Terrorist Asset-Freezing etc. Bill [HL]
(13 years, 6 months ago)
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15:57 - Division on Amendment 1 - Ayes: 17 / Noes: 292 - Amendment 1 disagreed.
19:11 - Division on Amendment 23A - Ayes: 122 / Noes: 143 - Amendment 23A disagreed.
Lord Lloyd of Berwick
Lord Lloyd of Berwick
My Lords, I intend to address the amendments that relate to the final order, and I therefore wish to degroup the amendments that relate to the intermediate order.
It seems that the Bill has attracted little public attention, except from our own Constitution Committee, which was very critical of the Bill, and from bodies such as Liberty and Justice, which are even more critical. Liberty and Justice state in their briefing paper that they have four major concerns. The purpose of my amendments is to meet at least some of those concerns.
The purpose of the Bill is to give effect to Security Council Resolution 1373, following the decision of the Supreme Court in the case of Ahmed, which quashed the orders made by the Treasury. The Bill was first drafted by the previous Administration, but that does not matter, because the starting point of its drafting should surely have been the decision of the Supreme Court in the Ahmed case and the light that it throws on the meaning and effect of Resolution 1373.
Reading the Bill in July, my immediate impression was that Ahmed had been very largely ignored. The Bill simply puts on a statutory basis, as was required, the provisions of the Terrorism Order 2006, but ignores the very serious criticisms that the Supreme Court made of the order. To make that good in Committee, I referred to a paragraph in the judgment of the president of the Supreme Court, the noble and learned Lord, Lord Phillips. Afterwards, I wrote to the noble Lord, Lord Sassoon, to explain the difficulties that I had with the Bill, and he was courteous enough to reply. I make no apology for repeating the words of the noble and learned Lord, Lord Phillips, because they are central to what is wrong with the Bill. Having referred to paragraph 1(c) of the critical resolution, he continued:
“Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.
I emphasise those words and the sentence that follows:
“The Resolution nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected of the criminal offences in question”.
I turn now to what the noble Lord, Lord Sassoon, said in the debate in Committee on 6 October. He said:
“The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime”.
I will come back to that. The noble Lord said that such a move would also,
“be incompatible with international best practice and the aims of the United Nations Security Council resolution”.—[Official Report, 6/10/10; col. 122.]
With great respect, that is simply not correct. To make the commission of a terrorist offence the threshold of a freezing order could not be incompatible with the aims of the resolution, since, as I have just read out, that is what paragraph 1(c) specifically requires. States are required to freeze without delay the assets of persons who commit or attempt to commit terrorist acts—nothing less, nothing more. There is no mention anywhere in the resolution of those suspected of committing terrorist acts.
If it is then said that in the passage that I have read the noble and learned Lord, Lord Phillips, was, as it were, on a frolic of his own, then what about the noble and learned Lord, Lord Mance, at page 451 of the judgment? At paragraph 225, he said:
“The relevant wording of Security Council Resolution 1373 … is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons ‘who commit”—
again, the same words—
“or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts’”.
A little later, he went on to say that the wording of paragraph 1(c),
“does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze”—
what we here call a final order. I would add that nor is there any suggestion that the Security Council had in mind “reasonable belief”, as opposed to “reasonable suspicion”.
At paragraph 197 of the judgment, the noble and learned Lord said that reasonable suspicion,
“goes well beyond the strict requirements of Resolution 1373”.
The noble and learned Lord, Lord Brown, said exactly the same at page 196. I need not refer to his language because it replicates that of the noble and learned Lords, Lord Mance and Lord Phillips.
The only justice to have expressed a contrary view was the noble and learned Lord, Lord Rodger, at paragraph 170, but none of the other six judges agreed with him. Therefore, in my submission there is no doubt at all about what the Supreme Court decided. That is put very well in the rather lengthy head note, of which I should perhaps refer to a very small part. It said that the appeals would be allowed because Resolution 1373 was not phrased in terms of reasonable suspicion, so by introducing such a test the terrorism order went beyond what was necessary or expedient to comply with the relevant requirements of the resolution and that accordingly the terrorism order was ultra vires the powers conferred. Therefore, again, there is no doubt about what the court decided. However, when this Bill was being drafted, those responsible for the drafting must have read the speech of the noble and learned Lord, Lord Rodger, but overlooked the speeches of the three noble and learned Lords to whom I have referred and what, on any view, was the actual decision of the court. I hope that, when he comes to reply to this amendment, the noble Lord, Lord Sassoon, will accept that my amendments are not in any way incompatible with Resolution 1373—indeed, quite the opposite. They give meaning and effect to the resolution in precisely the way that the Supreme Court indicated.
As a result of the Second Reading debate, and in particular the speech of my noble friend Lord Pannick, the Government now accept that “reasonable suspicion” is not good enough and instead they have substituted “reasonable belief”. The noble Lord, Lord Rodger, said that it is very difficult to say how much difference there actually is in practice between those two. I think he describes suspicion as being “only a little less stringent than belief”, or words to that effect. Whatever the precise difference between those two, surely it is clear that exactly the same argument, which has led the Government to accept that suspicion is not good enough, must also apply to what they have now substituted; namely, belief.
It is true that belief will catch fewer innocent people than suspicion, which I assume to be the reason for the change, but I doubt whether it will make much difference. The point remains the same: that belief, like suspicion, casts the net too wide; it is far wider than the resolution requires, so that more innocent people will inevitably be caught. That is why it is so important to keep to the words of the resolution and not to change the essential nature and target of the resolution. I put it to your Lordships that that means the final order must be confined to those who have been arrested and charged with a terrorist offence and that is what will be achieved by my amendments, if they are accepted. I beg to move.
Lord Bach
My Lords, to my surprise, I shall be speaking early in these proceedings but I enter the fray at a rather late stage of the Bill because my noble and learned friend Lord Davidson of Glen Cova cannot be here today. However, on this Bill I am not to be allowed gently to put my toe in the water. The House is dealing with important amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, to whom I want to pay tribute. He has a deserved reputation for knowledge and expertise, particularly in this area, going back many years. I have also had the experience of debating with the noble and learned Lord on a number of occasions when sitting on the other side of the Chamber. Although he is always a model of courtesy, good manners and, of course, persuasion, I have no doubt that those who have succeeded me will find his arguments as difficult to deal with as I did. However, I say with the greatest respect, that does not always mean he is right.
Today, we on this side believe that the noble and learned Lord is wrong in limiting final determinations only to those cases where a person has been charged with a criminal offence under Clause 2(2). Why do we think that? In essence, we think that such a step would be impractical and would not work in the real world. Reading through the Committee stage debates, I was impressed by the arguments employed by the noble and learned Lord, Lord Wallace of Tankerness, in dealing with this issue. It seems to us that his arguments are powerful. On 6 October, he said:
“Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences”.
The noble and learned Lord went on to say:
“The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted”.—[Official Report, 6/10/10; col. 150.]
He was advised that 21 individuals in the UK had been convicted for terrorism offences, and that six people within the UK have not been prosecuted. He went on to say that he had asked his officials how many persons outside the UK had been subject to designation for asset freezing, and that the answer was 36, of which 22 were entities and 14 were individuals. He said that it would just not be possible to prosecute them. That is, in essence, what the noble and learned Lord said at the Committee stage of these proceedings.
The trouble is that if one had to charge before making a final designation order, many of those whose assets one would want to make an order against might not be in the jurisdiction, might not be likely to be in this jurisdiction, or might have skipped the jurisdiction as fast as they possibly could. Why should they escape the making of a valuable order if it would assist in the fight against terrorism? That is why we think that in the real world, where a considerable number of the people who one would want to make an asset order against are abroad and not within the jurisdiction, there should be power to make such an order, because if there were not, there would be a serious lacuna in the law.
Lord Lloyd of Berwick
My Lords, before the noble Lord sits down, I hope that he will deal with that point a little more fully as it is quite important. Is he arguing that Clause 1 has extraterritorial effect? If so, that is not stated in the Bill. Indeed, the Bill specifically provides that the offences provision in Chapter 2 is to have extraterritorial effect, but there is nothing in the Bill to suggest that we can serve persons abroad. It applies only to our own nationals and to people within this country in the ordinary way.
Lord Bach
I have to admit that I do not know the answer to the noble and learned Lord’s question. However, I am concerned about the position of a UK citizen who goes abroad and who therefore cannot be interviewed and perhaps afterwards charged with an offence, and who because of that fact cannot have an order made against his assets. As I understand it, having read the letter from the noble Lord, Lord Sassoon, in response to the Joint Committee on Human Rights, that actually happens in real life.
Lord Lloyd of Berwick
I will not take up the noble Lord’s time further, but I shall obviously need to deal with that matter with the Minister who no doubt has given consideration to this important point.
Lord Elystan-Morgan
My Lords, I support the arguments and the amendment tabled by my noble and learned friend Lord Lloyd—not that he needs my feeble assistance in this matter. It seems to me that there are two flaws in the provision before us. Those flaws still remain, even with the amendment suggested by the Government.
The first stage might be called the “trigger” stage: the point at which the authorities have some jurisdiction in this matter. In the original Bill, it was at a point when there was reasonable suspicion, but in the amendment it is when there is reasonable belief. As the noble and learned Lord, Lord Lloyd, has said, those are two separate categories, but they are very close to each other.
Perhaps I may trouble the House a moment or two with this illustration. Let us think of Section 22 of the Theft Act and the provision dealing with the receiving of stolen goods knowing or believing them to be stolen. A judge will tell the jury very simply that even if the defendant is shown to be in possession of suspicion, that counts for nothing at all: there has to be actual knowledge or belief. But the same judge will normally say to the jury that of course there is a point where suspicion becomes so strong and convincing as to amount virtually to belief. I make that point as an illustration of the fact that the two estates practically merge at that point. That flaw remains even if the amendment were to be carried.
The other point is what might be called the boundary point. There are two stages: first, that you trigger the mechanism by way of a belief; secondly, that it must be belief as to some state of affairs. That, it seems to me, can be one of two things. It can either be a belief that a criminal act is in the course of being committed or has been committed; or that there is involvement within the accepted degrees of criminality in that act relevant to the provision. If one is concentrating on what is or is not a criminal act, that is a fairly simple matter to decide. Is the person you suspect or believe to be involved a person who would be a principal in the first or second degree, an aider and an abetter, et cetera, or is he beyond that pale?
If you draw the line at the point of criminality, it is perfectly simple, because you have a defined boundary. You can say, “That is the ne plus ultra of the law's authority in this matter”. If you extend that pale, where are you? Where is the boundary? I remember the very strong argument of the noble Lord, Lord Carlile of Berriew, some weeks ago in this matter. There may very well be a case for extending the boundary beyond that of actual criminality, but there has to be a boundary. That is my point about Clause 2. If you leave the boundary of actual criminality and assume any other boundary, with the greatest respect, you have to define it very closely.
Lord Judd
I listened very carefully to what my noble friend said in his forthright argument. I have always thought that if anyone was the epitome of someone who lives in the real world, it is my noble friend. What is important about the amendment of the noble and learned Lord is that, with all his vast legal experience, he is reminding us of certain basic principles which we seek to defend in our antiterrorism legislation—the character of our society.
I am troubled in what I have seen as a drift over the years by what has happened to the principle of the presumption of innocence. I am not a lawyer, and it takes a certain amount of intellectual courage, if I may put it that way, to rise in a debate such as this when the lawyers are all speaking with so much authority and learning. However, as an ordinary citizen, the principle of the presumption of innocence is very precious, and we need to be certain that, in the terribly difficult task with which we are confronted in preventing terrorism, we do not throw the baby away with the bathwater. The noble and learned Lord’s amendment is not necessarily the best way to pursue the matter, but I seek some very convincing reassurances from the Minister when he comes to reply.
Lord Mackay of Clashfern
My Lords, I am prompted to rise by the noble Lord, Lord Judd. The principle to which he refers is displaced only by a conviction. Therefore, the amendment does not particularly invoke that principle. I would be interested to hear the basis on which the noble and learned Lord, Lord Lloyd, thinks that a person should be charged with an offence under this provision. Of course, I understand the point made from the opposition Front Bench. It may be sufficient if there are assets in the jurisdiction, even if the person who owns or controls the assets is not himself or herself in the jurisdiction. Having listened carefully to my noble and learned friend Lord Lloyd of Berwick, I am left with the question of the basis on which, or the extent to which, one must know what has happened in order to charge someone with an offence under these provisions.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, if noble Lords will permit me, I will speak to this entire group of amendments, although there has not been any significant discussion on some of them. It is perhaps worth summarising what these amendments would do. They would limit final designations to those charged with a terrorist offence of a description within Clause 2(2). They would require any final designation to cease if the charges are dropped or the person is acquitted and require the Treasury to apply to the court to make an interim designation.
Amendments 1 and 3 relate to the Treasury’s power to make a final designation. They require the Treasury to make final designations against only those people who have been charged with a criminal offence falling within the description of terrorist activity in Clause 2(2) for the purposes of the Bill.
