On 27 January, the UK Supreme Court held that fundamental rights of suspected Islamist terrorists should not be violated without explicit parliamentary approval and the UN confirmed the UK’s complicity in rendition and torture.
Asset-freezing orders illegal
Between 2005 and 2007, out of the blue, a number of Muslim British citizens and residents received letters from the Treasury telling them that there were ‘reasonable grounds for suspecting that they were, or might be, persons who facilitated the commission of acts of terrorism’, or that they had been ‘designated’ on a United Nations list. They were given no further details because of the ‘sensitive’ nature of the information, but as a result they were banned from receiving or spending any money or ‘economic resources’ without government approval.
What this meant was that (as the judges put it) ‘Every transaction, however small, which involves the making of any payments or the passing of funds or economic resources whether directly or indirectly for the benefit of a designated person is criminalised’. Treasury consent had to be obtained to receive any payment, including social security benefits, and to purchase even the necessities of life – housing, medicines, food, clothing, heating, lighting, water, public transport. And the licences which allowed basic necessities to be provided included the requirement to account for every penny spent. For example, since his listing in 2005, the only form of support for HAY, an Egyptian national living in the UK with his wife and five children, has been in kind, provided by his wife from her welfare benefits (for which she, although not ‘listed’ herself, needed a Treasury licence). But she could spend money only on what the Treasury determined to be ‘basic expenses’, and for years was required to report to the Treasury on every item of household expenditure, however small, including expenditure by her children. Court of Appeal judge Lord Justice Sedley had earlier described people subject to freezing orders as ‘prisoners of the State’.
The effects of this regime on the men and their families were described by the judges as ‘drastic’, ‘oppressive’, ‘remorseless’ and ‘devastating’. In some cases they brought about mental breakdown, and in others caused marriage breakdown.
The asset-freezing orders were made under Orders in Council, the modern equivalent of royal decrees, which provide for no parliamentary scrutiny. They were designed to give effect to UN Security Council Resolutions requiring States to freeze the financial assets of al-Qaida, the Taliban and other groups, organisations and individuals involved in terrorism, or listed on a UN list. No parliamentary debate was held about the basis on which people were listed (which is not publicly revealed), the possibility of challenge to a freezing order (none) or its effects. The Treasury had gone further than the UN resolution required, in making ‘reasonable suspicion’ of financial support for terrorism the trigger for freezing assets – no criminal conviction, or charge, of support for terrorism was needed. In addition, any UK resident named on the UN list was automatically subject to a UK freezing order. There was no legal mechanism to challenge the freezing order or to get ones name off the list once on it.
In ruling that the Orders in Council were unlawful, the seven-judge Supreme Court said that the government did not have the right to bypass parliament in enacting provisions which interfered so drastically with fundamental rights As Lord Hope pointed out, the government could have used a parallel mechanism for freezing the assets of suspected terrorists provided in the Anti-Terrorism, Crime and Security Act 2001, which provided rights of appeal and other safeguards for those affected – but it chose not to. This deprived the men of access to a court to test the justification for the orders, as well as depriving them of rights to property and violating their rights to private and family life guaranteed by the European Convention on Human Rights. ‘If the rule of law is to mean anything’, Lord Hope declared, ‘decisions as to what is necessary or expedient … cannot be left to the uncontrolled judgment of the executive.’ He added, ‘Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.’
But the judges suspended the operation of their ruling for a month, to give the government time to decide how to replace the unlawful orders.
UN report reveals UK complicity in rendition and torture
A 292-page report, Joint study on global practices in relation to secret detention in the context of countering terrorism, was jointly compiled by UN special rapporteurs and working groups in the fields of human rights, torture, arbitrary detention and forced disappearance. The experts point out that secret detention and enforced disappearance can be traced back at least to ‘the Nacht und Nebel Erlaß of the Nazi Germany, the night and fog decree, according to which suspected resistance movement members could be arrested in occupied Europe and secretly transferred to Germany “under cover of night”.’ In the context of countering terrorism post-9/11, the report confirms that the UK intelligence services were aware of the US illegal rendition programme in 2002 but continued to co-operate with it for a further two years, handing over terrorist suspects to US custody until 2004.
The experts record their suspicions that detainees have been held in ‘proxy detention’ on behalf of the UK in other countries. They also confirm that the UK was complicit in the practice of secret detention in the cases of several individuals, including Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf, by sending questions to the detaining state or by soliciting or receiving information from the men while they were held in secret detention. They report on the case of Azhar Khan, a British national held in Cairo for five days in 2008 and tortured, who was questioned at one point by an English speaker about his life in the UK, and observe that UK intelligence agencies lack the oversight that would prevent crimes like complicity in torture from recurring in the future. The experts recommend that ‘to ensure accountability in intelligence co-operation, truly independent intelligence review and oversight mechanisms should be established … [which] should have access to any information, including sensitive information.’
Download the legal judgments here
Download a copy of the UN report Joint study on global practices in relation to secret detention in the context of countering terrorism here (pdf file, 916kb)