Grenfell Tower

Baroness Hamwee Excerpts

Thursday 22nd March 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Baroness, Lady Lister, very much indeed, and I would be interested in talking to her further about that meeting. I know that Leilani Farha, the UN rapporteur, visited—we were, I think, unaware that she was coming and I do not think that she contacted the department or the Government. That said, in relation to the noble Baroness’s question, the Grenfell survivors Minister, Nick Hurd, certainly meets frequently with members of Grenfell United and with Grenfell survivors and bereaved. We are engaged in meeting the community. Civil servants from the department are still there on a permanent basis and are engaged in finding out what people’s needs are. As was indicated in the Statement, with the wide support of political parties here and in the other place, the welfare of the bereaved, the survivors and the community is central to the Government’s philosophy and policy.

[Baroness Hamwee (LD)]

My Lords, the Minister talked about rebuilding trust and clearly recognises that as an issue. I understand that there are anxieties and rumours locally that the total number of deaths has been withheld and that inaccurate information is being given out—in other words, that there were many more fatalities than have been reported. I also understand that the forensic work being undertaken is of a very high quality. It has been described to me as “heroic” by someone who is aware of the details, which I am not. Can the Minister encourage as much sharing of information as is possible? Of course there are sensitivities, but I hope he will agree that, however brutal the truth may be, truth is better than rumour.

[Lord Bourne of Aberystwyth]

I thank the noble Baroness, Lady Hamwee, very much indeed, and I understand where she is coming from. First of all, in relation to the death toll conspiracy theories, if I can put it that way, these were certainly very much in existence early on. I think they have abated somewhat. There is certainly no substance to this. It is unimaginable that there would be some sort of cover-up of the number of dead. This just has not and would not happen under any government or local authority, or in any set of conceivable circumstances in this country. That has not happened.

Could I join the noble Baroness in the tributes she paid to those who have been engaged in forensic work? The trauma and the horror of having to do something like that is something that leaves the rest of us in awe. That has been very hard. While identification of the dead has not slowed the housing issue, it has slowed some of the progress that could be made. It has contributed massively to the trauma that people have felt there.

I agree with her about transparency. Wherever we can be transparent, I think the disinfectant of sunlight is the best way forward. Of course, there are sensitivities as she rightly says. There are also considerations with regard to any criminal proceedings, which would be another sensitivity. But certainly, wherever we can provide information and be open about information in response to any inquiry or in making Statements, we are seeking to do so.

Secure Tenancies (Victims of Domestic Abuse) Bill [HL]

Baroness Hamwee Excerpts

Report stage (Hansard): House of Lords
Tuesday 6th March 2018 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I am very pleased to be able to support these amendments. I shall speak briefly to Amendment 4 but will say a bit more about it when we come to the next group of amendments. The key issue here is to remove the notion of risk. Talking to Women’s Aid, it is clear that, in practice, having to prove risk creates unnecessary hurdles, and I can do no better than quote what it says in the briefing that it has provided for us:

“Women’s Aid has reported widely on the issues with a ‘risk-based’ approach to domestic abuse; static risk assessments fail to capture the changing risk and harm in these cases, and a risk based approach fails to provide appropriate support or meet the needs of victims assessed as ‘low’ or ‘medium’ risk”.


It makes the point that it places an even greater premium on good specialised training to be able to adequately assess risk in these circumstances. Therefore, I am delighted that the Minister was willing to make that change. As well as creating equivalence with the next amendment, I think that it improves the Bill overall.

[Baroness Hamwee (LD)]

My Lords, my name is added to these amendments. I congratulate the noble Baroness, Lady Lister, and thank the Minister for all the work that they have done.

I have just written a short piece on scrutiny and have written mostly about the need to engage with stakeholders and practitioners—people who know what they are talking about. Although I take great delight in asking whether “and” should be “or” and so on, that is not really the purpose of scrutiny. However, this seems to be a very good example of those who have experience of real situations working together to anticipate where there might be problems if the legislation is not changed, as it has been. Therefore, I congratulate them and feel rather privileged to have been able to tack my name on to these amendments.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, as this is my first contribution to the proceedings on the Bill today, I draw the attention of the House to my interests listed in the register—in particular, the fact that I am a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.