Amendments 4, 5 and 6 require a final designation automatically to expire when a person charged is acquitted or charges are dropped before the ordinary one-year expiry. This goes to the heart of what this regime is intended to be about. Although I echo the words of the noble Lord, Lord Bach, in recognising the contribution of the noble and learned Lord, Lord Lloyd of Berwick, and the great wisdom he brings to this, I think he does not go to the complete heart of the rationale of UNSCR 1373, which is indeed preventive. It requires states to take steps to prevent terrorist acts. I should quote further from the resolution. Its paragraph 1(c) states that one of the means of achieving this requires states to:
“Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts”.
The rationale of paragraph 1(c) is to prevent funds, financial assets and other economic resources being used or diverted for terrorist purposes, and the Government absolutely believe that it would not accord with the preventive rationale of the UN resolution if a final designation could be made only in respect of those charged or convicted of terrorism-related offences.
If that were the threshold, the Treasury would not be able to freeze the assets of those in respect of whom there was evidence that was insufficient to bring such a charge, but sufficient to give rise to a reasonable belief on the Treasury’s part that the person represented a terrorist risk—for example, where an interim designation has been made in respect of a person on the basis of a reasonable suspicion and insufficient evidence has come to light during the 30-day period of that interim freeze that would allow charges to be brought, but the Treasury has nevertheless come to a reasonable belief that the person is or has been involved in terrorism and considers it necessary for public protection that the final designation be made. If the Treasury were not able to make a final designation in those circumstances, that would give rise to a risk of terrorism that the requirements of the UN resolution are meant to prevent.
I remind the House that in making these designations, it is necessary that the dual test is met. The other half of the test, which has not been mentioned this afternoon, is a public protection leg. It is the Government’s continued firm belief that a reasonable belief threshold for a final designation would allow the Government to implement effectively the requirements of the resolution.
Lord Lloyd of Berwick
Does the noble Lord accept that reasonable belief goes beyond what Resolution 1373 requires? That is the critical question. It is also the question, which, as I have explained, has been decided by the Supreme Court.
Lord Sassoon
My Lords, the interpretation of UNSCR 1373 can be construed partly on a recommendation of the resolution itself and partly on the interpretation which the Financial Action Task Force has made. It is clear from its guidance that asset freezes should not be limited only to cases where people have been charged or convicted. If we were to accept this amendment, which the Government do not intend to do, it would certainly put the UK outside what is considered by all leading countries through the FATF guidance to be best practice in implementing Resolution 1373. What we are proposing is consistent with the approach taken by other authorities, such as in Canada and New Zealand, of which the noble and learned Lord, Lord Brown, approved in the case of Ahmed.
I agree with the interpretation of the noble Lord, Lord Bach, of the situation. Asset freezing is implemented against individuals and groups in the UK and overseas. At the moment, 22 entities and 14 individuals overseas are the subject of asset freezing. Nothing in Clause 1 limits this. Asset freezing certainly is not limited to people in the UK. People anywhere in the world can be designated, but the prohibitions apply only within UK jurisdictions; that is, to assets that are either held in the UK or by UK persons such as banks overseas. I hope that that clarifies the question of territorial scope.
Lord Lloyd of Berwick
Is the Minister saying, in effect, that Clause 1 has extra-territorial effect? If so, what is his authority for saying that in the light of the fact that the Bill makes specific provision for extra-territorial effect for offences under Clause 11 but no such provision in relation to Clause 1?
Lord Sassoon
Under Clause 1, people anywhere in the world can be designated. To repeat myself again, the prohibitions, on the other hand, apply only within UK jurisdictions; that is, to assets either held in the UK or held by UK persons such as banks overseas. That is about as clear as I can be on the Government’s understanding of the scope of Clause 1. The people overseas who are subject to asset freezes are operating in environments where it is not possible to charge or to convict them clearly of terrorist offences, but where it is necessary in order to disrupt their actual or potential—
Lord Carlile of Berriew
Perhaps I may tempt the Minister into a more direct answer to the question posed by the noble and learned Lord, Lord Lloyd. Surely what he is saying amounts to no; it does not have extra-territorial effect. A clear answer to that effect might be helpful for future purposes.
Lord Sassoon
Not being a lawyer, I was trying to give a clear statement of what effect Clause 1 has in relation to the underlying reality of where it bites. As to whether this does or does not mean that it has extra-territorial effect, I will leave that to lawyers to sort out. However, I am now given advice which says that Clause 33 sets out the extra-territorial application of the offences. Perhaps that will help on this point.
Lord Davies of Stamford
I thank the noble Lord for giving way. He may not be a lawyer, but he is a Minister. He has come before this House to present a Government Bill and therefore must be deemed to understand what the purposes of the Government were when they drafted and brought forward this legislation. I have listened with great interest to the debate with no intention of taking part, but it is clear to me that the Minister is not willing to tell the House whether Clause 1 has extra-territorial effect. The question should be capable of a simple yes or no answer. The Government must know where they are on that whole idea before they come before the House with a Bill.
Lord Sassoon
My Lords, I am trying to get to the substance of what we are seeking to achieve here, which is that if the people are abroad—that is, extra-territorial—but their assets are here, those assets can be made subject to an asset-freezing order. Indeed, if the people or the entities are UK persons, the asset freeze can also bite on them. I hope that that clarifies what we are trying to achieve.
Lord Davies of Stamford
We all know what “territorial” means. It means persons who are in this country or visiting this country, or corporate persons such as banks that are resident in this country but have assets abroad. That is territorial jurisdiction. What we want to know is whether Clause 1 has extra-territorial jurisdiction attached to it. In other words, is the power capable of being exercised in relation to persons and assets that are not connected with the United Kingdom?
Lord Sassoon
My Lords, let me try to say it again. Clause 1 bites on assets that are here—that is, territorial assets—but also enables the Government to freeze the assets of people who are not here, which would be extra-territorial.
Lord Davies of Stamford
So, to be clear, the clause can bite on persons or assets that are not connected with the United Kingdom.
Lord Sassoon
No, my Lords, that is not strictly what I said. Clause 1 can bite on assets that are here that might be under the control of people who are not in the UK. Equally, it may bite on people who are within the jurisdiction of the UK on assets that they might hold elsewhere. I am sorry if that is not clear.
Lord Davies of Stamford
Does Clause 1 have extra-territorial jurisdiction encapsulated within it, or does it not have extra-territorial jurisdiction encapsulated within it?
Lord Sassoon
I am trying to reduce this to what Clause 1 actually does. I do not believe that saying whether it is extra-territorial will clarify the point at all. What I am trying to do is get to the substance of what the clause is intended to achieve. I do not know whether it is being suggested that we should not, for example, be able to freeze the assets of the likes of Osama bin Laden, if he had assets in this country, just because he does not happen to be here. Is that what is being suggested we should be prevented from doing?
Lord Davies of Oldham
My Lords, at the Report stage of a Bill, the Minister is not here to be cross-examined in this way. My noble friend may make one contribution—he has made several—so he certainly ought not to make any more. We are dealing with the Report stage of the Bill and the Minister is replying to the debate.
Lord Stoddart of Swindon
My Lords, on this important amendment, we have heard from the Minister that because he is a layman, as I am, he is not able to answer the questions raised by the noble and learned Lord, Lord Lloyd, in a manner that satisfies those of us who are laymen and thus enables us to vote intelligently if a vote is called.
Lord Sassoon
My Lords, I am grateful to the noble Lord, Lord Davies of Oldham. I hope that the majority of us are clear about the intended scope of Clause 1, so I shall move on to deal with some of the other aspects. However, it is quite clear that the scope of Clause 1 is as intended and required by our obligations under UN Resolution 1373, which is the relevant resolution.
It is worth noting that while the majority of asset-freezing cases in the UK are against those who are charged or convicted of terrorist offences, at the moment there are six cases where it has been necessary, in order to protect the public from terrorism, to act upon the intelligence picture which, for reasons of national security or admissibility of evidence, cannot be used as the basis for criminal charges. However, that does not, of course, mean that those people do not continue to pose a serious risk to national security. Therefore, to limit final designations only to those subject to a criminal charge would exclude such groups and individuals as I have described. This would fatally undermine the preventive and disruptive nature of the asset-freezing regime as well as impact significantly on its operational effectiveness.
Nevertheless, the Government recognise that the Bill as it was introduced raised civil liberties concerns, and it was to address those that we amended the Bill so that a higher final designation threshold of reasonable belief, rather than the previous reasonable suspicion threshold, is being introduced. However, again I stress that there is a twin test, as the test of necessity for public protection also needs to be met. I do not think that the noble and learned Lord, Lord Lloyd of Berwick, drew attention to that.
The noble and learned Lord referred to a final order as giving an indefinite freeze. However, it is important to recognise that freezing orders have to be relooked at whenever the evidence changes or after 12 months. While “final order” is the term in the Bill, we should remember that a final order or a final designation will expire after 12 months unless it is renewed. We have also provided that the legal challenge to any designation should be by way of appeal. The Government continue to believe that the Bill strikes the right balance between safeguarding a person’s rights and protecting the public.
Amendments 9 and 11 require the Treasury to apply to the court to make an interim designation.
Lord Lloyd of Berwick
I have not addressed those amendments yet. I believe they have been degrouped and appear in the next group. I specifically asked before I addressed the House that those amendments, which relate to an entirely separate subject matter—namely, the interim order, not the final order—should be degrouped. If the Minister did not hear that, he can answer what I have to say in due course.
Lord Sassoon
My Lords, the last grouping I have seen from the Printed Paper Office suggested that everything was grouped together. Perhaps I should break off here and ask the noble and learned Lord whether he is prepared to withdraw Amendment 1 and not to move Amendments 3 to 6.
Lord Skelmersdale
My Lords, it would make life a lot clearer for me if the Minister could say whether anything in Resolution 1373 prohibits a state that has signed up to it from producing legislation on the same subject that is more severe than the resolution suggests.
Lord Sassoon
I am not aware of anything in the resolution that prevents legislation going further. The Bill does what is required to properly implement Resolution 1373 but, if it did go further, that would not be precluded by the terms of the resolution.
Lord Lloyd of Berwick
My Lords, the Minister has not fully dealt with the point that what is now proposed goes well beyond what is required by Resolution 1373. He argued that that resolution was intended to be preventive and that what is now proposed is preventive. The resolution states, in paragraph 1(a), that it is intended to be preventive, but it then goes on to say how it is to be preventive by requiring all member countries affected by the resolution to pass legislation to freeze the assets of those who have been charged or convicted of a terrorist offence. That is clear from the language of the resolution. Simply to say that the resolution is intended to be preventive and that the Bill is preventive is not an answer to that point.
The only real answer that has been given was that given by the noble Lord, Lord Bach, when he repeated what was said by the noble and learned Lord, Lord Wallace of Tankerness, in Committee. In particular, he said:
“I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals”.—[Official Report, 6/10/10; col. 150.]
How can that be so under the terrorist orders unless they were intended to be extra-territorial?
That brings us back to the question whether Clause 1 is extra-territorial. The fact that something has happened is by no means proof that it was justified, as indeed is the case with the whole history of this part of the law, which has had to be corrected by the Supreme Court in its most recent decision. Those figures do not convince me at all. We return to the question whether Clause 1 on this particular point is intended to be extra-territorial. It is clear to my mind that it is not, for the reasons that I have already given—namely, that other provisions in this Bill are said to be extra-territorial and this is not included among those provisions. That merely confirms the ordinary rule that we apply all the time that legislation is not extra-territorial unless it is stated to be so.
There is a further question relating to the figures given by the noble and learned Lord, Lord Wallace of Tankerness. If those persons were outside the jurisdiction, how were they notified? Under Clause 3, it is the obligation of the Treasury to notify a person immediately when the final order or an interim order is made. How can we be sure that that is being done when the person is outside the jurisdiction, wherever he may be? The argument that my amendment would in some way cut down a valuable power that the Treasury now has and would not have if my amendment were passed is simply not, with respect, borne out. I am not willing to withdraw the amendment and will take the opinion of the House.
Lord Sassoon
Lord Sassoon
My Lords, the Government’s intention behind this amendment is to clarify that the words “involved in” in the legal tests for interim and final designations do not mean something additional to the activities and conduct referred to in the definition of “terrorist activity”. In Committee, my noble friend Lady Hamwee indicated her concern that use of the term “involved in” could capture people whose conduct did not fall strictly within Clause 2(2) but who were simply associates of people whose conduct did fall within that clause or who were merely innocent bystanders. This was not the Government’s intention, nor do we think that it is the effect. However, by tabling this amendment to make it clear that “involvement in terrorist activity” means no more than the activities and conduct described in Clause 2(2), I hope to ensure that there can be no doubt or further confusion. I thank my noble friend for her intervention in Committee and hope that she and other noble Lords will be minded to support our amendment. I beg to move.
Baroness Hamwee
My Lords, I am extremely grateful to the Minister for this amendment. The Bill creates a number of offences, so I felt that it was important to be crystal clear about the provisions. In my view, the amendment achieves that. I thank my noble friend.
