Terrorist Asset-Freezing etc. Bill [HL]
(13 years, 7 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
“Compensation
(1) The Secretary of State shall, by order, provide for the compensation of persons who have suffered loss as a result of an incorrect designation.
(2) An order under subsection (1) shall include provisions about—
(a) who may make a claim for an award;(b) to whom a claim for an award is to be made (which may be provision that it is to be made to the High Court or, in Scotland, the Court of Session);(c) the procedure for making and deciding a claim;(d) the circumstances under which compensation must be awarded (which may include provision that the circumstances involve negligence or other fault);(e) the amount that is to be awarded;(f) who is to pay any compensation awarded (which may include provision that it is to be paid or reimbursed by the Treasury);(g) how compensation is to be paid (which may include provision for payment to a person other than the claimant).”
Lord Davidson of Glen Clova
My Lords, the purpose of our amendments is to raise the broad issue of compensation and indemnity for consideration by the Committee. The suggested amendments have, as their provenance, the Australian terrorist asset-freezing regime. There are two principal parts to our proposed scheme: first, to indemnify persons from civil litigation for loss suffered as a result of having assets wrongly frozen when the person holding the asset has acted in good faith and without negligence, which includes protection from the Crown, needless to say; and, secondly, to compensate those persons who have suffered loss as a result of having assets wrongly frozen, when the person holding the asset has acted in good faith and without negligence.
The draft of the proposed amendment differs from the Antipodean legislation but follows the same approach as adopted in Australia. The position in Amendment 52 on indemnity is self-explanatory—namely, to exclude liability when the person has acted in good faith and without negligence in compliance or purported compliance with this part. It then sets out, perhaps a little inelegantly, how the various persons and institutions might be identified by reference to designation.
The second, related, aspect is compensation, set out in Amendment 46, which suggests a power for the Secretary of State to make orders providing for compensation when people have suffered loss as a result of an incorrect designation. The order may include various provisions, as is set out in the proposed amendment, on who can claim for an award, with which court the claim may be made, and so on. The phrase adopted,
“suffered loss as a result of an incorrect designation”,
would include persons incorrectly covered by a designation, such as someone with a similar name or the same name as the designated person—and US experience teaches us that that has become an increasing problem with terrorist-related issues. It would also include a designated person who has had their assets frozen incorrectly—for example, inconsistently with an applicable licence.
As I indicated earlier, we understand that the Government consider that there is sufficient compensation by way of a mechanism through appeal to the court. When I queried the Minister about this, I am not sure that I detected a complete response to our understanding. If my understanding is correct, one is in the position that the Appeal Court may make these orders, presumably by way of compensation. It would be helpful if the Minister could give some indication as to how it might be envisaged that such a process would work. It may be that it is seen as part of the judicial review process. Again, it would be helpful if it could be indicated how that might work.
The Government have also not included any particular compensation scheme in this Bill, but in so doing have distinguished the Bill from the Anti-terrorism, Crime and Security Act 2001, which provides a compensation scheme to be included with a freezing order. The proposal that is before the Committee in this amendment seeks to redress the dissonance between that Act and this Bill and to provide a transparent compensation scheme together with a proposed scheme for indemnity. That would avoid what might be called collateral damage from the operation of the asset-freezing regime proposed in the Bill. I beg to move.
Baroness Noakes
My Lords, I am sure that the Minister has “resist” written in large letters all over his speaking notes, but before he rushes to do so I shall add one example from the real world, which came to my party when we were preparing for the emergency Bill earlier this year. Our adviser at that stage, who was an eminent QC, gave us an example in relation to analogous legislation in which a company had been included on a blocked list because its shares had previously been held by a suspected person. Some months before his inclusion on this list, the person had sold his shares in the company on an arm’s-length basis and for value, but the company was nevertheless incorrectly included on a blocked list. It took a fair amount of time for the designation to be challenged and for the various other licences to be obtained, but in that intervening period the company suffered a considerable period of loss. My point in raising this is merely to say that there are real-world examples when loss can occur. We are not dealing with theoretical situations of safeguards to be included in the Bill. I hope that the Minister can give some reassurance to the Committee that remedies are available when that sort of situation arises.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, in responding to the amendment, I congratulate the noble and learned Lord, Lord Davidson of Glen Clova, on a very productive summer working on the Antipodean experiences, based on questions that he had already asked my noble friend Lord Sassoon, which are the origins of these new clauses. They raise important points about compensation in very real situations, such as the one described by my noble friend Lady Noakes, when an incorrect designation can lead to consequences of loss for those who have been wrongly designated, and also on the question of indemnity.
Amendment 46 introduces a new clause that imposes a duty on the Treasury to make an order providing for compensation for persons who have suffered loss as a result of an incorrect designation. The noble and learned Lord, Lord Davidson, said that this was based on Australian legislation in a similar field, and referred in his closing remarks to a parallel provision in the Anti-terrorism, Crime and Security Act 2001, under which the Treasury may include a provision for the award of compensation when a person has suffered a loss as a result of a freezing order or in relation to a licensing decision. The word “may” marks the distinction between the 2001 Act and the new clause before us today, which makes it a requirement by using the word “shall”.