Amendments 1 to 4, proposed by the noble Lord, Lord Bourne of Aberystwyth, and supported by my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Hamwee, have my full support. The amendments in themselves might look quite small but they provide a clarity that is needed following examination of the Bill by noble Lords. A number of conversations have been held outside the Chamber to get the wording right.

I thank the noble Lord, Lord Bourne, for the clarification at the start of his contribution and for the information that he has provided to the House today. Generally, his remarks are very welcome and I thank him for them. I also thank him for his personal support in getting the Bill on to the statute book to correct an error in the Housing and Planning Act 2016. As I have said before, it is not a good piece of legislation—I think it is an example of “act in haste and repent at leisure”. There have been one or two other problems with that legislation, as the noble Lord knows. I am very happy to support these amendments.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 6 raises the issue of victims of domestic violence being charged a fee to provide evidence by way of a letter or some other acceptable form of confirmation to the authorities that they are a victim of domestic violence. That fee can range from £75 to £100 or even more. I think that it is completely wrong.

Certainly some GPs charge this fee. I accept that it is a minority of GPs, but it is wrong for any GP to charge it. I raised the issue both at Second Reading and in Committee, and I do so again today.

When the amendment was discussed in Committee, I had support from noble Lords around the House, and I am grateful to all noble Lords who spoke in that debate. I read again yesterday the response of the noble Lord, Lord Bourne of Aberystwyth, to the debate in Committee. He agreed with me that charging a fee to a victim of abuse who is seeking evidence of their abuse to access a service is,

“far from an ideal situation”.—[Official Report, 24/1/18; col. 1058.]

I would go further than that and say that, in 2018, when domestic violence is centre stage—no longer an issue not talked about but out in the open, with perpetrators rightly condemned and brought to justice for the disgusting crime that it is—to charge victims a fee to provide evidence to prove that they are a victim so that they can get help is unacceptable.

The good news that the Minister gave the House the last time he spoke on the issue just does not go far enough. I note that the noble Baroness, Lady Bertin, has tabled a Question on domestic violence that will be answered in the next day or two. I will raise the issue again if I can get in at that Question Time.

If you have been a victim of a crime and been beaten, distressed or frightened, it is not good enough to say that you can get around the issue of a fee by putting in a subject access request for your medical records. I have no idea what you would do with your medical records: I assume that you get a big pile of papers giving all your medical history and stuff. So for me it would be my blood pressure, and I am a diabetic so there would be issues about my feet, but I am not sure that medical records would say that you had been beaten, that you have a cut or that you have been bruised. Would they actually say that you had been a victim of domestic violence? If not, we are again in the situation where you might hand your medical records to the authority who might say, “Yes, it says you have a bruise to the head; it does not say that you have been a victim of domestic violence. You might have fallen over”. So there are some issues even with using the records. Will they actually deliver what the noble Lord says?

I think we should be very clear that no victim should ever be charged for a letter or any other form of evidence to say that they are a victim of domestic violence. We need to ensure that that happens. I accept that it is about the doctors’ contract and I am pleased that that is going to be reviewed in April, because it is certainly an issue. I accept that it is the Department of Health, not the noble Lord’s department, but this is an issue that we cannot let go: it is totally wrong that anyone is charged a fee to prove that they are a victim of a crime.

[Baroness Hamwee]

My Lords, the Minister spoke at the outset of this afternoon’s proceedings about the Data Protection Bill—the Act as it will soon be—and data subjects’ rights of access to information. I share the concerns of the noble Lord, Lord Kennedy, about the extent of notes that doctors may keep. I have no expertise in this area but I know that I can sit in a doctor’s surgery and witter on for seven or eight minutes and it comes out, perhaps, as a reference to a consultant in two lines. I assume that the two lines are much closer to what is kept in the notes than my seven minutes of semi-articulate complaints.

