Judges V Ministers Anti-terror law is absurd, unfair and a breach of human rights
#1. Freezing assets of terror suspects ruled unlawful by High Court Asset-freezing orders imposed by the Treasury on terror suspects have been ruled unlawful Sean O'Neill, Crime and Security Editor Anti-terrorism legislation was condemned as poorly thought-out by a senior High Court judge yesterday as he declared that the Treasury’s powers to freeze suspects’ bank accounts were unlawful. Mr Justice Collins said that terrorist financial orders — introduced by Gordon Brown when he was Chancellor — were absurd,unfair and a breach of fundamental rights. The judge, who has lengthy experience of dealing with terrorism cases, said: “It was, frankly, another example of an immediate reaction without it being thought through properly — which is rather the pattern with the anti-terrorism measures.” The Times revealed this week that the judge was preparing to criticise the asset-freezing regime in the latest of a series of rulings that have exacerbated tensions between the judiciary and the Government. There are now 59 people living in Britain on the Treasury sanctions list, including the radical clerics Abu Hamza al-Masri and Abu Qatada, who are both in jail. The Bank of England has frozen 274 accounts, containing £656,000. Abu Qatada had £180,000 cash in his home when it was raided in 2001 and, despite the sanctions, Abu Hamza made £120,000 on a property transaction while in prison. Ruling on an appeal brought by five terrorist suspects — referred to in court as A, K, M, Q and G — the judge said that the sanctions had had “the most drastic effect” on them and their families. People on the terrorist list have to apply to the Treasury for a licence to spend money on groceries and anyone who provides them with “an economic resource” is liable to a criminal conviction and a jail sentence. The judge said the situation was “an absurdity” and recommended that two measures — the Terrorism Order and the al-Qaeda and Taleban Order — should be quashed. They will, however, remain in place pending an appeal that the ministers said the Government would pursue urgently. The measures were adopted to give effect in British law to two United Nations Security Council resolutions imposing sanctions on people alleged to be funding terrorism. The judge was critical that they were introduced as Orders in Council rather than through an Act of Parliament and were therefore not subject to debate by MPs and peers. He also criticised the absence of a procedure for suspects who wanted to challenge their listing as terrorists. The Government, he added, should consider introducing measures in the Counter-terrorism Bill to provide for a tribunal at which people on the Treasury’s list could challenge the financial sanctions. The judge told government lawyers: “You are going to have to legislate at some stage, otherwise the State will not be able to put before the court the incriminating or allegedly incriminating material.” He said he had “real concerns” that the orders had introduced a criminal offence, of assisting a listed person, without consulting Parliament. David Davis, the Shadow Home Secretary, said that the High Court had left Mr Brown’s asset-freezing regime “in tatters”. He added: “When you make laws in a hurry that are unfocused and arbitrary, the result is neither firm nor fair — just fragile.” Jacqui Smith, the Home Secretary, said that she was “very disappointed” with the ruling. Jane Kennedy, the Financial Secretary to the Treasury, said: “The Government continues to be fully committed to defending and maintaining our asset-freezing regime which makes an important contribution to our national security by helping to prevent funds being used for terrorist purposes and is central to our obligations under successive UN Security Council Resolutions to combat global terrorism.” But Jules Carey, solicitor for G, said that the importance of the judgment could not be overstated. He said: “It is the sovereignty of Parliament that is at stake here, the foundation block of the British constitution. If Government can, without consulting Parliament, give itself powers to create criminal offences and take away fundamental rights then we are watching the sun set on democracy.” >From The Times, April 25, 2008 http://www.timesonline.co.uk/tol/news/uk/article3806031.ece # 2. Judges will carry on holding ministers to account - because that’s their job Frances Gibb: Analysis Yesterday’s court rulings highlight the delicate relationship between the executive and the judiciary — one in which judges increasingly hold ministers to account, and find them wanting. The two cases are not isolated. In recent weeks, ministers have suffered a series of judicial hammer blows — from deporting terrorist suspects to powers to block the release of offenders on parole. So are our judges getting restive? Tension between the judiciary and executive is nothing new. In the past two decades successive home secretaries have felt bruised by the courts, notably over a whittling