With regard to our position, my noble friend Lady Noakes rightly anticipates the word “resist”, not because we do not recognise that there is an important issue here to be addressed but because the Bill already includes a number of important safeguards, including the right of any affected person to challenge a decision of the Treasury. Indeed, following our amendments, we have debated today the right of affected people to apply to the courts for a robust and in-depth consideration of a Treasury asset-freezing decision, as well as to apply for judicial review in terms of licensing matters. Should a designated person or any other person wish to seek compensation for loss suffered as a result of an incorrect designation, we believe that there are sufficient existing opportunities available for them to do so. It would be possible, in connection with a challenge of the sort that I have described above, for the person to claim damages.
I note that the new clause, as drafted, is in respect of an incorrect designation—in other words, it goes to the heart of a designation that has been made. That is in the terms of the new clause that has already been debated and which the House will vote upon later. The new clause relating to appeals to the court relates to a decision of the Treasury to make an interim or final designation of a person. I refer the Committee to the terms of that new clause, at Amendment 57:
“On such an appeal, the court may make such order as it considers appropriate”.
Therefore, as I have indicated, we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant. Indeed, there may be other circumstances—
Baroness Noakes
I apologise for interrupting the Minister. If I turn to Amendment 57, I see that it is the designated person who may appeal, which does not include all the potentially affected persons. Would he comment on that?
Lord Wallace of Tankerness
I acknowledge that point. My understanding is that if a person other than the designated person had suffered loss as a result of a decision of the Treasury, it would be possible for them to raise an action. I will get further information to confirm that to my noble friend, but the person whose designation is being challenged—the designated person—would have a forum and an opportunity in that context to seek damages. It may also, in some circumstances, be open to a person to claim damages under the Human Rights Act if the particular circumstances so arose, and therefore we not believe that any further provision for compensation is necessary.
The purpose of Amendment 52 would appear to be to increase the protection from prosecution given to a person complying with the provisions of Part 1 of the Bill. It would achieve that by specifying that no person complying with Part 1 was liable to court action as a result of such compliance. Again, the intention behind this is understandable, and we recognise that the rationale is to provide that additional protection from claims made against persons—it could be, for example, bank employees who have quite dutifully acted in compliance with the requirement under Part 1 of the Bill. However, we do not believe that the proposed clause is necessary. It is already a defence to claim that a person was acting in compliance with a lawful requirement, and the Government believe that this principle is sufficiently well established that the drafting of the Bill does not need to be amended. In fact, the basic principle is already there, and we do not need to add to it; indeed, it is often the case that when you add to something that is already well established in principle, you sometimes can give rise to questions about the extent of the principle. We believe that that principle is there, and it is well established. Accordingly, the amendment is not necessary. In the circumstances, I hope that the noble and learned Lord, Lord Davidson, will be prepared to withdraw his amendment.
Lord Pannick
I would like clarification in relation to compensation. As I understood the Minister, he suggests that Amendment 57, giving the court the power to make such order as is considered appropriate, would be broad enough to empower the court to award compensation to the affected individual who had been designated. Is the Minister saying that this provision is broad enough and is intended to overturn the general principle of English administrative law—and, I presume, Scottish administrative law—that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action? One normally needs to show some tort, a misfeasance—that either the official knew that what he was doing had no lawful basis or he was at least reckless. If it is the intention to give the court a power to grant compensation simply for the invalid nature of the designation, would it not be better to say so expressly in the Bill?
Lord Wallace of Tankerness
I am grateful to the noble Lord for that intervention. I sought to draw a distinction, which I think my noble friend Lady Noakes made, under Amendment 57, where the question is of the designated person himself or herself. My noble friend made a different point, the position on which I indicated I would write to her and clarify.
My understanding is that it would be possible for the court to make, as he says, such orders as it considers appropriate. That is not qualified in any way, although I take the noble Lord’s point. If indeed it requires further specification then I will be willing to consider that. If it is felt that the nature of what is in the Bill, although it seems very wide, is insufficiently wide to cover the reassurance that I have given, I will undertake to look further at that.
Lord Davidson of Glen Clova
I am invited to withdraw, and the Minister has always been remarkably persuasive when I appeared against him in court. There are a couple of points though. First, one cannot write off the Antipodes with a wave of the hand in the way that the Minister sought to do; they face the same problems and have produced imaginative responses.
With regard to the question of imposing a duty in respect of compensation, true it is that that differs from the 2001 Act; but it does not avoid the dissonance that the 2001 Act actually refers to a possibility—that is, a discretion in relation to compensation. I invite the Minister at least to consider whether there might be a similar discretion, if not a duty, in the Bill.
In relation to the safeguards already in place, one may obtain damages whether one is the designated person or a non-designated person. I am still slightly confused as to where in the Bill one is to find this. If it is to the Appeal Court that one must go, then not only is there the issue that the noble Baroness, Lady Noakes, raised—we will find out in due course what the answer to that is—but there is also the question of how the Appeal Court is going to deal with damages. As the Minister well knows, simply because one asserts a damage, it does not follow that it will be accepted by the authorities. Is the Appeal Court to have a fact-finding role in relation to damages?
In relation to judicial review, again, for a party who is not the designated person to raise their own judicial review and proceed to damages is perhaps not necessarily—as a matter of law, as the noble Lord, Lord Pannick, suggests—the most obvious way of acquiring damages. Again, it would be helpful in due course to have some clarification on that. I welcome the Minister’s embrace of the Human Rights Act, for which I know he has a strong regard, although it has not always been demonstrated by other members of the coalition. The way in which this is to proceed leaves a certain gap as to where the Human Rights Act will go in these issues. I will accede to the Minister’s suggestion that I withdraw the amendment, but I also note that we may well return to this on Report.