I am also concerned about whether doctors, GPs particularly, will feel able to keep notes about their assessment, which might be just a guess, as to the reason for the injuries which they are considering. Some may, some may not, and some may be concerned about the implications for them if they get it wrong. Again, it is not something that I have come across, but in other walks of life, such as universities, where teachers may keep notes about students’ attainments or otherwise, I understand that there are concerns not to say anything that might come back to bite the writer of those notes. I certainly do not think it is something we can assume will be covered by the data protection provisions that will shortly be coming into effect.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Kennedy, for bringing this amendment forward and the noble Baroness, Lady Hamwee, for her contribution on Amendment 6, which deals with the subject of GP letters. In fact, noble Lords will appreciate that the amendment is drawn much more widely—it refers, I think, to other professionals as well. I am sure that the noble Lord did this quite deliberately; it would apply, for example, to solicitors’ letters and accountants’ letters as well, where there are obviously rather different considerations, because we have a more direct route in relation to GPs’ contracts.

As I said previously and I am very happy to repeat, the noble Lord is quite right to say that the wording is far from ideal; that is absolutely right. I accept the point that the noble Baroness has just made, and was made by the noble Lord as well, about the data. It is hard to know without seeing doctors’ notes: sometimes it may cover the case very well, sometimes it may not. I also take the noble Baroness’s point that doctors may be reluctant to commit to writing something relating to domestic abuse, but I suppose that that could also apply in relation to the letter itself. It is certainly a consideration, I accept that. The early sounding I had when I raised this matter with the Department of Health was that it has the same view that we do. It considers that this issue needs looking at. I have not yet had a detailed response to the points I made but I am very happy to share the general thrust of that as soon as I do, because this is a very reasonable point and one that I am sure the vast majority of GPs would go along with.

On the basis that I undertake to update the House on the discussions that we are having with the Department of Health—recognising, as the noble Lord indicated, that it is the lead department on this—I ask the noble Lord to withdraw his amendment.

Secure Tenancies (Victims of Domestic Abuse) Bill [HL]

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 24th January 2018 Lords Chamber

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord, Lord Kennedy, for bringing forward this issue, which he raised at Second Reading. I also thank other noble Lords who participated in the discussion on this amendment.

I agree that charging a fee to a victim of abuse who is seeking evidence of their abuse to access services is, let us say, far from an ideal situation. The noble Lord, Lord Kennedy, set out the issue very fairly. Although the amendment is drawn more widely, and does not mention doctors, the point is valid in relation to doctors, for example: as has been the case under Governments of all persuasions, doctors may charge for anything outside the contract relating to NHS services. That is why we are in this position, and obviously policy responsibility rests with the Department of Health and Social Care.

However, I think I have some good news for noble Lords who participated in this debate and who are rightly concerned about this, as others will be too. As data subjects, which we all are under the Data Protection Act, individuals can lawfully ask to be provided with their medical records, without charge, thus obviating the need for a letter altogether. I appreciate we need to get that message out there so people are aware of it, but on that basis, I do not think that this would represent a problem.

I will ensure that I get an update on this issue for noble Lords. Because the amendment was tabled only last night—so it was not late as such; it was within the time limit—we have not had long to investigate the issue and had to seek assistance overnight. We are investigating further with the department, but it appears that this issue should not be a concern; if it is, then it is for the Department of Health and Social Care to discuss further. But I agree that in this sort of situation it would be quite wrong—morally wrong, if not legally wrong—to charge victims in this regard.

I also spoke privately to the noble Lord before today’s sitting, and with that assurance, I hope he feels able to withdraw this amendment.

[Baroness Hamwee (LD)]

My Lords, I apologise to the Committee for arriving so late after amendments to which I had my name, as I was at the Joint Committee on Human Rights. I will not ask the Minister to respond to this, but just put it into the pot. I think he is saying that a person who has been the subject of abuse needs to go and consult a doctor, perhaps, and so get it into the records that advice and assistance has been sought, and then after that ask for the records to be released. I say that because other people involved in this work will look at what has been said and might have comments on it as well as the noble Lord and the Department of Health and Social Care.

[Lord Kennedy of Southwark]

I thank the noble Lord for his response. I am sorry I tabled the amendment fairly late, and will bring the issue back much earlier on Report. I hear what he says about the use of a subject access request to get medical records, and I am sure he is right. But imagine you are a victim of a crime, distressed and being told you need some evidence. Asking for your medical records may not be the quickest way to get it. Then what do you do? Do you take a big file down to the housing office? I see the point he is making but we need to find a simpler way.

