT: UK SUPREME COURT QUASHES DOMESTIC TERRORIST
FINANCE REGIME; HMG PREPARING NEW LEGISLATION

REF: LONDON 161 Classified By: Kathleen Doherty for reasons 1.4 b&d 1. (C/NF) Summary. The UK's Supreme Court on January 27 quashed HM Treasury's asset freezing regime. The court's primary complaint was that the regime had been implemented through executive orders rather than through parliamentary scrutiny. HMG was prepared for this contingency, and has drafted formal "fast-track" legislation to be put to parliament soon. Government ministers approved this process ahead of the decision, and HMT officials are briefing opposition leaders on plans. HMT expects debate on some details, but is hopeful for approval of an overall replacement regime. The court granted a temporary stay of its order until it could decide whether to grant a longer stay to allow the government time to present a new regime. The court decision would affect only around 40 domestic designees, with the bulk of the UK designees remaining covered by UN Security Council Resolution (UNSCR) 1267 (Al-Qaeda and Taliban) as enacted under the EU terrorist finance regime, which is unaffected by this order. End summary 2. (U) The new Supreme Court, which took over from the Law Lords (part of the House of Lords) in October 2009, issued its first decision, unanimously, on January 27 on the "G and others" case (a/k/a HM Treasury v Ahmed and Others) challenging HM Treasury's asset freezing regime. The court ruled the UK's special Treasury orders establishing a regime to freeze the assets of terrorist financiers and other supporters of terrorism were improperly imposed and exceeded the government's authority. 3. (C) The court's primary complaint, according to both HMT officials and the press, was that these orders did not go through the democratic vetting process when implemented. Instead, the Terrorism (UN Measures) Order 2006 and the Al Qaeda and Taliban (UN Measures) Order 2006 which implemented the UK's obligations under UNSCR 1373 (other terrorism) and UNSCR 1267 (AQ and Taliban) were made through Orders in Council under the UK's 1946 UN Act. Effectively, HMG used the equivalent of executive orders to carry out its UN obligations, and the Court on January 27 felt that went beyond the powers of the UN Act of 1946. One of the justices, Lord Hope, said the orders were a "clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament." 4. (C/NF) As the Supreme Court is new, it was unsure whether it had the authority to determine whether to grant a stay of their own order, HMT officials told us. The court has suspended its order until it resolves the question, and a decision is not expected for several days. HMT lawyers have requested a stay of a month or longer to get legislation in place. HMT officials and other HMG ministers (the latter all double-hatted as Members of Parliament) are explaining the issue to opposition leaders and impressing the urgency of approving a new regime. HMT officials told us they expect political support across the parties. With parliamentary elections required within the next five months, no party wants to appear soft on terrorism. However, HMT expects debate on details, particularly regarding an appeals process, as the court mentioned that the UN's 1267 order "deprive(s) those named in the Consolidated List of any right of access to a court.." In addition, Lord Hope agreed with one of the plaintiffs, Mohammed al Ghabra, who claimed he had been denied a basic right to legally challenge the asset controls he was under through the 1267 listing. The court also questioned the UK introduction of a "reasonable suspicion" standard in the implementation of the UNSCR 1373 Terrorism Order, in light of the "seriousness of the interferences with fundamental rights." 5. (C/NF) The court's decision, if eventually implemented, would affect 40 or so individuals who are designated only under the UK's domestic Terror Orders. The assets of the roughly thirteen hundred other UK designees will remain frozen under the UN orders for AQ and the Taliban through the EU's implementation of the UN resolutions, or through the EU's autonomous designations (i.e, of Hamas). One of HMT's concerns, however is that Khalid Sheikh Mohammed, 9/11 mastermind, was only designated under the UK regime, not through the UN's 1267 regime. Although KSM has no assets frozen in the UK, it would be an embarrassment if he were to be struck from the list. The five designees are: Mohammed al-Ghabra (whose assets remain frozen under the UN's 1267 regime as implemented through the EU); Hani el Sayed Sabaei Youssef, Michael Marteen, formerly Mohammed Tunveer Ahmed, Mohammed Jabar Ahmed and Mohammed Azmir Khan. LONDON 00000221 002 OF 002 Comment -------------- 6. (C/NF) Whether parliamentary approval of a new asset freezing regime will solidify HMG efforts and eventually make the government more confident remains to be seen. The government first needs to get a stay of the court's decision, and then scramble to get approval of a new regime. One glimmer of hope in the court decision is a comment that "Nobody should form the impression that in quashing (the order) the Court displaces the will of Parliament. On the contrary, the Court's judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted." While this language is likely intended as a signal that the new court favors parliamentary superiority over the government (despite the fact the government is actually led by the elected majority members of Parliament),it could in the end prove helpful to HMT if it can muster the votes for a new regime. Individual justices' side comments within the decision about the "draconian" nature of the sanctions, however, could signal increased hostility towards the government's terrorist finance or counter terrorism efforts which put security needs over civil liberties concerns. The full court decision can be found at: www.supremecourt.gov.uk/decided-cases/index.h tm Visit London's Classified Website: XXXXXXXXXXXX ed_Kingdom SUSMAN