Baroness Hamwee
Baroness Hamwee
This is a short amendment to Clause 16, which gives the Treasury powers to request information. Under subsection (3) we are told that the power is exercisable only where the Treasury believes that it is necessary to monitor compliance or detect evasion. My amendment would take out “the Treasury believe that” so that it reads “only where it is necessary for the purpose”, to provide a more objective test and give one the basis to ask for confirmation that the belief—assuming the clause is unamended—that the Treasury must have is reasonable. I beg to move.
Lord Wallace of Tankerness
I thank my noble friend for this amendment. As she has indicated, the effect of the amendment would be to make the grounds for a request under this part into an objective test by requiring it to be necessary, rather than—as provided and drafted as present—a subjective test. My noble friend would do that through the removal of the reference to the Treasury believing it to be necessary. I understand the concern that prompts the amendment. The clause makes whether to seek certain information a matter of subjective judgment for the Treasury. However, if this is challenged we believe that, as a consequence, the court will look at the reasonableness of the belief that it was necessary, rather than at whether it was objectively necessary. It is a high test and threshold for there to have to be a belief that the information must be necessary. Ultimately, whether the information is needed or not it is a matter for the Executive. However, as drafted, there is a high threshold to be satisfied, but it is nevertheless considerably preferable to the objective test that would result from my noble friend’s amendment. Therefore, I urge her to withdraw her amendment.
Baroness Hamwee
“(3) A person must comply with a request under this Chapter even if doing so might constitute evidence that the person has committed an offence.
(4) But in criminal proceedings in which a person is charged with an offence—
(a) no evidence relating to any answer given, or anything else done, in response to the request may be adduced by or on behalf of the prosecution, and(b) no question relating to those matters may be asked by or on behalf of the prosecution,unless evidence relating to those matters is adduced, or a question relating to those matters is asked, in the proceedings by or on behalf of the person.
(5) Subsection (4) does not apply to—
(a) an offence under section 112 of the Social Security Administation Act 1992;(b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than an oath in England and Wales); or(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (corresponding provision for Scotland).”
Baroness Hamwee
This amendment is longer but I hope the debate will not take us very long. We have just dealt with Clauses 16 and 17, which allow the Treasury to request—though it really comes down to “require”—information or documents. Clause 18 makes it an offence to fail to comply with such a request. I am grateful, as always, to the organisations Justice and Liberty for the amendment, which makes provision in relation to that requirement where providing information or documents might result in self-incrimination.
The Human Rights Act provides under Article 6 the right to a fair trial and that includes privilege against self-incrimination. The amendment is modelled on provisions in existing legislation and would continue to require the person in question to provide the information, but would also provide that evidence which is self-incriminatory should not be admissible in any criminal proceedings against that person. I beg to move.
Lord Wallace of Tankerness
My Lords, as my noble friend has explained, the underlying concern which her amendment seeks to address is that there could be circumstances leading to self-incrimination. The amendment seeks to protect the privilege against self-incrimination. She has also indicated that it is based on provisions in other legislation. I think that the Companies Act may have similar provisions. The amendment appears to be born from a concern that the Bill infringes that right against self-incrimination. I seek to reassure my noble friend and the Committee that the privilege against self-incrimination is not overridden by the Bill. In particular, a concern held by a person that compliance with an information request would infringe that person’s right against self-incrimination would form a reasonable excuse. I draw the Committee’s attention to Clause 18(1), which states:
“A person commits an offence who—
(a) without reasonable excuse refuses or fails … to comply with any request made under this Chapter”.
We believe that the right against self-incrimination would form a reasonable excuse under Clause 18(1) to refuse to comply with such a request. I believe that this provision is sufficient to maintain the important privilege against self-incrimination to which my noble friend referred. I hope she will be reassured that it is sufficient and that she will therefore withdraw the amendment.
Baroness Hamwee
My Lords, indeed I am reassured and I beg leave to withdraw the amendment.
“(ba) to any law officer of the Crown for Jersey or Guernsey;”
Lord Wallace of Tankerness
My Lords, this is a short technical amendment. Clause 19 as a whole provides that the Treasury may disclose information obtained under Part 1 to various persons, organisations and bodies within the United Kingdom and elsewhere for the purposes of facilitating compliance with the asset-freezing regime, promoting co-operation among those on whom it falls to implement it and enabling effective enforcement of the financial restrictions within the United Kingdom and across borders. Therefore, the ability to share information is essential to the maintenance of an effective asset regime. However, I take the opportunity to stress that the Treasury will share information only when it is necessary to do so, and will disclose only those aspects of the information which need to be disclosed. However, the Government have tabled this small amendment to remove any doubt that the disclosure of information obtained under Part 1 may be disclosed to the law officers of Jersey or Guernsey. We have done so because the law officers of Jersey and Guernsey are appointed by the Crown in Right of Jersey and Guernsey but are independent of the two states. Because of this distinction, we felt that it was necessary to ensure that the original intention of the clause—namely, the ability of the Treasury to share information with these law officers—has been met. I hope that your Lordships will be able to support this technical amendment to the Bill.
Baroness Hamwee
Baroness Hamwee
This is another amendment for which I am obliged to Liberty and Justice. Clause 21(1) provides that,
“Nothing done under this Chapter is to be treated as a breach of any restriction imposed by statute or otherwise”.