away of their powers to determine jail terms — or on asylum or immigration policy. Now the so-called War on Terror has given fresh impetus to the notion that judges seem to be getting too big for their boots. More than one home secretary has attacked judges for being liberal and out of touch. The antipathy has come from Tories and Labour alike; it is not the preserve of either. Nor is there any judicial agenda — political or otherwise — driving one or more judges to target ministers. Kenneth Baker and Michael Howard, both Conservative home secretaries, suffered notorious defeats; similarly, David Blunkett, as Home Secretary, was prompted to say: “I just want judges that live in the same real world as the rest of us . . . who help us and help you [the police] to do the job.” There were also angry clashes between Lord Taylor of Gosforth and Mr Howard over legislation to create minimum sentences. His successors, Lord Bingham of Cornhill and Lord Woolf, took up the baton. As home secretaries and lord chief justices changed, the conflict became less public, less “megaphone” than “backroom” diplomacy. But tensions remained. The two key battlegrounds are sentencing and the growth of judicial review. Just as ministers resent rulings that their policies are unlawful, so judges fiercely resist incursions into their independence — the freedom to match sentences to the crime. But ministers have wanted to get a grip on what they see as “soft” sentencing by judges: Mr Blunkett clashed with the judiciary over what he saw as their leniency. They also want to control the rising number of prisoners. In came the flashpoint of minimum sentences that fetter judges’ discretion. Now there is talk of a sentencing commission. Meanwhile, judges have been flexing their muscles. Almost unknown 30 years ago, judicial review — which allows people to challenge the decisions of public bodies — is an area of judge-made law that has taken off in the past two decades. In 1980 there were 491 applications to the courts compared with 3,293 in ten months of 1996. Why? Some say that an overweening administration — 18 years of Tory and then 11 years of Labour — with weak oppositions created a vacuum into which lawyers stepped, challenging laws in the courts: what Lord Irvine of Lairg, Labour Lord Chancellor, called a “democratic deficit”. There was also growing awareness of the European Convention on Human Rights. David Pannick, QC, a leading judicial review barrister, says there was “a willingness among lawyers to start testing in the European Court of Human Rights aspects of public policy, such as ministers’ powers over sentencing that were taken for granted in domestic law but which, on analysis, were incompatible with the principles of the separation of powers”. The Strasbourg-based court was also very willing, he adds, “to call a spade a spade”. When the European convention was enshrined into domestic law in the shape of the Human Rights Act in 2000, it did not give judges new powers — but enabled them directly to apply convention principles, with some humiliating results for ministers. The rulings stripping their powers over jail terms were in line with the principle that the executive should not be involved in what was a judicial function. So what ministers now feel are shock waves from a gradual process of constitutional reform that puts clearer blue water between the judiciary and the executive. Can it get worse — or judges’ powers increase? The separation of powers will be entrenched further with the new supreme court next year. Judges will not, like their US counterparts, be able to strike down statutes. But they will have a higher profile, be more confident and be seen as more authoritative. Still more imaginative human rights challenges may come before them; plus challenges to ministers’ efforts to square counter-terrorism measures with civil liberties. None of this is reversible. The clock cannot be turned back. Judges will continue to hold the executive to account — it is their role. And less populist politicians know that. But tensions will stay because, Mr Pannick says, “it is a feature of free societies, arising because judges sometimes have to rule government policies wrong. If politicians aren’t regularly irritated by judicial decisions, judges are not doing their job.” They fought the law . . . and the law won 2002 Law lords rules that Home Secretary cannot set minimum jail terms for adult murderers 2004 Law lords’ Belmarsh ruling says that the indefinite detention of foreign terror suspects without charge or conviction is unlawful 2005 Law lords rule that evidence that might have been obtained by torture cannot be used against terror suspects in UK 2007 Law lords rule that the most restrictive aspect of control order regime — 18-hour daily curfews — breach human rights 2008 Court of Appeal quashes terrorism convictions under Section 57 of Terrorism Act 2000. Five Muslims cleared after judges ruled that reading Islamist material was not illegal unless used to inspire violent extremism 2008 Court of