Lord Sassoon
Lord Sassoon
My Lords, these amendments relate to the requirement on the Treasury, where an interim or final designation expires or is varied or revoked, to take such steps as it considers appropriate to bring that fact to the attention of those informed of the interim or final designation.
When the Bill was being discussed before the Committee of the whole House, the noble Lord, Lord Pannick, expressed concern that the wording of what are now Clauses 8(2)(b) and 9(2)(b), which make provision for the duration, variation and revocation of interim designations, did not hold the Treasury to a sufficiently high standard, as it was open to it to consider, in its own subjective determination, the steps to be taken to inform those informed of an interim designation of the expiry, variation or revocation of the interim designation.
We agree that it is important that persons informed of an interim designation are also informed of an expiration, variation or revocation of that designation and, on reflection, we believe that it is appropriate to make express provision in the Bill for the Treasury to be required to take reasonable steps to notify such persons. Furthermore, the same standard should be applied to the steps that the Treasury must take to inform persons of the expiry, variation or revocation of a final designation. Therefore, these amendments, which I hope address the noble Lord’s concerns, amend not only Clause 8(2)(b) and Clause 9(2)(b), but Clause 4(5)(b) and Clause 5(2)(b), which make provision for the duration, variation and revocation of final designations. The amendments have the same effect on each of the clauses, in that they remove the Treasury’s discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that, on an objective assessment, would be considered reasonable in the circumstances. I therefore beg to move.
Lord Pannick
My Lords, these amendments meet the concerns that I expressed in Committee. I am grateful to the Minister for listening and acting.
Lord Sassoon
Lord Lloyd of Berwick
Lord Lloyd of Berwick
My Lords, the purpose of the amendment is to provide for a High Court judge to make the interim designation, not a Treasury Minister. The Minister makes the application for an order, but it is the judge who should make the order. That is the normal course of events when a person’s assets are being frozen, for whatever reason, and it is right, given that the freezing of a person’s assets has all the dire consequences described by the Supreme Court in the case of Ahmed. What is proposed makes the defendant, in effect, a prisoner of the state, as Lord Justice Sedley said in the Court of Appeal and as was repeated in the Supreme Court.
It is normal for asset-freezing orders to be made by judges. That has been the case since long before Resolution 1373. It was the judges, after all, who invented the Mareva injunction in the middle of the 19th century. I may have meant the 20th century—perhaps I was a century out. Such injunctions enabled a plaintiff with a good arguable case to go before the judge and obtain an order or injunction freezing the defendant’s assets, if it seemed likely that those assets would be dissipated before any judgment against him. This happened often—I have granted many such freezing orders—and the system worked. The defendant, for obvious reasons, was not given notice of the application before it was made, otherwise it might have proved fruitless—he would have dissipated the assets before the order was made. When the order was made, he could come before the judge and seek to have the order set aside or varied. That is a well established system, as any judge or lawyer in the House would know. I cannot understand why that procedure should not be applied here.
The Minister was pressed at some length in Committee to give reasons why it should not work in that way. He said that in the end it came down to speed and complexity. However, there is nothing in either of those grounds. As soon as the Minister has grounds for suspicion, he can go before a judge the very next day and get his order. That is what happens as a matter of course in the commercial court, so I see no difficulty on the ground of speed. Of course, the Treasury Minister, when he makes his application, will have to have formulated his grounds, but he would have to have done so in any event, since the defendant, as soon as he has notice that he has been designated and that his assets have been frozen, will certainly go straight to the judge on appeal, as he will now be entitled to do. Since he can do that, and since the Treasury Minister will have to explain at that stage—perhaps the very next day—why the order has been made, clearly the Minister will have to have his tackle in order before the application is made. I suggest that there is nothing in the ground that this cannot be done quickly enough in the ordinary way.
The ground of complexity is equally without foundation. It is absurd to suppose that judges in the Administrative Court cannot understand these things. They have to understand them as soon as the defendant who has had his assets frozen goes to the judge, as he can do the very next day, so why can they not be made to understand them before the order is made by the Minister?
If there is no objection on either of those grounds to the order being made in the usual way, what is the real objection? It seems that this is the way in which it has always been done by the Treasury. Another reason is that the decision is more suited to the Executive and, indeed, is the proper function of the Executive. I regret to say that I cannot agree. Indeed, I hope never again to hear it said that a decision that takes away a man’s right to deal with his property as he thinks fit is more suited to the Executive than the judiciary.
In Committee, I asked the noble Lord, Lord Carlile, whether he could think of any other order of this type that affected the liberty of the subject in this way. He could think only of a control order, which hardly provides a trouble-free precedent for what is proposed in this case. Let us assume that the result of the review being carried out by the Home Office is that we get rid of control orders, as I profoundly hope that we shall. How then can we justify continuing the regime that the noble and learned Lord, Lord Brown, described as “scarcely less restrictive” than control orders and which he said could be “even more paralysing”? I repeat what I said in Committee: I am in favour of interim orders being made on the basis of suspicion. To that extent, the Government are right. However, I am wholly against the orders being made by the Executive rather than by a judge in the ordinary way. I beg to move.
Lord Sassoon
My Lords, Amendments 9 and 11 require the Treasury to apply to the court to make an interim designation. As I set out in Committee, the Government continue to believe that Ministers are best placed to take decisions to impose asset freezes, but it is absolutely right that these decisions should be subject to intense scrutiny by the courts in cases where a person wishes to challenge the asset freeze.
I believe that there are three compelling reasons why decisions to impose asset freezes should be taken by the Executive. First, they are preventive, not punitive, measures taken on the basis of operational advice to protect national security. It is accepted practice for such decisions to be taken by Ministers, who take decisions to impose proscriptions, deprivations of citizenship and exclusions. Secondly, Ministers are then accountable for these decisions to Parliament and the courts. This clear accountability and their broad view of the threat posed mean that Ministers are best placed to weigh the protection of national security with the interests of the designated person. Thirdly, there are strong international comparisons for this practice. The US, Australia, Canada and New Zealand all entrust asset-freezing decisions to the Executive, whereas the noble and learned Lord’s amendment would introduce mandatory court involvement in the making of interim asset-freezing decisions.
With permission, I should like to set out why the Government do not believe, as a matter of principle, that any asset-freezing decisions need to be approved by the courts. I accept, for example, that control orders work differently and are approved in this way, but the Government do not believe that the courts should have the same role in asset freezing, because the circumstances are clearly different. Asset freezes interfere with property rights but they do not impact on human rights to the same extent as control orders, which can impose restrictions on movement, association and communication. Furthermore, in contrast to control orders, asset freezing is not primarily used against people in the UK who cannot be prosecuted or deported. Indeed, as we have already discussed, only about 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and who have not been prosecuted for a terrorist offence. In cases where people are prosecuted for terrorist offences, evidence against them will be brought before a court.
In the case of terrorist groups or individuals overseas, the asset freeze has a less direct impact because it applies only within UK jurisdiction. Overseas terrorist groups and individuals have not challenged their asset freezes in the UK courts and we do not believe that mandatory court decision-making or approval would add any real value in these cases. Indeed, it may even provide groups such as Hamas with a public platform on which to challenge the UK’s operational and foreign policy decisions.
We therefore believe that the right way to recognise the need for proper judicial scrutiny over asset freezing is not to introduce mandatory court involvement but, rather, to make it clear that there is robust court scrutiny of cases where individuals or entities wish to challenge their freezes. The Government therefore brought forward amendments to the Bill to specify that challenges to designations should be on the basis of an appeal, rather than judicial review. Although I realise that judicial involvement is a principle on which certain noble Lords will have strong views—one certainly—I hope that they will be able to accept that the right way forward is to maintain the current drafting of the Bill and I ask the noble and learned Lord, Lord Lloyd of Berwick, whether he is prepared to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, perhaps I may briefly echo my support for the noble and learned Lord’s amendment.
Lord Lloyd of Berwick
My Lords, the Minister gave three reasons why he could not accept the amendment, the first of which was that the measures are meant to be preventive. However, they are also rather more than preventive; they are extremely restrictive of the basic right of any individual to deal with his assets as he thinks fit. He also said that we are not concerned here with human rights. Of course we are; we are concerned with Article 1.
Lord Lloyd of Berwick
Did he not say that? He said that he differentiated this measure from control orders on the ground that we are not concerned here with human rights, but we are, albeit a different provision under the Human Rights Act—Article 1 of Protocol 1, which is that a person’s property cannot be interfered with. We are in exactly the same area as control orders, which is why the judges in the Supreme Court have described asset freezing of this kind by Treasury order as being almost as restrictive as control orders themselves. The noble Lord has not dealt with any of those points. I think that the noble and learned Lord would like to intervene.
Lord Mackay of Clashfern
My Lords, I would like to be sure that I understand. The noble and learned Lord’s Amendments 9 and 11 seem to allow the Treasury to make an application for leave to make an order. They do not provide for the Treasury making, nor suggest that the Treasury makes, the order in the end.
Lord Lloyd of Berwick
My Lords, I entirely agree with the noble and learned Lord. That is the normal way in which it is done—let the Treasury make the order, but only with the leave of the judge. I see no reason why that should not flow. It is an even clearer case than that of Mareva injunctions, where it was the judge who made the order. Either way, that is the way in which we should be dealing with this. I am sorry to say that I fear that it is pointless for me to take this any further, so I reluctantly beg leave to withdraw the amendment.
Lord Pannick
( ) they consider that it is necessary to act as a matter of urgency before proper consideration can be given to whether section 2(1)(a) applies.”
Lord Pannick
My Lords, this amendment addresses the purpose of the interim designation. Noble Lords will be well aware that the Treasury has a power to make an interim designation for a period of up to 30 days if it reasonably suspects that the criteria for making a designation are satisfied. After the 30-day period, reasonable belief is required. I entirely accept that it is appropriate for the Treasury to have this power of interim designation on the basis of reasonable suspicion, but surely it is appropriate for the Treasury to have and to exercise such a power only in those cases where it has not had a proper opportunity to consider and to decide whether the stricter criterion of reasonable belief is satisfied. Amendment 10 would limit the interim designation power to those cases where the Treasury considers that it is necessary to act as a matter of urgency before proper consideration can be given to whether it has reasonable belief in the involvement in terrorism. I cannot see that it would be appropriate for the Treasury to exercise that power of interim designation in any other circumstances. I suggest to noble Lords that it would be highly desirable that the purpose of this interim designation power be specified in the Bill.
My Amendment 13 is grouped with Amendment 10. However, government Amendment 14 meets the concern which I expressed in Committee and explains Amendment 13, which deals with the need for improved safeguards against repeated interim designations of the same person. I thank the Minister for tabling Amendment 14. I beg to move.
Baroness Hamwee
I have tabled Amendment 12 in this group. First, with regard to Amendment 10, I hope we will not hear from the Minister that it is not necessary to put the provision into the Bill because it is the practice—a point I may make later in a different context.
I might have said that my Amendment 12 was substantially the same as the amendments tabled by the noble Lord and the Minister. The point is the same—that the same or similar evidence should not be used to make more than one interim order. I could make the Government’s arguments against proposed new paragraph (b) in my Amendment 12, but I would like to hear them do so.
As regards the second limb of my amendment, it seemed to me that a time limit would be easier to deal with and could be more clearly analysed than relying on whether evidence is the same or substantially so. A time limit, although six months may not be the correct one, would make the matter absolutely clear—no one could argue with it or argue its nuances.
Lord Lester of Herne Hill
I agree with the noble Lord, Lord Pannick, and with my noble friend. I am speaking partly as a member of the Joint Committee on Human Rights, whose report was published on Friday last. We took the most unusual step of publishing our preliminary report before we had seen the Government’s response. I am therefore sure that once the committee, which meets tomorrow, has had a chance to look at this debate, it will be too late to influence what happens in this House, but I hope it may be looked at in the other place.
I shall not waste the time of the House by citing what is in our report as it can be read by anyone who is interested. However, one point at the end of it bears on all these amendments. At paragraph 1.47, we ask the Government to explain why the opportunity is not being taken in the Bill to provide a comprehensive and accessible legal regime for terrorist asset freezing, and therefore to provide Parliament with the opportunity to scrutinise those powers for human rights compatibility, the lack of which so troubled the Supreme Court. That is a general and important point, and it may have to be pursued if not here then in the other place.
Lord Davies of Oldham
Amendment 17 stands in my name and that of my noble friend Lord Bach on behalf of the Official Opposition. We table it today in order to debate what the Government propose to do about people whom they have reasonable grounds to suspect of being terrorists but have not gained further evidence to impose a further interim or final designation. If the Bill is passed in its current form, an interim designation will lapse after 30 days and the person will again have the opportunity to access their assets at potential risk to the public.
The Minister will appreciate the fact that he has had support from the Opposition on crucial aspects of this Bill both in Committee and again today. However, he ought not to countenance the view that we have no anxieties about the legislation, or any actions of the Government that may be related to the legislation if and when it comes into effect. We all recognise the seriousness of the debates we have had on this important legislation. On the one hand, we have clearly heard about the rights of the individual and their dependants, who may be subject to an asset-freezing law. We have heard so eloquently expressed today, in Committee and on Second Reading the anxieties that freezing orders can restrict the ability of such people to live their lives in the way that they would choose. That of course is an encroachment on human rights and we are grateful to those noble Lords who, as members of the legal profession, are able to identify exactly which human rights are involved in this. This Chamber has enough currency with regard to those significant debates of principle for all of us to be well aware of the importance of the issues.