My amendment would take that out because it seems to be a very broad power giving the Treasury considerable leeway to set on one side other statutory and common law provisions. There are exceptions in Clause 21(2) but only in relation to the Data Protection and the Regulation of Investigatory Powers Acts. I have two points. First, why do the Government consider that this exemption is necessary, particularly in such broad terms? Secondly, as a minimum it should not include a failure to act in accordance with the Human Rights Act. My noble and learned friend, who may also reply to this amendment, is a great fan of that legislation. He may be able to confirm that it is not possible to carve it out in this way or, indeed, in any way. However, I see that my other noble friend will reply to this amendment. I beg to move.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, as my noble friend has made clear, the suggestion behind the amendment is that subsection (1) of Clause 21 gives the Treasury a wide power to disseminate information. It is the intention of the amendment to limit that power. In fact, this provision applies to anyone giving information to the Treasury as well as to any information supplied by the Treasury. Therefore, the purpose of the provision is primarily to protect persons when they disclose information to the Treasury. For example, it protects a bank that has provided information about a customer to the Treasury in accordance with the requirement under the Bill from being subject to an action taken by the customer on the basis of a breach of confidence. I also note, as my noble friend does, that no disclosure under the Bill can be made in a way that contravenes the Data Protection Act. This is set out in Clause 21(2).
On the second point that my noble friend raises, the general wording of Clause 21(1) is not, as a matter of constitutional principle, capable of overriding any provision in the Human Rights Act. I trust that these points will be sufficient to reassure my noble friend that this clause is necessary and that the protections in place under Clause 21(2) meet the intention of her amendment. I hope that she will be able to withdraw it.
Baroness Hamwee
Indeed, my Lords, I am grateful and I beg leave to withdraw the amendment.
Lord Sassoon
“Appeal to the court in relation to designations
(1) This section applies to any decision of the Treasury—
(a) to make or vary an interim or final designation of a person,(b) to renew a final designation of a person, or(c) not to vary or revoke an interim or final designation of a person.(2) The designated person concerned may appeal against any such decision to the High Court or, in Scotland, the Court of Session.
(3) On such an appeal, the court may make such order as it considers appropriate.
(4) The making of an appeal under this section does not suspend the effect of the decision to which the appeal relates.”
Lord Sassoon
Lord Sassoon
Lord Sassoon
Baroness Hamwee
Baroness Hamwee
The amendment would remove Clause 23(4), which applies the provisions of the Counter-Terrorism Act that relate in particular to special advocates and thus applies similar rules of court and similar provisions to those used in control order cases, where there can be determination of proceedings without a hearing and different modes of proof and evidence and so on, with special advocates appointed by the Attorney-General who are not allowed to disclose exempt material to the affected person, who cannot in the normal way access expert evidence and who cannot effectively take instructions from their client. Effective legal representation—this is the contentious issue that expands well beyond the Bill—is difficult if not impossible if it is not possible to challenge the intelligence on which the decision is based. I am concerned about the principle, but in the context of these procedures I am concerned to ensure fair hearing rights, since the right to know the details of an accusation against one is fundamental to a fair trial.
I have spoken quickly because of the time and because I know that others in the Chamber will be able to say more as a result of their own work, both practically and having considered the matter far more than I have. However, I wanted to introduce the amendment and I beg to move.
The Deputy Chairman of Committees (Baroness Morris of Bolton)
If Amendment 70 is agreed to, I cannot call Amendments 71 to 73 because of pre-emption.
Lord Pannick
Noble Lords are very familiar with the problems—the unfairness and the practical difficulties—that are caused by special advocate procedures. Clause 23(4) is acceptable only if the person concerned has a right to see at least the essence of the material that is relied on in the case against him, as the Appellate Committee decided in the control order context in the AF case.
The Minister said earlier that fairness depends on its context. I ask him to state clearly on behalf of the Government whether they accept that in this context—the freezing of assets—fairness requires that the individual concerned be personally told the essence of the case against him. I cannot see how it could possibly be fair to freeze a person’s assets on a permanent basis, causing all the disruption and damage to their personal life that the Supreme Court explained in the recent case, without that person being told at least the essence of the case against them and having a fair opportunity to answer it. The Appellate Committee in AF made it very clear that the special advocate procedure is wholly inadequate to ensure fairness in that respect, so I hope that the Minister will confirm to the Committee that the Government accept that the AF principles apply in this context.
Baroness Falkner of Margravine
I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)—not least those of the AF case, referred to by the noble Lord, Lord Pannick—are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.
I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:
“(1) Lack of access to independent expertise and evidence … (2) Ability to test Government objections to disclosure of closed case”,
and, finally,
“Limits on ability to communicate with controlled person”,
after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:
“The special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court. Courts inevitably ‘accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’”.
As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant—in this case, the designated person—so many rights to which a defendant would normally be entitled under human rights law.
If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.
The Archbishop of York
My Lords, under the new clause inserted before Clause 22 by Amendment 57, which we have just agreed, designated persons will be able to appeal and will know the case before them, whether their designation is interim or otherwise. Clause 23, “Review of decisions by the court: supplementary”, then details supplementary provisions on the reviewing of such cases. Therefore, I would have thought that, if I was designated under an interim order, under the new clause inserted before Clause 22 I would be able to appeal on the case before me. Otherwise, how would the case be heard? For me, that is the order in which things will happen.