Appeal blocks deportation of Abu Qatada and two Libyans back to Jordan and Libya respectively 2008 Court of Appeal rules that Home Secretary cannot block Parole Board recommendation to release prisoners serving between 15 years and less than life 2008 High Court declares halting of BAE investigation unlawful 2008 Appeal Court blocks Attorney-General’s attempt to increase four-and-half-year jail term on convicted terrorist Sohail Qureshi 2008 High Court says that rules imposed to allow freezing of terror suspects’ assets are unlawful >From The Times, April 25, 2008 http://business.timesonline.co.uk/tol/business/law/article3811657.ece # 3. House of Lords to rule on BAE corruption inquiry High Court tells SFO to reopen its bribery inquiry into BAE arms deals with Saudi Arabia, pending a final House of Lords ruling Frances Gibb, Legal Editor The Serious Fraud Office is to challenge the ruling that it must rethink the halting of its investigation into a £43 billion arms deals between BAE Systems and Saudi Arabia. Richard Alderman, the new director of the Serious Fraud Office, said that he would not reconsider the original decision to halt the investigation, nor reopen it pending the appeal to the House of Lords. Yesterday Lord Justice Moses and Mr Justice Sullivan quashed the SFO’s decision in December 2006 to halt its investigation, and said that in effect the investigation was reopened. But the SFO director said that no decision would be made until the law lords had ruled on what was a “very important issue”. He added: “The SFO took the decision to discontinue . . . because of advice there was a risk to UK lives as a result of terrorism. That is a very important issue and should go before the House of Lords.” This month the SFO suffered a humiliating defeat when Lord Justice Moses and Mr Justice Sullivan ruled that the SFO “unlawfully submitted” to “blatant threats” from the Saudis. The SFO had argued that the inquiry had to be stopped because of a threat to national security and intelligence co-operation. The case came back before the two judges who had delivered the damning judgment for a decision on what order they would make. They ruled in favour of anti-bribery campaigners who claimed that the SFO should have continued its investigation into alleged illegal payments to members of the Saudi Royal Family. Yesterday Dinah Rose, QC, for the campaigning groups Corner House Research and Campaign Against Arms Trade, told the judges that both sides had agreed that the matter should go to the Lords. She added: “There is agreement between the parties that the right belief is that the decision of the director of the Serious Fraud Office should be quashed and the matter remitted for reconsideration. The effect of that is that the inquiry is reopened unless or until a valid decision brings it to an end.” The judges then gave the SFO permission to appeal to the House of Lords; and ordered that the legal costs of the two groups — an estimated £190,000 — be paid for by the SFO. Lord Justice Moses said: “We think that as a result of the efforts of the two claimants, an important fact has emerged, namely the specific access given to 10 Downing Street and the threat issued there — ‘drop it or else’ — and it’s that fact which has given rise to the important public issue which needs to be determined, namely, ‘What is the lawful response when such a threat is issued?’ “We do not think that it is right that, in any respect, the claimants should bear the burden of having to litigate that, which they would have to even under a protective costs order. “We think this is a paradigm case for everyone having to bear the costs of litigating this issue, which relates to the way this country is governed and basic constitutional principles and, in those circumstances, we shall make an order that the appeal should be on terms that the respondent does not seek to disturb the order of costs in this court and should bear the reasonable costs of the appeal, win, lose or draw.” Richard Stein, the lawyer from Leigh Day & Co who took the case on a “no win, no fee” basis, said: “The court’s approach is refreshing and reassuring — taking account of the relevance of rule of law in this case.” The SFO investigation arose out of BAE’s £43 billion al-Yamamah arms deal with Saudi Arabia in 1985. In December 2006 Lord Goldsmith, then the Attorney-General, announced that the investigation was to be discontinued after a decision by the SFO director. Tony Blair had told him that the Saudis had privately threatened to cut intelligence co-operation with Britain unless the inquiry was stopped. Earlier Miss Rose said that the SFO had not sought to suggest that there was any error of law in the court’s judgment, but that it was a case where the public interest required a definitive ruling by the Lords. >From The Times, April 25, 2008 http://business.timesonline.co.uk/tol/business/law/article3807584.ece __________________________________________________________ Sent from Yahoo! Mail. A Smarter Email http://uk.docs.yahoo.com/nowyoucan.html