Lord Sassoon
My Lords, I will first address Amendments 12 to 14, which concern making a subsequent interim designation of someone who has already been subject to an interim designation. A common theme of the amendments is the information which can be used to make a further interim designation against the same person. These amendments clarify that the Government can make a further interim designation against the same person only on the basis of significant, not incidental, new information. The Government agree that any new information would need to be significant in order for the Treasury to make another interim designation. Our amendment is tabled to make it clear that a second interim designation cannot be made on exactly the same or substantially the same evidence.
The amendment moved by the noble Lord, Lord Pannick, prevents the Treasury making more than one interim designation of the same person in relation to substantially the same evidence, but not exactly the same evidence. I am grateful to the noble Lord for what I took to be the likelihood of him formally withdrawing his amendment—he is nodding. He also said that he will support the government amendment dealing with that point, and I am grateful for that.
The amendment tabled by my noble friends Lady Hamwee and Lady Falkner of Margravine mirrors the government amendment but, in addition, prohibits the Government making a further interim designation on the same person within a period of six months. I understand that the purpose of this amendment is to ensure that interim designations are not abused effectively to subject someone to a continuous interim designation lasting more than 30 days. In practice, it is extremely unlikely that the Government would be able to make the same person subject to a second interim designation within six months without a final designation being made. This would arise only where we are unable to make a final designation but have become aware of substantial new information showing that a further interim freeze is necessary for public protection. Such a situation would be extremely unusual. Ordinarily, we would expect that significant new information would support a reasonable belief threshold, but it is nevertheless possible. Any second interim designation must, of course, be necessary for public protection as well as not being based on the same information or, as we propose, substantially the same information. We believe that these are the right safeguards and that an arbitrary period during which the second interim designation cannot be imposed is unnecessary. We would not want to deny ourselves the ability to make a further interim designation in these circumstances. If we were so denied, it would leave the public exposed to an unacceptable terrorist threat. We therefore cannot accept this amendment, and I hope that my noble friends will not move it but will support the government amendment.
Before speaking to the government amendment, I will discuss the other amendments in this group. Amendment 10 limits the circumstances where interim freezes can be imposed to when the Treasury considers that there is an urgent need to act before proper consideration can be given to whether the reasonable belief threshold for a final designation can be met. We share the view that interim designations should be made only where necessary. Where the Government have sufficient evidence available at the outset to meet the reasonable belief test, the Government will make a final designation, not an interim one. This reflects that the fact that where we can do so, it is clearly in the Government’s interest to make a final designation rather an interim designation because, first, a final designation lasts for 12 months compared with 30 days for an interim designation and, secondly, because it is not in the Government’s interest to suggest to the designated person and to the outside world that we have only reasonable suspicion of a person’s involvement in terrorism where we in fact have reasonable belief. Therefore, interim designations will be made only in cases where the Government at the time of making the decision have sufficient evidence to meet a reasonable suspicion test but not a reasonable belief test.
The amendment proposes that as an additional safeguard interim designations should be made only where there is an urgent need to act before the Government have considered whether there is sufficient evidence to make a final designation. Let me stress that there is already an important safeguard in place. Interim designations and final designations can be made only where necessary for public protection. The question raised by this amendment is what additional purpose is achieved by requiring not only that interim freezes must be necessary for public protection but that there must also be an urgent need to act. If an urgent need to act is the same as being necessary for public protection, there is no need to add it. If, however, an urgent need to act is something additional to “necessary for public protection”, what situations does it cover that the phrase necessary for public protection does not?
In our view, the Government must be free to impose interim freezes in cases where we have sufficient evidence to meet the reasonable suspicion test and where we consider that it is necessary for public protection. To accept a situation where the Government consider that an interim freeze was necessary for public protection but were unable to act would negate the purpose of making provision in the legislation for interim freezes and would increase the risk to the public from terrorism. For this reason, the Government cannot support the amendment and I hope that the noble Lord will withdraw it.
The noble and learned Lord, Lord Lloyd of Berwick, has not spoken to Amendment 15, so I propose to move straight to Amendment 17. This amendment seeks to clarify that where an interim designation expires, whether after 30 days or on the making of a final designation, this does not prohibit the continued investigation of that person by the relevant authorities. I am grateful to the noble Lord, Lord Davies of Oldham, for reminding us of the underlying purpose of all this activity against terrorism of which this Bill forms a part. The Government must be enabled to deploy all reasonable legislative and other appropriate powers to prevent terrorism. Therefore, it is good to be reminded of that at this point.
However, asset freezes are separate and completely distinct from investigative operations. While investigations may be relevant to the evidential base for making an interim designation, they are not directly linked. Neither the existence nor the expiry of an interim designation prohibits the relevant authorities from pursuing or continuing investigations they determine to be necessary. For that reason, we do not believe that it is necessary to amend the legislation and therefore hope that the noble Lord will not press his amendment.
Lord Pannick
My Lords, in relation to Amendment 10, the Minister emphasises that an interim designation order may be made only where it is necessary for purposes connected with protecting members of the public. Of course, he is correct. The difficulty with that argument is that the same criterion appears in precisely the same form in Clause 6(1), which is concerned with interim designation orders, and in Clause 2(1), which is concerned with final designation orders. Indeed, the criteria in the Bill for making an interim designation order are exactly the same as the criteria for making a final designation order, save that the final designation order may be made only where there is reasonable belief and the interim designation order may be made where there is reasonable suspicion.
My point is that there needs to be in the Bill something that identifies the circumstances in which it may be appropriate for the Treasury to take this, I hope, exceptional step of making an interim designation order even though it only has reasonable suspicion. The Minister, with great respect, has not answered my point that it can surely only be where there are circumstances of urgency and when the Treasury has not had time to deliberate and decide whether there is reasonable belief that it could be appropriate to make an interim designation order.
I am not going to pursue this matter today, but I ask the Minister and those who assist him to read the report of this debate before the next stage just to see whether he may be persuaded that there is something in what I say. He has himself brought forward, helpfully, a number of amendments to clarify the Bill in order to remove potential ambiguities, and I suggest that this is another. For the moment, I beg leave to withdraw the amendment.
Lord Sassoon
Lord Sassoon
Lord Sassoon
Baroness Hamwee
“(4A) An application for a licence for the purposes set out in subsection (4B) shall be dealt with by the Treasury as a matter of urgency.”
Baroness Hamwee
I shall speak also to Amendments 20, 20A and 22. They all concern the licensing regime and I am keen to ensure that there is sufficient in the legislation, as distinct from current practice, to put a direct obligation on the Treasury to deal with licences in the way that we have come to understand it does, and that the obligations are direct and thus do not require what might be described as a slightly more complicated Human Rights Act route.
Amendment 20 would require of the Treasury, if requested by a designated person or another person—I have put that in as an olive branch to the Treasury—that,
“a licence shall, if requested, be granted to enable the designated person or any other affected person to have access to funds or economic resources sufficient for the reasonable living costs”,
both of the person concerned and of any dependants. Subsistence costs are not much to ask for, and they can be conditional. Clause 17(3)(a) provides that any licence can have conditions attached. Amendment 19 would require that an application,
“shall be dealt with by the Treasury as a matter of urgency”,
for the reasons that have already been touched on, and clearly this must be urgent. It almost goes without saying that if all of a person’s assets are frozen, enough should be released to allow for reasonable living expenses.
I understand that the Government say that the Human Rights Act in effect obliges the Treasury to issue licences so that convention rights are not infringed. No doubt the Minister will take this opportunity to spell out exactly what convention rights are in issue and give the Government’s view on the route taken through them to achieve the result I want.
Amendment 20A deals with the costs of legal representation or legal advice. We debated this in Committee and I hope that my amendment has taken the helpful points made in particular by the noble Lord, Lord Pannick, in order to address the possible use of such a provision to evade proper asset freezing controls—or, to put it more colloquially, giving money to dodgy lawyers who might then give it back to the person who is being controlled. So I have referred to “regulation” in the amendment. I am aware that the practice of the Treasury, which is not the same as what is stated in the Bill—although I may again be told about human rights provisions—is generally to license the granting of legal aid without anticipating what might happen to the legal aid budget. I am not convinced that that is sufficiently wide.
Amendment 22 deals with the variation of a licence. I have tabled it in order to seek assurances that the court can vary an order. Clause 27 states that a decision can be set aside. It would again be helpful if the provision were spelt out, although I suspect that I will again be told that there is Human Rights Act protection. Perhaps the Government can tell the House why it cannot be spelt out that an order can be varied rather than simply be set aside. If a decision were set aside, it would allow the designated person to go through the hoops again. However quickly the matter is dealt with, some time will be taken. However much the Treasury takes into account what the court says—it will clearly be under pressure to do so—it is all rather less direct and less clear. I beg to move.
Lord Pannick
My Lords, I support the amendments, in particular Amendment 20A. The Treasury has no interest whatever in controlling expenditure on legal advice and legal representation; its only interest is to ensure that the assets are not used for terrorist purposes. It is important that the uninhibited right to seek legal advice and to obtain legal representation is stated clearly in the Bill and that it is not left to Treasury concession.
Lord Wallace of Tankerness
I thank my noble friend Lady Hamwee for dealing with licensing, which was an important part of our deliberations in Committee. Amendments 19, 20 and 20A would write expressly into the Bill a duty on the Treasury, if requested, to issue licences to allow the designated person and his dependants to access sufficient funds and economic resources to meet reasonable living costs and to pay for legal representation. In the case of living-costs licences, the amendment would place a duty on the Treasury to deal with applications urgently.
As my noble friend made clear, the amendments reflect concern that the Bill does not include a sufficiently clear obligation on the Treasury to issue licences for these purposes and that designated persons and their families are reliant on the good faith or good practice of the Treasury to grant such authorisations. I recognise the concerns that have prompted the amendments. It goes without saying that a designated person must be in a position at the earliest possible opportunity to access funds to meet his or her and their dependants’ living costs and to be able to pay for legal advice and representation in relation to their designation.
However, we do not think that to include in the legislation an obligation to issue such licences is necessary, since the obligation already exists by virtue of the Treasury’s duty to act in compliance with the Human Rights Act. Under Section 6(1) of that Act it would be unlawful if the Treasury acted in a way which is incompatible with a convention right. So, in response to the point made by my noble friend, it is not a question of acting with good grace but of acting under a requirement—an obligation—on the Treasury. It means that the Treasury must issue any licence that may be required to ensure that the affected person’s convention rights are not unlawfully infringed by the imposition of an asset freeze.
In order to secure compliance with this obligation on the Treasury, it routinely issues licences immediately on designation so that designated persons from the outset have access to frozen funds, including all social security benefits to which they are entitled, to meet their day-to-day living expenses. There is no requirement that such licences be requested by the designated person; they are issued automatically as a matter of course. The licences that the Treasury issues are broad and do not restrict the designated person’s access to funds necessary to meet only reasonable living costs. The only controls imposed are those necessary to protect against the risk of funds being diverted to terrorism.
In addition, a designated person or any other affected party may request a licence at any time if access to funds or economic resources is required which is not already authorised under the terms of a licence issued immediately upon designation. The Treasury’s practice is to treat any request for such licences as a matter of priority and, in particular, to deal urgently with requests where the failure to act quickly would result in hardship to the designated person or their family. It is therefore not necessary to impose an express duty on the Treasury to treat such applications as a matter of urgency as the Treasury already has a legal obligation to act in a way which is compatible with the affected person’s convention rights, and it is accordingly the Treasury’s established practice to do so.
My noble friend and the noble Lord, Lord Pannick, attested to the importance of legal expenses. Again, the Treasury is obliged by virtue of human rights law to ensure that it does not act in a way that would impede an affected person’s access to legal representation. To ensure this, there is already in place a general licence permitting the Legal Services Commission to pay legal aid funds to solicitors representing those designated persons who are eligible for legal aid. In addition, the Treasury will ensure that an additional general licence will be issued which authorises third parties to meet the legal expenses of designated persons by paying their lawyers.
There is an overriding obligation on the Treasury to issue licences for legal expenses. Therefore, again, it is not necessary to write such a duty into the Bill. I assure my noble friend and your Lordships’ House that the absence of such an express duty would in no way prevent an affected person from challenging the Treasury in circumstances where a Minister decided to impose a particular condition in a licence, delayed issuing the licence or refused to issue it at all. I repeat to my noble friend that this is not simply a matter of Treasury practice, but of the Treasury honouring the legal obligations upon it.
Lord Pannick
If I understood him correctly, the Minister mentioned legal aid for the designated person and allowing third parties to fund legal representation for that person. My concern is when the designated person has assets of his own which he wishes to spend on his legal representation. I should like to have an assurance that the Treasury will allow the designated person to use as much of his own legal resources as he thinks appropriate in his own legal defence provided that the payment, as Amendment 20A states, is to,
“a person subject to regulation as a legally qualified person”.