If the new clause inserted by Amendment 57 had not been agreed, I would have agreed with the noble Lord, Lord Pannick, that the provisions would not make sense. However, now that the Government have inserted that new clause by Amendment 57, it seems to me that the rest now follows. I would agree with the position of the noble Baroness if we did not have the new clause, but I think that the new clause will allow appeal at all different stages. Therefore, the courts will be able to decide on those matters. Clause 23 just makes supplementary provisions on reviewing such matters.
Lord Wallace of Tankerness
My Lords, Amendment 70 from my noble friend Lady Hamwee raises some important points about the use of special advocates and disclosure, as has been reflected in the speeches in this—albeit short—debate.
Amendment 70 relates to the supplementary provisions in relation to anyone wishing to challenge an asset-freezing decision. Clause 23(4), which the amendment seeks to delete, applies the procedures to be followed in determining an application made to the court for a Treasury decision to be set aside. The provisions of subsection (4) require the maker of the rules of court to have regard both to the need for a proper review of the decision that is subject to challenge and to the need to ensure that disclosures are not made where to do so would be contrary to the public interest such as—to give the most obvious example—for reasons of national security.
As asset-freezing proceedings relate to issues of national security, some cases will inevitably involve the use of sensitive, or closed, material such as intelligence material that it would not be in the public interest to disclose to the individual concerned. However, I emphasise that the starting point must be that the individual is given as much information as possible, subject only to the legitimate public interest concern. However, the provisions in Clause 23 ensure that closed material can also be used in court proceedings through the special advocate system, which is the system that Amendment 70 seeks to restrict but which nevertheless should, we believe, be part of the system that is used.
The special advocate system and the disclosure procedure are designed to ensure procedural justice for individuals in admittedly difficult circumstances in which in the public interest material cannot be disclosed to them. The special advocate, who is a specially cleared lawyer, will take instructions from the individual and will then have access to the closed material. Without this subsection, the court might not be able to appoint a special advocate, whose role would be to argue for more information to be disclosed to the individual and also, in effect, to mount a challenge against the Treasury decision involving closed information.
As this debate reflects, as other exchanges have reflected and indeed as court cases reflect, the Government recognise that a range of concerns have been expressed about the special advocate system. I assure the Committee that the Government are committed to meeting our obligations under the European Convention on Human Rights with respect to a right to a fair trial and we believe that the special advocate system is part of the process. I can advise the Committee that there will be an opportunity to raise the concerns that this amendment is aimed at more widely during a consultation on a government Green Paper on the use of sensitive information in judicial proceedings. That Green Paper will aim to develop a framework for ensuring appropriate judicial and non-judicial scrutiny of intelligence and security activities in line with the Government’s commitment to individual rights, the rule of law and properly protecting national security. It is anticipated that that Green Paper will be published next year.
Ultimately, we must constantly strive to secure in a modern legal framework the best balance between the interests of justice and the interests of security. We referred earlier to the case in which the noble Lord, Lord Pannick, represented the successful appellants. I indicated to him that that case obviously related to control orders and that the Government do not necessarily accept a read-across. I think he will understand why we are not in a position to make that read-across. I pointed out to him in an earlier exchange that fact and context are important in these circumstances. However, I reiterate what I said earlier: our starting point is that, so far as is consistent with the legitimate interests of national security, we should advise persons subject to a designation order what the grounds of that order are.
I acknowledge that this is a difficult and sensitive matter. I have indicated that we want to look at this whole issue next year on the basis of a Green Paper but, for the purposes of the present Bill and this amendment, we believe that it would be a mistake and not necessarily in the interests of the person who is subject to designation for this subsection to be removed. Controversial though the special advocate’s role may be, we nevertheless believe that it will be necessary in dealing with appeals or indeed judicial reviews that may arise under these provisions.
Lord Pannick
Can we be clear about this? Although the Government have introduced a very welcome right of appeal for persons who are designated, the Minister is telling the Committee that there may be cases where an individual is told absolutely nothing about the reasons for his designation and he will be left to rely on the special advocate, to whom he cannot talk and who cannot take instructions from him. Is that the Government’s position?
Lord Wallace of Tankerness
As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.
Baroness Falkner of Margravine
The forensic intervention of the noble Lord, Lord Pannick, has gone to the heart of the problem. If I understood my noble and learned friend correctly, I think he was saying that we will have a Green Paper. That will be some time next year, but in the mean time my noble friend Lord Macdonald is conducting a review of the counterterrorism and security regimes which will report some time this autumn. Yet, we are asked with these events anticipated to leave the Bill as it is. What will we get? Will we have bad legislation which will be overturned shortly as it will be deemed inappropriate if my noble friend Lord Macdonald finds that that is the case; or will it be overturned as a result of the consultation? As this Bill is such an improvement on the previous regime, would it not be sensible to take this improving zeal forward slightly and stick with our consistent respect on this side of the House for the rule of law in civil liberties?
Lord Wallace of Tankerness
I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.
Baroness Hamwee
The noble Lord, Lord Pannick, as my noble friend said, has described the situation very graphically. But his description, my noble friend’s flattery or my amendment will not get us further tonight. I am not surprised that the Government resist dealing with special advocates separately in this regime from how they might be dealt with overall. It occurred to me because of the counterterrorism review to suggest a sunset clause to this Bill so that we would be forced to reconsider it all when we had the outcome, but I thought that that would not endear me to my noble friends, and more importantly it is not entirely the proper way to go about things. However, it was quite tempting. I am not at all surprised at the response. I share the concerns that have been expressed and beg leave to withdraw the amendment.
