Supreme Court · Majority judgment of Lord Phillips; one Justice dissenting
Facts
In HM Treasury v Ahmed [2010] UKSC 2 the Supreme Court held that the Terrorism (United Nations Measures) Order 2006, and part of the Al-Qaida and Taliban (United Nations Measures) Order 2006, made by Order in Council under section 1 of the United Nations Act 1946, were ultra vires, because the 1946 Act did not authorise measures having such a drastic effect on fundamental rights without parliamentary scrutiny. The Treasury then applied to the court to suspend the operation of the orders quashing those instruments for a limited period, so that Parliament could enact replacement legislation and assets would not be released in the interim.
History
This was an application made to the Supreme Court following its substantive judgment in the same appeals, HM Treasury v Ahmed [2010] UKSC 2.
Issue
Whether the court should suspend the effect of its order quashing the asset-freezing Orders in Council, so that the freezing measures would continue to be treated as effective until Parliament legislated.
Held
Application refused by a majority. The court declined to suspend its order.
Ratio
- Where the court has held that subordinate legislation is ultra vires, the instrument is and always has been of no legal effect, so a suspension of the court order would not give it validity in the meantime; the court should not grant a suspension whose practical effect would be to obscure the true legal position and to lend apparent authority to measures it has held to be unlawful.
The judgments
Lord Phillips (majority)
Gave the judgment of the majority. He reasoned that the court order did no more than declare and give effect to the legal position that the Orders were ultra vires and void; suspending it would not alter that position, would create a misleading impression that the Orders remained valid, and would put banks and others affected in an uncertain position. Any problem caused by the release of frozen assets was for the executive and Parliament to address by legislation, which they could do quickly.
Key reasoning
- The substantive judgment had held that the Orders were outside the powers conferred by the 1946 Act; it followed that they had never had legal effect, and the court could not by suspending its order make them lawful for an interim period.
- A suspension would risk the court appearing to authorise continued interference with the property of individuals under measures it had held unlawful, which would be inconsistent with the principle of legality on which the substantive judgment rested.
- Those dealing with the funds of designated persons needed to know where they stood, and a suspended order would leave them uncertain whether to treat the Orders as binding.
- The appropriate response to the gap created by the judgment lay with Parliament, which could legislate swiftly if it wished to maintain an asset-freezing regime.
Where it fits in the module
On the Human Rights Act topic, Ahmed shows the courts protecting fundamental rights through the common law principle of legality and ordinary vires review rather than through the Convention, and the follow-up judgment illustrates the remedial consequences: an ultra vires instrument is void and the court will not prolong its practical effect. It invites comparison with the remedial structure of the HRA, under which incompatible primary legislation remains in force and a declaration of incompatibility leaves the response to Parliament.
Criticisms
- Refusing suspension on the ground that the Orders were void ab initio may be thought too formalistic, since the court routinely exercises discretion over remedies and could have managed the transition to protect the public interest.
- The decision placed the burden of averting the release of frozen assets entirely on Parliament, arguably forcing hurried legislation on a matter of national security.
- Conversely, it can be defended as a principled refusal to let the court be used to sustain, even temporarily, executive measures held to lack legal authority.
Written with AI (claude-opus-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself on Find Case Law. Spotted an error? Tell us.