Lord Wallace of Tankerness
I said that in addition to a general licence which already exists with regard to the Legal Services Commission paying legal aid funds to solicitors representing designated persons who are eligible for legal aid, the Treasury will ensure that an additional general licence will be issued which authorises a third party to meet the legal expenses of designated persons by paying their lawyers.
The noble Lord, Lord Pannick, raised the issue of whether the person’s own assets might then be used. That would be distinctive from a general licence which, by definition, cannot relate to that of an individual. As I indicated earlier, licences issued in respect of individuals are intended to impose controls that are necessary to protect against the risk of the funds being diverted to terrorism. That is the test. Therefore, an application for a licence—it would have to be a licence for an individual with regard to his own individual circumstances and not a general licence to which I have already referred—would have to be looked at by the Treasury against that test to ensure that that there was not a diversion of funds to terrorism.
Lord Pannick
I am sorry to test the Minister's patience, but if I understand him—please correct me if I am wrong—he is saying that there may be circumstances in which the Treasury would restrict the amount of money that the person who is designated—his own money—may be able to use for his own legal representation. If I understand the Minister correctly, that is because of the risk of the money being diverted to terrorism. But surely, if the money is going to a person who is regulated as a legally qualified person, the Treasury would have to suspect that a solicitor or barrister is involved, in some way, in terrorism. That is a very serious matter that should be taken up with the proper regulatory authorities and not be the subject of restricting the designated person from obtaining the legal representation that he seeks.
Lord Wallace of Tankerness
My Lords, in principle, it would be possible to allow people to spend their own funds on legal expenses. It does not detract from the possibility of a licence being issued, but there are practical reasons why it is not possible to allow frozen funds to be used to pay legal expenses. For example, there would be circumstances where banks would be put in a position of having to determine whether a particular transaction was for legal expenses or not. The Treasury allows this matter to be dealt with by way of licence with the appropriate conditions attached. That would be the way to deal with an individual licence on an individual application and a person seeking to use his own funds as opposed to and distinct from the general licence that exists for legal aid, which I have indicated would be issued with regard to the third-party circumstances that we have already discussed.
Lord Lester of Herne Hill
Will my noble and learned friend tell the House what legal remedy there would be if, in spite of good intentions, the reality was that there was an unfair, unnecessary and disproportionate interference with the right of access to court as a result of the way in which the Treasury was exercising its discretion?
Lord Wallace of Tankerness
My Lords, as my noble friend is aware, provisions within the Bill allow for a decision not to issue a licence with suitable conditions to be challenged. If I may say, this is a circular argument—how do you get the funding to challenge it?—but it is not without remedy.
I was asked whether there would be any restriction on the volume of funds. If the funds are required specifically for the purposes that the noble Lord, Lord Pannick, indicated, that would not lead to a restriction. This is best dealt with, and would be dealt with, on the basis of an individual licence application. Obviously, there would be a remedy there if the person was not satisfied with the terms of the licence that was issued.
The other amendment to which my noble friend spoke relates to the position under Clause 27 for a person affected by a Treasury decision other than a designation-related decision to apply to the court not only for the decision to be set aside but for it to be varied. The amendment would in particular allow decisions relating to licence conditions—the very issue that I have been discussing with my noble friend Lord Lester—such as limits on the amount of cash a designated person could access per week to be varied by the court. The Government agree that the court should have sufficient powers to require the conditions of a licence to be varied so as to ensure that the designated person has sufficient access to funds and economic resources subject to appropriate conditions, but we also believe that the amendment is unnecessary.
Under Clause 27, the court can set aside any licence-related decision made by the Treasury. For example, if the court considers a designated person should be entitled to access a larger amount of cash per week than he is permitted to withdraw under the cash limit in the licence, the court can set aside the Treasury’s decision to impose that cash limit. While it would not be open to the court expressly to write conditions into the licence or rewrite existing conditions, the Treasury is obliged to take into account the reasons that the court gives for striking down a condition in the licence. In practice, the Treasury has immediately revised licences, taking account of the court’s view on what the licence should contain. Therefore, I hope that my noble friend will not press her amendments on the assurance that these are matters not just of good practice but of obligation, which the Treasury obviously takes very seriously.
Baroness Hamwee
My Lords, with that last comment, my noble and learned friend anticipates my saying that I would not wish to see this matter rest on practice but that it is a matter of obligation.
I understood my noble and learned friend to say that a licence to use funds for legal advice or representation is in part to protect the banks. I find that difficult to follow, because I am asking for a licence; I am not asking for the banks to be allowed to release funds simply on the say-so of the designated person or third party that this is the use to which the funds would be put. I make that point quite seriously, although I will not ask my noble and learned friend to come back on it if he does not want to at this point. However, which article or articles does he rely on with regard to subsistence costs? The right to a fair trial leads one very directly to the point of legal advice and representation. It is probably, although I do not want to put words into the Government’s mouth, a combination of other articles that takes us to subsistence.
Lord Wallace of Tankerness
My noble friend is right to say that there are other articles. The right to a fair trial is the obvious one, but there is also the right to use one’s resources under Article 1 of Protocol 1. Also used in these contexts sometimes is the right to family life under Article 8, which might well be relevant in circumstances such as these.
Baroness Hamwee
I am grateful to my noble and learned friend. Although I remain a little uneasy—that is not his fault—I beg leave to withdraw the 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 Administration Act 1992 (false representation for obtaining benefit etc);(b) an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath); or(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations).”
Baroness Hamwee
This was another matter that I raised in Committee, and I have been grateful for the opportunity to discuss it with my noble and learned friend since then. We agreed that I would table an amendment again to enable the Government to give a slightly longer explanation than they were able to at that date.
The amendment would protect a person who does not wish to incriminate himself. The exception of reasonable excuse would apply in this situation; it would be reasonable for a person to say that he will not comply because of the right not to self-incriminate. But this is a general defence to something that is really very specific, and if the Government can take us through their thinking it would be very helpful. On the question of what is reasonable in particular circumstances, one would have to analyse the circumstances so carefully and to such a degree that the concern about self-incrimination might be trumped. That is why a provision that was—as I described it—more straightforward, although longer, would be appropriate.
Lord Wallace of Tankerness
Again, my Lords, I am grateful to my noble friend for raising this point, which we dealt with in Committee and which we have had an opportunity to discuss further. I hope that I can persuade her that the Bill does not really provide the ace of trumps up the sleeve; rather, it recognises—as I think would this House—the importance of the privilege against self-incrimination.
The amendment would replace a qualified requirement to provide information in the absence of reasonable excuse with an absolute obligation, but would provide that such information could not be used in subsequent criminal proceedings. Again, as my noble friend indicated in moving the amendment, the purpose of doing so would be to protect the privilege against self-incrimination.
In Committee, I confirmed to my noble friend that the privilege against self-incrimination was not overridden by the Bill. In particular, I clarified that if a person was concerned that compliance with an information request would infringe that person’s right against self-incrimination, that concern itself would form a reasonable excuse, under what is now Clause 22(1)(a), for refusing to comply with that request.
I appreciate that the amendment is prompted by a concern that “reasonable excuse” operates as a defence, and that it is inappropriate to rely on a general defence in such a fundamental area. I readily appreciate the nature of this concern, but it is misplaced as it is founded on a misunderstanding of how the prohibition in Clause 22(1)(a) will operate. In order for the offence to be committed, the person must have no reasonable excuse for failing to provide the information. If the person decided that providing the information would infringe his or her right against self-incrimination, he or she would have a prima facie reasonable excuse for withholding it and would not have committed the offence.
The onus would not be on the person to raise a defence based on the privilege against self-incrimination. It would instead be on the prosecution to show that the person’s reliance on that privilege was not reasonable in the circumstances. In practice, no prosecution would be brought unless the prosecution considered that there was a reasonable prospect of establishing this, and then it would be incumbent on the prosecution to prove that beyond reasonable doubt. I hope that this further reassurance will permit my noble friend to withdraw the amendment.
Baroness Hamwee
My Lords, with reference to where the onus lies, the Minister’s reply is particularly helpful; I am glad to have the assurance that it lies on the prosecution in that situation. I beg leave to withdraw the amendment.
Lord Pannick
Lord Pannick
My Lords, this amendment concerns the award of damages where a person wins their appeal against a designation order. In Committee, the Minister said, at column 193 of the Official Report, that Clause 26(3), which was introduced by a government amendment in Committee, would ensure that a person who won their appeal against a designation order would be able to claim damages from the court. He was responding to an amendment tabled in Committee by the noble and learned Lord, Lord Davidson of Glen Clova.
I expressed concern in Committee that Clause 26(3) does not clearly confer a power on the court to award damages, even though it states that the court may make such order as it sees fit. The basis of my concern is that it is a general principle of law that to establish in court that an administrative act is unlawful because it is unjustified or based on a mistaken view of the relevant legal power does not of itself normally confer a right to damages for the victim, even if they are able to show that the unlawful act has caused direct and foreseeable damages. To claim damages, it is normally necessary for the victim of an unlawful administrative act to show that the official acted in bad faith or recklessly. I am concerned that, without express provision in the Bill, the courts may well apply this general principle.
Lord Lester of Herne Hill
I spent much time on Bills seeking to persuade the previous Administration that the statute book should state the law as clearly as possible. I remember most recently, on the Equality Bill, that I managed to persuade the previous Government—with the help, as I recall, of my noble and learned friend Lord Wallace of Tankerness—that statutes ought to say what the law is. The summary of the position by the noble Lord, Lord Pannick, is absolutely accurate. There are problems in administrative law over the circumstances in which compensation or damages are payable. The Bill, at present, does not explain those.
Presumably the Minister will remind the House that we are dealing with Article 1 of Protocol 1; we are dealing with circumstances in which property has been taken away from somebody. In an appeal, I suppose it would be said that that was an interference that should give rise to compensation. In other words, the European convention and, I suppose, the Human Rights Act—which require this legislation to be read, if possible, compatibly with the convention rights—would give rise to a right to compensation or damages in appropriate circumstances. However, it is not satisfactory to leave this to a Pepper v Hart statement by the Minister, rather than to have some appropriate language—whether that of the amendment of the noble Lord, Lord Pannick, or something else—so that the individual does not have to go to lawyers to discover what the situation is, but can tell from the statute itself what the law is.
Even if the amendment of the noble Lord, Lord Pannick, is not accepted by the Government, I hope that by Third Reading some appropriate language will be inserted so that the Bill will state the law as it is intended to be, rather than relying on Pepper v Hart. In that case I had the good fortune to appear on behalf of the successful party, with the noble and learned Lord, Lord Mackay, dissenting. I sometimes wonder, with respect, whether he was right in his dissent. The case gave rise to the possibility that Hansard will always be used to make good what the statute does not properly state itself. Although I hope I was right and the House was correct in the outcome of Pepper v Hart, it could set a bad example to Ministers if they did not amend Bills to state the law correctly.
Lord Mackay of Clashfern
Noble Lords can hardly expect me to remain silent while that remark is made. I support the amendment moved by the noble Lord, Lord Pannick. So far as I can judge, it seems to be appropriate in its wording. If the Government were willing to accept the principle, they might wish to consider the precise words. There is also the question of whether the same principle should not apply in relation to Clause 27, where a judicial review provision is in question. The remarks of the noble Lord, Lord Pannick, apply as much to judicial review as to any other form of order in administrative law. Therefore, it is worth considering—if the Government decide to accept this amendment or something like it—whether something of the same kind should go into Clause 27 as well. It is obvious that if the Government think this is something that should happen, it is unwise to leave it on Pepper v Hart. However good the noble Lord, Lord Pannick, thinks that decision is, it would be rather better to put it in express provision, which in any event saves a certain amount of litigation.
Lord Bach
Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,
“such order as it considers appropriate”,
includes damages. If the answer to that question is yes, can there be any reason not to put that in the Bill in express terms, for the reasons stated by the noble Lord, Lord Pannick?
Lord Wallace of Tankerness
My Lords, in responding to an amendment moved by the noble Lord, Lord Pannick, I feel somewhat guilty as I do not feel able to go so far as my noble friend Lord Sassoon in offering concessions. However, I welcome the noble Lord’s amendments as they have given us the chance to have a very useful discussion. Notwithstanding the points that have been made about the adequacy or inadequacy of Pepper v Hart statements in providing clarity, I hope that the noble Lord, Lord Pannick, will feel that sufficient clarity is provided.
This amendment relates to the debate that we had in Committee about the avenues available to a person who has suffered loss as a consequence of an asset freeze to obtain compensation. During that debate, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Davidson of Glen Clova, and my noble friend Lady Noakes were particularly keen for the Government to indicate their position on this point, and I shall try to do so.
The amendment of the noble Lord, Lord Pannick, would provide that the court can, in relation to appeals by designated persons against designation-related decisions, award damages if and to the extent that the court thinks it just and appropriate to do so. The noble Lord has tabled the amendment following our discussion on the scope of the orders available to be made by the court under Clause 26(3). In that discussion I drew the Committee’s attention to that provision and indicated 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”.—[Official Report, 6/10/10; col. 193.]