“Initial exercise of powers to make rules of court
(1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in England and Wales—
(a) on an appeal under section (Appeal to the court in relation to designations), or(b) on a claim arising from any matter to which such an appeal relates,those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.(2) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in Northern Ireland—
(a) on an appeal under section (Appeal to the court in relation to designations), or(b) on a claim arising from any matter to which such an appeal relates,those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.(3) Before making rules of court under this section, the Lord Chancellor must consult—
(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales;(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.(4) The Lord Chancellor is not required to undertake any other consultation before making the rules.
(5) The requirements of subsection (3)(a) and (b) may be satisfied by consultation that took place wholly or partly before the passing of this Act.
(6) Rules of court made by the Lord Chancellor under this section—
(a) must be laid before Parliament, and(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.(7) In reckoning the period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) If rules cease to have effect in accordance with subsection (6)(b)—
(a) that does not affect anything previously done in reliance on the rules, and(b) subsection (1) or (as the case may be) (2) applies as if the rules had not been made.(9) The following provisions do not apply to rules of court made by the Lord Chancellor under this section—
(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules);(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).(10) But section 4(1) of the Statutory Instruments Act 1946 (statutory instruments which are required to be laid before Parliament) applies to any such rules applicable to proceedings in Northern Ireland as it applies to a statutory instrument which is required to be laid before Parliament after being made.
(11) Until section 85 of the Courts Act 2003 (process for making civil procedure rules) comes into force, in subsection (9)(a) above, for “section 3(6)” substitute “section 3(2)”.
(12) In this section—
“related rules of court” means rules of court that—
(a) are contained in the same instrument as the rules mentioned in subsection (1) or (as the case may be) (2), and
(b) relate specifically to the same kind of proceedings as those rules,
“rules of court” means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal.”
Lord Wallace of Tankerness
This group of government amendments make provision for court rules for the hearing of challenges to decisions by the Treasury. Amendment 74 is designed to ensure that court rules tailored to the requirements of an appeal from a designation decision are in place shortly after the Bill is enacted. Having court rules in place might self-evidently be necessary to ensure that there is a procedure for hearing any challenges that commence shortly after Royal Assent.
Ordinarily, court rules are made by the relevant committee—in this case, either in the Civil Procedure Rule Committee or the Northern Ireland Supreme Court Rules Committee. However, the amendment gives the Lord Chancellor power to make the initial rules. It is important to explain that the reason for doing that is entirely one of practicality. Rules are needed immediately the Act is in force and, given the short timeframe, it would be very difficult for the committees to make such provision. We therefore think that the Lord Chancellor is best placed to do so. However, after that initial exercise of the power, any future changes to the rules would be solely for those committees to determine.
A similar situation arose in the context of tailoring court rules for asset-freezing proceedings under the Counter-Terrorism Act. Again, rules were needed to be in place immediately after designation, and provision in that case was made for the Lord Chancellor to make the rules in a similar way. I can assure the Committee that, before making rules, the Lord Chancellor will be required to consult the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland as appropriate. Rules must be laid before Parliament and be approved by both Houses within 40 days, failing which they will cease to have effect.
Amendments 92 and 93 make small technical changes to the existing court rules made by the Lord Chancellor under the Counter-Terrorism Act 2008 to apply these rules to any challenges to Treasury decisions other than designation decisions. These will fall to be determined by judicial review. Amendments 89 to 91 make consequential changes, primarily to set out the territorial extent of the amendments to the court rules made by Amendments 92 and 93. Anticipating a possible question from the noble and learned Lord, Lord Davidson of Glen Clova, when I saw these provisions I asked what was the position in Scotland. I am assured that the rules of court in Scotland can be made under the Court of Session Act 1988, that no additional power needs to be taken in the Bill and that the Office of the Solicitor to the Advocate-General has been in touch with the Lord President's private office about specific rules which need to be made. With those reassurances, I beg to move.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 76 and 77. The noble and learned Lord, Lord Davidson, and the noble Lord, Lord Davies, have tabled Amendments 78 and 79. My first amendment is to Clause 24, which introduces a requirement on the Treasury to make regular reports. Amendment 75 would ensure that the reports covered not only designation orders but licences granted, varied or revoked. My second amendment is largely consequential on my earlier amendments. It would extend the report from the powers conferred on the Treasury to the court. It may well be implied under the amendments to which we have agreed to put in place the appeal procedures that they will be included in the report, but I want to be sure about that.
Amendment 77 is an amendment to Clause 25, which provides for an independent review of the operation of the provisions. In the interests of seamless government, with the Home Office reviewing counterterrorism, I would like the Treasury's appointment to be in consultation with the Home Office. I fully expect an assurance that that is what will take place. I beg to move.
Lord Davidson of Glen Clova
My Lords, I shall speak to Amendments 78 and 79, which stand in my name and that of my noble friend Lord Davies of Oldham. Amendment 78 is self-explanatory. It seeks consolidation of the legislation in relation to terrorist asset-freezing regimes throughout the United Kingdom. I am conscious that time after time it is suggested that all manner of laws should be consolidated, but that is not always possible due to parliamentary time and so on. In this case, I bring to the Minister’s attention—although I am sure he already knows—that in Ahmed the Supreme Court has already suggested that consolidation may be useful in this area. That view was repeated by the Constitution Committee. I immediately accept that consolidation is outside the scope of the Bill and, as the noble and learned Lord, Lord Wallace, has indicated, it might produce delay that could not be countenanced, given the need for the Bill to be in place by the end of the year. Therefore, only this limited amendment is proposed. It provides that the independent reviewer should include recommendations about whether there should be consolidation of the legislation.