I was not suggesting—as my noble friend queried; and I am grateful for the opportunity to set the record straight—that it would be open to the court to award damages,
“simply for the invalid nature of the designation”.
As the noble Lord rightly observed then, and repeated tonight, that would be contrary to,
“the general principle of … administrative law … that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action”.—[Official Report, 6/10/10; col. 194.]
It is not the Government’s intention to overturn that principle. However, it is the case that a designated person appealing a designation-related decision under Clause 26 can in certain circumstances make a damages claim in connection with that appeal. I apologise to your Lordships’ House if I did not make that distinction clear.
To clarify the effect of Clause 26(3), the orders that a court may consider appropriate in connection with an appeal of a designation could include, for example, an order to revoke the designation, or the renewal of it, or an order to uphold the designation. It would be open to a designated person to include in these, or subsequent, proceedings claims for damages under the Human Rights Act, as I believe my noble friend Lord Lester indicated, such as breach of the person’s right to enjoyment of property under Article 1 of Protocol 1 as a consequence of being invalidly designated, or—as I indicated in relation to the previous amendment— breach of Article 8, the right to respect for private and family life.
There have been relatively few legal challenges to designations, but where such challenges have been made a number of them have either included Human Rights Act damages claims or have given rise to separate Human Rights Act damages claims. Those claims which are being pursued are at a very early stage and as yet there has been no judicial determination of any of them. It may also be possible—although I appreciate that this would be more difficult—to found claims in tort or delict.
My noble friend Lady Noakes raised in Committee concerns about persons other than the designated person suffering loss as a result of a designation. Nothing in this Bill is intended to change the existing grounds—whether as a matter of the law of tort or delict or under the Human Rights Act—on which anyone affected by an asset freeze, whether the designated person, such person’s spouse or other family member, or any other third party, can claim damages against the Treasury if they believe that they have suffered loss as a consequence of an unlawful asset freeze.
In relation to loss suffered by both designated persons and persons other than designated persons, I should like to make one further crucial point. The purpose of the asset-freezing regime is to prevent the diversion of funds and economic resources for terrorist activity. It is the Treasury’s policy as far as is possible and consistent with that aim to license the use of funds and economic resources. The licensing regime successfully mitigates the impact on designated persons, their families and other third parties of an asset freeze. The general presumption is that a licence will be granted unless there is a risk that the transaction carries a risk of funds being used or diverted for terrorist purposes. Where third parties are affected, the power to grant a licence is exercised so as to ensure that, so far as is possible, no loss is suffered by any third party. For example, where payments to a family member or other third party would be prohibited because the designated person would thereby receive a significant financial benefit—for example, the discharge of a debt owed by the designated person—the Treasury can license such payments. Similarly, payments by a designated person to a third party in respect of, for example, contractual debts owed by the designated person to that third party are capable of being licensed.
I have heard the request that it would be useful to put something in the Bill. My concern is that although that might to some extent allow the individual to look at it and not necessarily contact a lawyer—however, I rather suspect that in many cases a lawyer will be quickly contacted—it might not cover the ingenuity of lawyers. If you put something in the Bill, it might seem to be limiting whereas lawyers might use their ingenuity to come up with other grounds under the Human Rights Act under which a claim could be made in the context of appeal proceedings or other proceedings. I shall certainly reflect on what has been said but I—
Lord Lester of Herne Hill
I am very grateful to the Minister. However, I would still like him to explain the practical disadvantage in accepting the amendment of the noble Lord, Lord Pannick. Would it not be of great advantage to the principle of reasonable legal certainty if this part of the Bill stated the law as it is? If not, what other means can the Government think of to bring home to people what the true legal position is, without having to consult a lawyer?
Lord Wallace of Tankerness
My Lords, my concern is that it would not necessarily provide the degree of certainty which my noble friend seeks. It could leave open all sorts of possibilities as to the grounds on which claims might be sought. However, important points have been made in the debate. I wish to reflect on them without commitment, but I am concerned that the proposed remedy might raise as many questions as it is intended to resolve. Therefore, I hope that the noble Lord will withdraw his amendment.
Lord Pannick
I am grateful to the Minister. I am also very grateful to the noble and learned Lord, Lord Mackay of Clashfern, and to the noble Lords, Lord Lester of Herne Hill and Lord Bach, for their support.
I fear that the wording of Clause 26(3) will inevitably lead to considerable uncertainty. When persons win their appeals against designation orders—and some of them will—they will inevitably ask for damages and the court will have to decide whether Clause 26(3) embodies a discretion for it to award damages. I am concerned that the House should understand clearly what the Government’s position is. In Committee, Amendment 46 moved by the noble and learned Lord, Lord Davidson of Glen Clova, required the Bill to state expressly:
“The Secretary of State shall, by order, provide for the compensation of persons who have suffered loss as a result of an incorrect designation”.—[Official Report, 6/10/10; col. 190.]
The noble and learned Lord told the Committee that the purpose of his amendment was 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”.—[Official Report, 6/10/10; col. 191.]
There was some support in Committee for such a provision.
In responding on behalf of the Government, the Minister said:
“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 … we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages”.—[Official Report, 6/10/10; col. 193.]
However, I understand the Minister today to be saying something very different, which is that the court would enjoy the right to award damages only if the individual were able to establish some other legal basis for the award of damages—a breach of the Human Rights Act or a tort. If I have misunderstood the Minister, I should be grateful if he tells me and the House. This is a very important matter and it is absolutely vital that the House understands precisely the Government’s position and intention on this, and that the Bill is clear, so that those who read the legislation know exactly where they stand. I respectfully ask the Minister to think about this matter again over the next few days, to read the debate and, indeed, the debate in Committee, and consider whether it would be possible to come up with some words to clarify the position.
I entirely accept the point made by the noble Lord, Lord Bach, that this is not an appropriate matter on which to divide the House—certainly today—but I would be grateful if the Minister would think about the matter again. On that basis, I beg leave to withdraw the amendment.
Lord Pannick
“(5) In section 67(3) of the Counter-Terrorism Act 2008 (rules of court about disclosure)—
(a) in paragraph (c) after “that” insert “subject to paragraph (ca) below”; and(b) after paragraph (c) insert—“(ca) that in relation to a final designation, the material disclosed by the Treasury on which they rely is sufficient to enable each designated person to give effective instructions to a person appointed as a special advocate to represent that party’s interests;”.”
Lord Pannick
My Lords, Amendments 23 and 24 are designed to give statutory effect, in the asset-freezing context, to the principle established by the Appellate Committee of this House in the case of AF (No. 3). I declare an interest—although it is not really an interest—in that I was counsel for the claimant in that case.
The principle stated by the Appellate Committee is that where a person is the subject of a preventive measure such as a control order, which severely restricts his basic liberties, that person must be given sufficient information about the allegations against him to enable him to give effective instructions to his lawyers or the special advocates to enable them to respond. The demands of national security, important though they are, cannot outweigh the basic right to know the case against you and to have the opportunity to answer it. The reason for that, of course, is that a right of appeal to a court is of very limited value if the subject of the order does not know the essence of the case against him.
I am surprised that the reply from the Minister, the noble Lord, Lord Sassoon, to the chairman of the Joint Committee on Human Rights disputes that the AF principles apply in the context of asset freezing. I am surprised for three reasons—first, because a recent judgment of the European Court of Justice in the Kadi case specifically applied the same principles to asset freezing. Secondly, I am surprised because a judgment of the Court of Appeal earlier this year in the Bank Mellat case applied the AF principle to a Treasury decision to prohibit the financial sector in this country from entering into business with the claimant—an Iranian bank. There is very little distinction in principle between asset freezing and the financial restriction proceedings that were an issue in the Bank Mellat case. The third reason why I am surprised that the Government do not accept that the AF principles apply in this context is that the Supreme Court judgment in Ahmed, which led to this Bill, accepted that asset freezing is a very grave interference with a person’s rights, comparable to a control order.
Amendment 23 would amend the relevant provision of the Counter-Terrorism Act 2008 so as to require rules of court to ensure that the court’s otherwise absolute duty of non-disclosure in asset-freezing proceedings, where national security so requires, is expressly qualified by a positive duty to ensure sufficient disclosure to protect the right to a fair hearing. Amendment 24 is consequential.
These amendments, like many amendments that your Lordships have debated today, are required to avoid uncertainty in courts, delay and expense in the implementation of legal rights. The House may be aware that 27 special advocates pointed out in their recent written evidence to the Home Office counterterrorism review that there have been continuing difficulties in practice in securing the right to a fair hearing in control order cases. These amendments are designed to make clear the primacy of the duty of fairness in this context, as in the other context, consistent with what the courts have repeatedly stated, and to avoid the uncertainty that will inevitably otherwise result. I beg to move.
Lord Lester of Herne Hill
My Lords, I have put my name to the amendment and I wish to speak briefly in support of it. I shall not add to anything that the noble Lord, Lord Pannick, has said, because I perfectly agree with his entire analysis.
Regarding the evidence given to the noble Lord, Lord Macdonald, QC, in his review of counterterrorism powers, the noble Lord, Lord Pannick, referred to 27 members of the Bar who gave evidence. Eleven of them are extremely distinguished Queen’s Counsel, as are the juniors who act for both sides, who cannot be accused of being soft on terrorism or anything of that kind. I do not know whether the Minister has seen their devastating criticism and attack upon the special advocates and control order regime.
Like the noble Lord, Lord Pannick, I do not agree that there is a distinction to be made between this regime and control orders for the reasons which he has given, including the judgment of the European Court of Justice in the Kadi case. I can deal with the amendment briefly, because the report of the Joint Committee on Human Rights published at the end of last week deals with this matter in detail, from paragraph 1.25 to paragraph 1.35. The committee will meet tomorrow and will need to consider this debate and the Minister’s letter to the committee, referred to by the noble Lord, Lord Pannick.
I hope that the House will be assisted by our having brought out the report, unusually before the Minister has had a chance to reply. Paragraph 1.35 states:
“We recommend that consideration be given to amending the legal framework to ensure that it secures the ‘substantial measure of procedural justice’ to which the subject of an asset-freeze is entitled under both Article 6 ECHR and the common law … we recommend that consideration be given to amending the Bill in four specific ways”.
Those are then set out.
Whatever happens today, this will not go away. It is extremely important, and it is my wish that both Houses take steps to ensure again that our statute book avoids the need for unnecessary litigation. Unless a significant change is made, whether in this House or the other place, it will be inevitable that this will be pursued not only in the context of counterterrorism, but also in the context of this aspect of counterterrorism; namely, asset freezing. Therefore, I hope that even at this late stage in the process in this House consideration can be given to what is in the report of our committee.
Lord Mackay of Clashfern
My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).
Lord Carlile of Berriew
My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.
Lord Bach
My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.
I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security—it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he sums up the debate. What are the differences between the two regimes, especially in relation to the special advocate system?
I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.
Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.
Lord Wallace of Tankerness
My Lords, as the noble Lord, Lord Bach, indicated, this has been a short but fundamentally important debate. As he also indicated, it focuses on the challenge and dilemma of balancing the interests of liberty and those of security. I know that the noble Lord, having relatively recently been in government, had to do that himself. These are not easy issues to determine. It is important to recognise, too, that they are issues with which the Government constantly wrestle. It is fair to say that in its preliminary report—I welcome the fact that we have that report to help us today—the Joint Committee on Human Rights acknowledged the amendments that were moved in Committee and welcomed the Government’s willingness to consider the human rights issues raised during the debate at Second Reading and their amendments to the Bill, which are designed to improve the balance between national security and human rights in the asset-freezing regime. This is an issue of which Ministers are acutely conscious as they constantly try to ensure that the balance is correct.
Amendment 23, moved by the noble Lord, Lord Pannick, seeks to create a new subsection within Section 67 of the Counter-Terrorism Act 2008 that would apply to the content of the court rules about disclosure in financial restrictions proceedings and to court rules made in relation to challenges to decisions under the Bill. The amendment would require the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give instructions to the special advocate. As has been reflected in some contributions to the debate, the form of words is based on the European Court of Human Rights judgment in A, which was applied by your Lordships’ Judicial Committee in AF and Others to the stringent control orders that it was considering. The effect of the amendment is to apply AF (No. 3) to challenges to final designations.
As was foreshadowed in the letter of my noble friend Lord Sassoon to the committee, the Government do not support this amendment, and I shall explain why. I start by stressing a fundamental point on which I know there is common ground all round the House. Designated persons must have the full protections afforded to them under Article 6 of the European Convention on Human Rights; namely, the right to a fair hearing.
Section 67(6) of the Counter-Terrorism Act 2008, which is imported into the regime for dealing with asset freezing, is absolutely clear that nothing in that section, or in rules of court made under it—they include provisions relating to the Treasury’s disclosure of information only to the court and a special advocate—requires the court to act in a way that is inconsistent with Article 6 of the ECHR. It is important to emphasise that the judge also has an important role to play in challenging the closed material and in weighing the impact that non-disclosure has on the fairness of the proceedings. The court determines whether material should be withheld, and 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 is disclosed.
The Government and the legislation are absolutely clear that Article 6 rights apply in full to asset freezing. Therefore, it would be inaccurate to say—and I do not think that this was suggested—that advocates of the amendment support Article 6 rights while the Government do not. To make it clear, not only do the Government support Article 6 rights but those rights are there in the Bill by reference to the Counter-Terrorism Act 2008.
I hope that there is broad agreement that the legal position regarding the application of AF (No. 3) principles to asset freezing has not been fully determined by the courts. That is probably a matter of fact but it is clear that different views are being expressed in the House this evening regarding the applicability of the decision in AF (No. 3) to asset-freezing designations. Of course, the courts have determined—indeed, it was determined in the case itself—that AF (No. 3) principles apply to stringent control orders and to financial restrictions proceedings under the Counter-Terrorism Act 2008. That was the subject matter of the case to which the noble Lord, Lord Pannick, referred. However, the courts have not yet determined that AF (No. 3) principles apply to asset-freezing cases. The Government’s view is that it would certainly be wrong to say that legally there is no room for doubt on this.
I shall now seek to address the points that the noble Lord, Lord Pannick, made in moving the amendment. When the Bill was discussed in Committee, I indicated that in the Government’s view the principles do not apply to asset freezing because, although I do not in any way wish to minimise their significance or importance, asset freezes do not have the same impact on individuals as stringent control orders, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008. Perhaps I can assist the noble Lord, Lord Bach, who asked me to identify some of the distinctions. Asset freezes are not of the same nature or magnitude of interference, because they restrict the rights to property and indeed can be modified or alleviated by licences, whereas control orders restrict people’s liberty, communications and movement. As I said, I do not in any way diminish the seriousness of asset-freezing designations but, in our argument, their impact is not of the same magnitude as that of stringent control orders. However, it is open to the courts to determine whether the Government’s position is to be challenged.
It is certainly possible to draw a distinction in the case of Kadi, which was determined by the European Court of Justice. That judgment concerned the process followed by the European Commission in listing Kadi, and the Government would certainly argue that it had no direct bearing on the process to be followed by the United Kingdom Government in applying asset freezes domestically against persons believed to be involved in terrorism. We believe that the European Court of Justice judgment in Kadi is separate from the question of whether AF (No. 3) principles should apply to asset freezes. Likewise, in the Bank Mellat case, which was determined in May this year, the court’s rulings on disclosure were specific to the cases concerned and there was no general ruling on whether AF (No. 3) should apply in asset-freezing cases. The court ruled that the application of AF (No. 3) applied in the context of financial restrictions imposed against the Iranian bank, but the circumstances of such financial restrictions, where the Treasury issued a direction that the UK financial sector must cease dealings with the bank, were very different from those where an individual is subject to an asset freeze because of his alleged involvement in terrorism. Therefore, I do not think that a direct read-across of the court’s ruling is right, applying the specific circumstances under consideration to the freezing of terrorist assets, where different considerations may well apply.
Lord Lester of Herne Hill
I apologise for interrupting the noble Lord, but does he not agree that his valiant attempt to distinguish the control order regime and the asset-freezing regime runs against the following difficulty? The European Court of Justice in Kadi (No. 1) and Kadi (No. 2) took an extremely robust position with regard to a UN framework, emphasising the extreme deprivation that could result from asset freezing and the need for adequate safeguards. The Court found that the European Commission’s second attempt to produce adequate safeguards had failed. Would that not give advocates using arguments of that kind in our courts a very hard time indeed?
Lord Wallace of Tankerness
My Lords, I can almost hear the noble Lord advancing that case. The Government’s position is simply that it is possible to make a distinction where there was a challenge to the listing in the Kadi case. It is not a position that we would wish to concede; it is on all fours with the circumstances that would arise in an asset-freezing case.
Should the courts decide that AF (No. 3) applies to asset-freezing cases, any court rules that cut across this would be read down to ensure compatibility with the ruling. Therefore, it would not be necessary to amend the legislation. In any event, it would be premature to prejudge such a determination by the courts and now to require the disclosure of sensitive information that could damage national security or the detection or prevention of crime.
The question is how best to deal with a situation where the applicability of AF (No. 3) principles is not given and is uncertain. Advocates of the amendment argue that we must remove the uncertainty by giving the Government specific obligations in this statute in the terms of the amendment moved by the noble Lord, Lord Pannick. As I believe is abundantly clear, the Government’s approach is different. As I said in Committee, and as the Prime Minister announced in July, the Government will review the whole matter of the use of intelligence material in judicial proceedings and will issue a Green Paper next year. I say in response to the question from the noble Lord, Lord Bach, that the intention is for the Green Paper to be published in the summer of next year. In response to his second question, this will allow time for a judgment to be handed down in the lead case—the employment tribunal case of Tariq—in relation to whether AF (No. 3) applies more widely than stringent control orders. I understand that that case will be heard by the Supreme Court in January and we expect a judgment in the spring. It would be wrong to pre-empt the Green Paper, although there will obviously be an opportunity for reflection on that judgment before the Green Paper is published.
It would also be wrong to adopt a piecemeal approach to this important issue. As we have heard eloquently expressed in the debate this evening, the issue of special advocates and the use of intelligence material cuts across a number of areas. If we try to address these important issues in an ad hoc way in individual pieces of legislation dealing with different aspects, we risk ending up with different requirements in different pieces of legislation. I know that that is not what many noble Lords wish to happen in this area of legislation. They want to see greater coherence and consolidation, not fragmentation and a piecemeal approach. I could not have agreed more with my noble friend Lord Lester when he said that this matter will not go away. The Government readily recognise that. As I indicated, our commitment is to address the issue. The fact that we are willing to do that is a testament to the importance that we attach to it.
The Green Paper will aim to develop a framework for ensuring full judicial and non-judicial scrutiny of intelligence and wider national security activities in line with the Government’s commitment to individual rights, to the rule of law and to properly protecting national security. It will need to address concerns about the United Kingdom’s ability to protect intelligence material, including that shared by foreign partners, and to bring forward proposals to reconcile the evolving legal position—duly informed, as it will be, by Strasbourg and Supreme Court rulings—with modern intelligence practices. We will try to ensure such a coherent and consistent approach. I hope that noble Lords will welcome and support that approach and see it as a recognition not just of how important this issue is but also of just how difficult it can be to reconcile two very important but at times competing requirements. Although I recognise that noble Lords have raised necessary and important issues with this amendment, I hope that the noble Lord will agree to withdraw it.
Amendment 24 would amend Civil Procedure Rule 79.2. That rule requires the court, when dealing with certain cases, to read the overriding objective of the Civil Procedure Rules—in other words, to deal with cases justly in a way that is compatible with the requirement to ensure that information is not disclosed contrary to the public interest, while ensuring that it has the material available to properly determine the proceedings. This relates to a similar range of arguments to those that we have just gone through. It comes from a belief that the ruling in AF (No. 3) should apply to challenges to designations under the Bill.
For two reasons, I do not believe that the amendment is necessary. As I have already made clear—I shall not rehearse the reasons again—the Government do not accept that AF (No. 3) applies to asset-freezing challenges. It is for the court to decide the ambit of AF (No. 3) on a case-by-case basis. Even if ultimately the court found that AF (No 3) applied to challenges to asset-freezing decisions, we do not think that there would necessarily be a conflict between the disclosure requirements of AF (No. 3) and the public interest requirement of Rule 79.2 of the court rules. Rule 79.23 makes it clear that the public interest provision is without prejudice to the need for the court to satisfy itself that the material available to it enables it properly to determine the proceedings. Furthermore, as I have indicated, Section 67(6) of the Counter-Terrorism Act 2008, which is imported into this Bill, simply states:
“Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
In short, the Government do not believe that Rule 79.2 would cut across any fairness obligation required by the court to meet Article 6. It is an important reminder of the need to deal carefully with sensitive material but it does not constrict the proper determination of the proceedings.
I recognise that serious and important issues have been raised. I have sought to address, although I suspect that I have not done so fully, the concerns expressed by noble Lords. We hope that this will be considered fully. My noble friend Lord Lester mentioned the special advocates, as did the noble Lord, Lord Pannick, who expressed his views very robustly. There will be an opportunity to deal with that in the context of a Green Paper, which will be a way to move forward in a coherent rather than a piecemeal manner. Therefore, I ask the noble Lord to withdraw his amendment.
Lord Pannick
My Lords, I am grateful to noble Lords who have spoken in the debate for the support that they have given these amendments and to the Minister for his detailed response. I sympathise with the noble and learned Lord because, with his brief, he faces the substantial difficulties of inviting the House to accept that the legal position is not as it has been stated by the European Court of Human Rights in the A case, by the Appellate Committee of this House in AF (No. 3), by the Supreme Court in Ahmed and by the European Court of Justice in the Kadi case. For all those judges essentially to agree that basic fairness is required when the Government impose a substantial detriment, whether a control order, asset freezing or something similar, on a person—and I forgot to mention the Court of Appeal in Bank Mellat—poses a certain difficulty for the Government. As we are all rightly concerned about saving public money, I respectfully suggest to the Government that it would be a considerable waste of public money to litigate again the question whether the AF principles apply in the context of asset freezing.
The noble and learned Lord mentioned the pending case of Tariq in the Supreme Court, which is concerned with whether the AF principles apply in an employment context. The case concerns alleged race discrimination. Whatever the Supreme Court decides in that case, it is most unlikely to throw any light on the issue that we are debating here and it is most unlikely to conflict with what has been said previously.
Having made all those points, I recognise that we shall not take this matter further today. I hope that the Government will reflect on what has been said—not by me but by other noble Lords who have spoken—that they will reflect on the range of judgments that have been given and that they will recognise that, if they want to impose orders of this sort, they have to comply with basic principles of fairness that involve telling the person concerned why, in essence, the detriment is being imposed on them. I have no doubt at all that the House will return to this matter on a future occasion, if not future occasions. For today, I beg leave to withdraw the amendment.
“( ) A person may not be appointed under subsection (1) unless—
(a) the Secretary of State lays a report before both Houses of Parliament which recommends the person and sets out the process by which he was chosen,(b) a Minister of the Crown tables a motion in both Houses to approve the report laid under this subsection, and appoint the person, and(c) such a motion is agreed by a resolution of both Houses of Parliament.”
Lord Judd
My Lords, I shall speak also to Amendments 23B, 23C, 23D, 23E and 23F. This afternoon, there have been references to the Joint Committee on Human Rights and in its report, which was published last week, it dealt with the issue covered by this amendment. In welcoming, as I do, the moves which the Government have made to try to strengthen the human rights aspects of this proposed legislation, the committee has firmly stuck to its view that the propositions which I am putting forward are the right course to take.
I take this opportunity to pay a very warm tribute to the noble Lord, Lord Carlile of Berriew, for the role which he has fulfilled as reviewer of other aspects of terrorism legislation and its implementation. He has set extremely challenging and high standards, which we should all applaud. I have not agreed with his conclusions all the time, but no one can question the commitment and expertise which he has brought to the task. He has certainly proved himself capable of making very rugged and outspoken statements when he believes that the time has come for him to do so. It is good that there is provision for a reviewer. I am really glad that the Government have made that provision in legislation.
We all know that in this extremely difficult and challenging issue of terrorism, the extremists and the terrorists operate best when there is a considerable constituency of ambivalence about what they are doing. I very much doubt whether anyone in this House would not take the most firm and uncompromising stand against what they are doing. We are clear in our own minds. However, we have to recognise that if people suffer injustice, if people are alienated, if the extremists can get to work on what they can portray as an absence of absolute transparency in all that is being done, that plays into the hands of the terrorists and their chiefs. Therefore, as in other issues we have been debating today, it is not just a matter of what is right, but of what is necessary if we are to be effective in our campaign against terrorism. We simply have to take the issue of hearts and minds seriously. That is why transparency is so crucial. What therefore is proposed in these amendments is that, following the Government’s good sense in making provision for a reviewer, the reviewer should be able to be seen, and should be seen, to be independent in all that is undertaken.
I have genuinely commended the noble Lord, Lord Carlile, for his work in adjacent contexts. I hope he will not mind my saying that I think it has been done despite the arrangements that have been made to support him and within which he has operated, not because of them. I believe that his position would have been even stronger if he had been able to be seen as totally independent in all his support and operational arrangements. That is what the amendment proposes. I hope that the Government will accept that its intention is to help them to make a success of their provision.
Therefore, perhaps I may briefly cover the points. First, we think it would be sensible that the reviewer reports to Parliament. Secondly, Parliament should certainly approve the arrangements for the appointment of the reviewer and indeed the appointment of the reviewer himself. Thirdly, the secretariat—the people who work with the reviewer—should be independent of government. There is room for doubt to be exploited if people can say, “But, look, the reviewer is utterly dependent on the implementing department for support in executing his task”. The noble Lord, Lord Carlile, has not fallen into the trap but we might not always have him, and therefore what is put into the Bill needs to provide for all circumstances. Finally, it is sensible that the appointment is for a finite period so that there can be no question of people saying that it has become part of the ongoing furniture and is no longer bringing a freshness and acute objectivity to the task.