Amendment 79 is also self-explanatory. It requires the independent reviewer to publish expenses and allowances. This is our usual requirement of transparency in relation to this innovation of a new reviewer.
Baroness Falkner of Margravine
The report by the Constitution Committee, of which the noble Lord, Lord Pannick, and I are members, recommended that there should be consolidation of the legislation. I think there are two other Acts that relate to terrorist-asset freezing regimes. Will the Minister tell us his views on that consolidation?
Lord Sassoon
My Lords, I shall take these amendments in turn. As my noble friend said, Amendment 75 relates to the quarterly report that the Treasury lays before Parliament on the operation of the asset-freezing regime. The amendment specifies that the number of licences granted, varied and revoked should be included in the report. I assure the Committee that we are committed to ensuring the transparency and accountability of the asset-freezing regime, and that is why we have enshrined the practice of reporting to Parliament in the legislation. The report already provides information on many aspects of the operation of the regime, including the number of licences that have been granted each quarter, and I do not foresee any difficulties in providing the further information requested. Indeed, I am happy to commit to providing such information in the quarterly report under the powers proposed in the Bill. On that basis, I do not believe it is necessary to set out this detail in the legislation and I hope that my noble friend will withdraw the amendment.
Amendment 76 is a consequential amendment that relates to earlier amendments tabled by my noble friend, in particular those relating to Clause 2 that sought to provide the court with powers under Part 1. The amendment simply alters the language of Clause 24(1)(a) so that the quarterly report that the Treasury is required to prepare includes references to the exercise of the powers conferred on the Treasury and the court under Part 1. Having had the discussion on the amendments that seek to give the court various powers under Part 1, I am sure the Committee will agree that further discussion on this point now falls away and is no longer necessary. I therefore hope that my noble friend will not move this amendment.
Amendment 77 requires the Treasury to consult the Home Office about the appointment of an independent person to review the terrorist asset-freezing regime. I am not sure precisely what the intention is behind it and whether it is envisaged that the Treasury might ensure that the same person will be responsible for this review as the other reviews of the UK’s counterterrorism legislation. I can certainly see merit in such an arrangement, but there is also a need to ensure that the reviewer can give sufficient time and attention to this particular role.
The decision of who will review the asset-freezing regime has yet to be made. We will consider the appointment very carefully and in doing so will work closely with the Home Office. We will of course also consult other Whitehall departments where appropriate. We therefore broadly agree with the intention behind the amendment, but I hope that noble Lords will agree that it is not necessary to amend the legislation to reflect what I can assure the Committee will happen in practice.
Amendment 78 would require the independent reviewer to make recommendations in his or her first report on whether domestic asset-freezing legislation should be consolidated. It is a topic which the House discussed at some length at Second Reading. As is recognised by the Committee, we do not have the luxury of doing that within the scope of the present Bill.
The purpose of the independent review under this Bill is to report on the use of the powers included in the Bill. We believe it is important that the independent reviewer is free to examine any aspect of the asset-freezing regime and accordingly free to make any recommendations that he or she chooses. This may include recommendations on the desirability of consolidation of the asset-freezing regimes, but we believe that this is a decision that should be left to the reviewer. I hope therefore again that the Committee will agree that it is not necessary to amend the Bill and that the noble and learned Lord will not press his amendment.
Amendment 79 would require the Treasury to publish the expenses and allowances paid to the independent reviewer of the operation of the asset-freezing regime. We assume that the intention is to provide further transparency in respect of the costs associated with the independent review. We would be happy to publish this information if requested. Again, I hope that the Committee will agree that it is not necessary to amend the Bill to require the disclosure of this information, although, as I say, we will be happy to publish it. I hope therefore that the noble and learned Lord will be happy not to press his amendment.
Baroness Hamwee
My Lords, I am grateful to the Minister. With regard to Amendment 75, I think he said that I was seeking information about the number of licences. In my mind, I was going rather wider than that. I do not think that this is just a matter of number, but I am not sure whether I heard him correctly. He might want to come back on the content of licences as well as the number. That is what I was looking for.
The second amendment was consequential. I am not sure that it quite falls away given that we have progressed with regard to the court’s role by including appeals as well as judicial review. It would be quite perverse if the reviewer did not cover appeals and judicial reviews, so I do not think that I need to press that further.
The Minister asked whether I had in mind the appointment of the same person by the two departments for the different types of review. That was not what I was thinking of; rather it was the crossover of responsibilities between the Treasury and the Home Office as they are both involved in the same subject matter. However, he has given me the assurances I sought. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I will be quick. Clause 28 provides for offences by company officers and uses a term that I have not seen before in legislation—that they “connive” with or in something. Connivance is a term one associates with PC Plod rather than with statute, and I wonder whether this is the first time it has been used in legislation. I understand what it means, and perhaps this is a rather frivolous amendment. If so, I apologise. However, it struck an odd note.