I believe that the task of reviewer for the effectiveness of our campaign against terrorism is crucial. If we are going to have a reviewer, the logic is to ensure that he cannot be portrayed by anyone as anything but demonstrably independent of government machinery. I beg to move.
Lord Lester of Herne Hill
My Lords, I have added my name to the noble Lord’s amendment because I am a member of the Joint Committee on Human Rights and we dealt with the issue in paragraphs 1.41 to 1.44 of our latest report. Indeed, together with the noble Lord, Lord Judd, I was a member of the previous Joint Committee on Human Rights, when we made similar recommendations.
In our report, we paid tribute to the Government—it is important that tributes should be paid—for the way in which, during the passage of this Bill, they have moved in a human-rights compliant direction. One of the many ways in which they have done so, as we report at paragraph 1.42, relates to the two additional safeguards that have been included:
“First, there is a requirement that the Treasury report quarterly to Parliament about the exercise of the powers. Second, that the Treasury is required to appoint a person to conduct an annual ‘independent review’ of the operation of the asset-freezing regime, reporting to the Treasury which lays a report before Parliament”.
The Joint Committee then states at paragraph 1.43:
“Safeguards which enhance democratic accountability for the exercise of counter-terrorism powers are clearly to be welcomed from a human rights perspective. Our predecessor made a number of detailed recommendations for improving such safeguards, including that the post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament, on the grounds that a reviewer with a supporting secretariat within Government might suffer from a perceived lack of independence from the Government”.
The committee therefore recommended that,
“consideration be given to amending the Bill so as to give Parliament the power to appoint the proposed independent reviewer and for the reviewer to report directly to Parliament, in line with earlier recommendations concerning the statutory reviewer of terrorism legislation”.
Like the noble Lord, Lord Judd, I pay tribute to my noble friend Lord Carlile for the work he has done as reviewer. Nothing I am about to say should be taken in any way as a criticism of his fine work. In previous debates, I have made the case that important public appointments should be made at least with the advice and consent of Parliament, not only by the executive branch. I am not suggesting that this is an occasion when that principle needs to be slavishly followed, but it is one that has a great deal to commend it. In other states that I can think of in Europe and beyond, it is regarded as good governance.
I am not in favour if disfiguring Bills with too much unnecessary detail, and there may well be other ways than this amendment of accomplishing the objective indicated by the noble Lord, Lord Judd: that is, to enhance public confidence in the perceived independence of the reviewer.
When for 18 months under the previous Government I acted as the independent unpaid adviser to the right honourable Jack Straw, Minister for Justice, one of the requirements on which I insisted, and which the Cabinet Office strongly resisted, was that I should not have an office in the Ministry of Justice and that I should not have a secretary appointed within the ministry. The Cabinet Office could not understand why I took such a strong position. I said, “Well, I am meant to be the independent adviser and it seems to me important that, as a matter of public confidence, I do not have staff from, or an office located in, the ministry”. In the end, as I said that I would not do the job otherwise, the Cabinet Office had no alternative but to comply.
I appreciate the reasons why that has not happened in the case of my noble friend Lord Carlile, and I can see arguments of convenience about security and confidentiality that would point in the other direction. However, if I am allowed, I would say to the noble Lord’s successor that, whatever the fate of these amendments, I very much hope arrangements will be made to enhanced the perceived independence of the reviewer in order to enhance public confidence. It does not have to be done in the way suggested in this amendment: it can be done administratively, provided that sensible arrangements are made. So I support the objective of the amendment, and although I have no doubt that it will not be pursued to a Division today, I hope that the principle that the Joint Committee on Human Rights has made several times will be appreciated within the Executive. I am sure that they will appoint an admirable person without the need for parliamentary intervention, although I would prefer some parliamentary involvement in the process. That person, whoever is appointed—it is a matter of judgment and character—needs to act in a way that will enhance public confidence.
Lord Carlile of Berriew
My Lords, I fear that it would be negligent if I did not take a little bit of the House’s time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously—I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them.
I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said.
I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary’s Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since.
I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government—whom I support politically, at least, although I am neutral for this purpose—will also make mistakes. It is a very difficult area.
The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the question of independence, I should say that it really depends whom you speak to. I fear that I may have been cited on most sides of almost every argument about counterterrorism. If that is evidence of independence—and it may well be—I am satisfied with that position.
About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug —9-12 Bell Yard. My chambers, as one would expect of a good set of barristers’ chambers, has been prepared to put up with that inconvenience—possibly because I was head of chambers for six and a half years of the time that I have been doing it.
I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room—it even has a sofa, which is quite hard to get these days in the Home Office—which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure.
I confess to your Lordships that on my not-very-frequent visits to that office—perhaps, on average, I go there about once a fortnight—I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice.
The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year—my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet—should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so.
Lord Davies of Oldham
My Lords, I rise briefly to congratulate my noble friend on the way in which he moved this serious and important amendment for the House to consider and triggered a constructive and significant debate. I favour the amendment. It has not always been the case in recent years that I have favoured Back-Bench initiatives from my party, but one of the liberating factors in opposition is that one is able to reform old friendships after the obvious discipline that imposes itself in government. I am happy to indicate from the Front Bench how much we welcome the way in which my noble friend has acted in this respect and has presented this amendment today.
First, I want to make it absolutely clear that none of us has anything but admiration for the way in which the noble Lord, Lord Carlile, has carried out his duties. He has described with great accuracy this evening the nature of the role and its challenges, but his reputation has run before him over these many years. The fact that he identifies that he has spent nine years and 25 days in the role shows the degree of service that he has done to the nation in a very challenging role. I emphasise that in so far as we see merits in the amendment, that is in no way a criticism of the way in which the noble Lord carried his duties—far from it. We are great admirers of the way he discharged those responsibilities.
I also recognise what the noble Lord, Lord Lester, generously said. The Government have included two additional safeguards with regard to this legislation, on which they are to be congratulated. That is part of the reason, but not the sole reason, why we in the Opposition have been moved to offer support throughout the bulk of the debates in this House. We recognise that the Government are facing challenging issues in identifying this legislation accurately. On one point I disagree with the noble Lord, Lord Lester. I am not sure that an amendment of this kind can be described as potentially disfiguring the Bill. If the amendment brings a dimension to the Bill that meets the objective that my noble friend emphasised in his introduction—taking the hearts and minds of our people with us on combating terrorism—we need the confidence of the nation in the processes that we put into place.
Lord Lester of Herne Hill
I do not think that the amendment to which I put my name does so. I was simply seeking to say that in general one should not include unnecessary detail of a disfiguring kind, but I support the amendment, which is why I put my name to it.
Lord Davies of Oldham
I am delighted to hear that. I apologise for my slight misinterpretation of the noble Lord’s advocacy this evening. I thought that he put that point in to indicate that it might detract from the Bill when, of course, I assumed that he signed the amendment with the wholehearted determination to support it as far as he was able. He certainly largely did so in his contribution this evening.
As I indicated, I want to speak only briefly with regard to this issue. We find merits in the amendment, and we hope that the House does too.
Lord Sassoon
My Lords, it has been an interesting discussion. I am grateful to the noble Lord, Lord Judd, for recognising that the Government have put in this independent review process. We have modelled the provisions for the independent reviewer on those in the Prevention of Terrorism Act 2005, which we believe provide an effective model for the statutory, independent asset-freezing reviewer. The tributes that have been paid to the work that my noble friend Lord Carlile of Berriew has done, and to which I add my own, are the strongest possible endorsement of the framework we have used and on which we have modelled the provisions in the Bill.
Amendment 23A requires the independent reviewer to be approved by Parliament. We have heard very clearly from my noble friend Lord Carlile that independence is not to do with the detail of the appointment process, but the state of mind and the way in which the reviewer goes about his or her business. Of course, the independence of the reviewer is absolutely essential as part of the safeguards and will be a principal objective of the appointment that is made. But that does not mean that we believe it is necessary for Parliament to approve the independent reviewer. That would be a significant departure from standard practice in these matters. The appointment of a reviewer by government reflects a longstanding principle of ministerial responsibility about appointments. It is something for which Ministers are directly accountable to Parliament and to the public. Parliament will of course be able to scrutinise the work of the reviewer and hold him or her to account through existing mechanisms; for example, through parliamentary committee scrutiny.
Amendment 23B requires the reviewer to have a secretariat that is independent from government to assist him in the task. For reasons, including those given by my noble friend Lord Carlile of Berriew, we do not consider this to be a necessary provision. The independent reviewer will be provided with a secretariat and administrative support in this case, as necessary, by the Treasury. As my noble friend has explained, in practice these matters are not easy. He has set out a model that suited his way of working. It combines, under exactly the same provisions as we are proposing in this legislation, his operating partly in his own offices and partly, for matters of security and confidentiality, within, in his case, the Home Office. That does not appear to have impacted adversely in any way on his ability to carry out the role. Indeed, he has explained why in aspects of it it has been necessary to have the provision of a secretariat of civil servants, whose work he has warmly commended. We do not see why this should be any different for the independent reviewer of the asset-freezing regime.
To make the obvious point, creating a new and independent secretariat would mean a significant and ongoing cost. It is important, especially at the present time and in the present financial climate, that the best value for money is achieved, consistent with all the other objectives that we need to meet. We believe that the Treasury can provide the necessary secretariat without affecting the independence of the review or creating further significant costs.
Amendments 23C, 23D and 23E would replace the independent reviewer’s obligation to report to the Treasury with an obligation to report to Parliament. The annual reports and other ad hoc reports from my noble friend Lord Carlile of Berriew have always been provided, as he has eloquently explained, in the first instance to the Home Office to check factual accuracy, and to check that they do not inadvertently include any classified material and cannot be published. Similarly, asset freezing also deals with highly sensitive and classified material. We therefore believe that a similar process is appropriate.
Given that the independent reviewer will have access to all relevant papers and evidence, including highly classified intelligence reports, and on occasion material that is being considered as part of a separate criminal prosecution, it is only sensible to ensure that published reports do not include classified or sub judice material. Parliament could certainly not undertake such a check. But I can assure noble Lords that the Government will not seek to influence in any way the outcome of these reports. The reports will be provided to Parliament as quickly as possible and will be made available to the public.
Finally, Amendment 23F states that the appointment of the independent reviewer will be for five years and that it will not be renewable. We do not believe that it is necessary to have a statutory limit on the length of time that a reviewer should remain in post. There may be valid reasons why a reviewer should leave at an earlier stage. Equally, there also may be valid reasons why a reviewer should stay in post for longer, such as the expertise that a reviewer builds up over time of the legislation that is being reviewed, which may be invaluable to the review process.
The Government consider it essential that the report is impartial and transparent. As I said in Committee, the independent reviewer will be free to review any aspect of the asset-freezing regime. I would therefore hope that the noble Lord will be prepared not to press his amendments.
Lord Judd
I thank the noble Lord for that full reply and appreciate the tone in which it was given. I also thank everyone who participated in this debate and, if I may, I have a special word for the noble Lord, Lord Lester, who supported the amendment. I say that because it is fascinating to watch even one of my oldest friends—we were at the same school—grappling with the realities of his intellectual and legal convictions, and the cause of coalition politics. I understand his predicament and think that he spoke as positively as he could. Obviously I am glad that my noble friend Lord Davies commended the amendment. It is always nice to feel that one’s Front Bench is behind an amendment of this kind.
I have also a warm word of thanks for the noble Lord, Lord Carlile, for sharing so much of his experience and insight. We are fortunate to have someone of his calibre doing the job. But that is the point: he emphasised that it is the rugged independence of the reviewer that matters. We are making provision in this legislation for a future in which we do not know who the reviewers will be. They may not all be as robust and at times combative as the noble Lord has proved himself to be. The advantage of what we are proposing is that there will be a system that gives resources to and backs the reviewer in order to enable him or her to play the part as fully as they should.
The noble Lord and others spoke about costs, and of course one recognises that there may be costs involved. We are talking about justice in the face of the most terrible and sinister provocation, and of preserving the essence of what makes our system of justice, of governance and of democracy worth defending. If we really believe in these things, there will be a price. But we cannot simply trim still further because by doing so we give a victory to the extremists. What I have always been determined to see in our approach to these matters is that we do not inadvertently give the extremists a victory—a score. That is why it is so important that we demonstrate to the world and to others that we are proud of our system of justice and our freedoms. We know that in the context of terrorism it is necessary to introduce special measures, but in doing so, we must be determined to ensure that all can see that we will keep the diminution of our systems of justice as we understand them to an absolute minimum, and that what is being done can be justified. That is crucial and therefore the importance of the independence of the reviewer cannot be overstated. It is vital. In that sense, what the amendment proposes is a system that will enhance and demonstrate that independence.
This is a vital issue. I do not want to see the processes of rationalisation beginning to erode it all over again. That is how we slip and how, inadvertently and step by step, incrementally we give the terrorists and the extremists a victory. By doing so, the society we will end up with will not be the society we are trying to protect. From that standpoint, and because it is such an important issue of principle, I wish to test the view of the House.