More seriously, Amendment 81 would change the trigger for the offence in subsection (1)(b) from “neglect” on the part of a company officer to “recklessness”, implying that the person knows the likely consequences of his action. A word or two in defence of “neglect” is what I am seeking, or, of course, agreement to the amendment. I beg to move.
Lord Sassoon
I am happy to confirm for my noble friend that the language in respect of both issues is in fact standard language in other legislation. On the question of “connivance”, the term is standard—it is used in Section 14 of the Bribery Act 2010, for example—so the Government believe that the clause should remain as drafted. If the Committee would like more explanation, I am happy to give it, but I can give an assurance that it is standard language.
Similarly, on Amendment 81, I should make the important point that again the language as it stands in the Bill is standard and follows the drafting in other pieces of legislation. Noble Lords may be familiar with Section 37 of the Health and Safety at Work etc. Act 1974 and Section 186 of the Licensing Act 2003. Again, while I would be happy to go through the reasoning behind the substantive clause as it stands, I hope my noble friend will be content with the reassurance that these are standard provisions, and that she will withdraw her amendment.
Baroness Hamwee
Shucks, I never thought of health and safety. I would not seek to detain the Committee by asking the Minister to give more examples now. Perhaps he will write to me on the second of the amendments with the other examples he has because they sound not entirely different but a little different. He is nodding and I take that as agreement. I am grateful. I beg leave to withdraw Amendment 80.
Lord Sassoon
““final designation” means a designation under section 2 (including any renewed such designation);”
““interim designation” means a designation under section (Treasury’s power to make interim designation);”
Lord Sassoon
“(10) Without prejudice to the operation of section 16 of the Interpretation Act 1978, the repeal by this Part of section 64(1)(e) of the Counter-Terrorism Act 2008 (meaning of UN terrorism orders) does not affect—
(a) any financial restrictions proceedings on an application made under section 63 of the Act of 2008 before the coming into force of this Part, or(b) any proceedings arising out of those proceedings.”
Lord Sassoon
“(4) The amendments made by paragraphs ZA1 to ZD1 of Schedule 1 (amendments of rules of the Court of Judicature (Northern Ireland)) extend to Northern Ireland only.”
Lord Sassoon
“Rules of the Court of Judicature (Northern Ireland) 1980 (S.R. 1980 No.346)ZA1 The Rules of the Court of Judicature (Northern Ireland) 1980 are amended as follows.
ZB1 In the Arrangement of Orders, in the entry relating to Order 116B, after “2008” insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”.
ZC1 In Order 1, after rule 11(l) insert—
“(la) proceedings on an application under section 22 of the Terrorist Asset-Freezing etc. Act 2010, or on a claim arising from any matter to which such an application relates;”.ZD1 In Order 116B—
(a) in the title of the Order, at the end insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”,(b) in rule 1(2)(a), after “the”, in the first place in which it appears, insert “2008”,(c) after rule 1(2)(a) insert—“(aa) “the 2010 Act” means the Terrorist Asset-Freezing etc. Act 2010;”,(d) in rule 1(2)(b), after “the” insert “2008 Act or section 22 of the 2010”,(e) in rule 1(2)(c) for “has the same meaning as in section 65 of the Act” substitute “means—(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates”,(f) in rule 1(2)(h), for “Act” substitute “2008 Act (including that section as applied by section 23(4) of the 2010 Act)”,(g) in rule 4(3)(a)(ii), after “the”, in the first place in which it appears, insert “2008”,(h) in rule 5(1) after “2008”, insert “, or section 22 of the Terrorist Asset-Freezing etc. Act 2010, as the case may be,”,(i) in rule 36(1), after “the” insert “2008”, and(j) in rule 36(2), after “the” in the second place in which it appears, insert “2008”.”
“Civil Procedure Rules 1998 (S.I. 1998/3132)A1 In Part 79 of the Civil Procedure Rules 1998 (proceedings under the Counter-Terrorism Act 2008)—
(a) in the title of Part 79, at the end insert “and Part 1 of the Terrorist Asset-Freezing etc. Act 2010”,(b) in rule 79.1(2)(a), after “the”, in the first place in which it appears, insert “2008”,(c) after rule 79.1(2)(a) insert—“(aa) “the 2010 Act” means the Terrorist Asset-Freezing etc. Act 2010;”,(d) in rule 79.1(2)(b), after “the” insert “2008 Act or section 22 of the 2010”, (e) in rule 79.1(2)(c) for “has the same meaning as in section 65 of the Act” substitute “means—(i) financial restrictions proceedings within the meaning of section 65 of the 2008 Act; and(ii) proceedings in the High Court on an application under section 22 of the 2010 Act, or on a claim arising from any matter to which such an application relates”,(f) in rule 79.1(2)(h), for “Act” substitute “2008 Act (including that section as applied by section 23(4) of the 2010 Act)”,(g) in rule 79.6(3)(a)(ii), after “the”, in the first place in which it appears, insert “2008”,(h) in rule 79.31(1), after “the” insert “2008”, and(i) in rule 79.31(2), after “the” in the second place in which it appears, insert “2008”.”
Lord Sassoon
Lord Sassoon
My Lords, I shall be brief. We have had a good and important discussion in Committee today. One of the most important things we have done is to change the legal test in the Bill, and Amendment 94 gives effect to or reflects that change in the Title of the Bill. I hope the Committee will think that it is an appropriate and fitting summary and conclusion of the debate we have had today. I beg to move.