I agree with the noble Lord that it is morally wrong that a victim goes to a doctor and is then charged £50, £75 or £100 to have a letter written. That is just wrong. I am pleased with what he said, but we need to go a bit further with this, as it is not right. I will certainly bring the issue back on Report. The noble Lord is right that there are other professions that do something similar, but it is a particular problem with GPs. People have the right to have a note written and not be charged for it. I thank the noble Lord for what he said, and I will happily withdraw the amendment at this stage, but I will raise the issue again on Report.

Secure Tenancies (Victims of Domestic Abuse) Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th January 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, this is a short but significant Bill, and from these Benches we welcome it. I thank both the Minister for his introduction and the noble Baroness, who is a redoubtable campaigner—the combination of energy and intellectual rigour cannot be beaten.

The term “secure” in the Title applies more widely than in the technical sense of the type of tenancy. The emotional security of one’s home plays a very big part in most of our lives. When I first became involved in the work of the domestic violence charity Refuge, I was quite shaken by two thoughts: first, what it must be like to distrust the person whom one should most be able to trust and, secondly, what it must be like not to feel safe in one’s own home? As the Minister has said, children as well as partners are affected by insecurity and instability.

It is a pity that we use the term “victims”. It should not imply, although it often does, some sort of passivity in the face of ill-treatment. That is certainly not the case in this context. We must not underestimate the strength needed to leave an abuser and to talk about a situation. This is not done lightly or quickly, so I welcome this legislative response to one housing situation.

I have some questions, which to a considerable extent reflect some of those already asked by the noble Baroness, and one fundamental observation: that this Bill is about the person abused and often her children—“her”, as the noble Baroness said—having to move, and not the abuser having to move. I understand that there will probably be considerable difficulties regarding rights to the tenancy of the abuser and evidence, but I am unhappy about the imbalance that we are recognising here.

I know that my noble friend Lord Shipley will ask why the obligation is on local housing authorities and not on housing associations. I therefore ask the Minister whether the obligation can be satisfied by a local housing authority procuring that a housing association grants an assured tenancy. How does the local housing association fulfil the obligation if it has no stock of its own? Do the Government envisage reciprocal arrangements between authorities—for instance, authority A making some provision for a person from authority B in return for an old-style secure tenancy for someone coming from authority A? I cannot really see how this could work, because, by definition, there will be a problem with housing stock, which is the elephant in the Chamber today.

Are the Government satisfied that the scheme can work if, for reasons of safety, the abused person needs to be in a different location from the abuser—indeed, to be somewhere unknown to the abuser? The noble Baroness raised a particular lacuna. I would ask as well whether the Bill applies if the victim is not a joint tenant of the original housing. I am a little unclear about whether someone leaving a home needs to be in the private sector to escape abuse. I assume not, because under new subsection (2A), one does not leave square one unless the local housing authority is required to grant a secure tenancy.

Can the Minister explain the eligibility a little more fully? As I understand it, not all victims of domestic abuse who do not have children are considered as being in priority need for housing, so does the woman—again, I will assume that it is a woman for the purposes of the debate—have to satisfy priority need for the provisions to apply? Will a victim have to accept whatever housing is offered, however unsatisfactory she considers it?

There is also the question of identifying domestic abuse for the purposes of the legislation. What evidence will be required? The Bill rightly extends to all forms of abuse—I note that the list of types of abuse is not exhaustive—but what level of proof will be required?

Local authority social workers, who have enough on their plates already, will not be unfamiliar with identifying abuse; for our part, we are familiar with training not always being adequate. In our debate last July, introduced by the noble Baroness, Lady Manzoor, my noble friend Lady Brinton and the noble Baroness, Lady Royall, referred, I think to the Minister’s surprise, to the training of police officers in identifying stalking being satisfied by a 25-minute desk exercise. I see possible comparisons here. Is the Minister considering guidance in this connection for housing officers?

I looked back at a report, referred to in that previous debate, into the No Woman Turned Away project, which looked at the position of 404 women with 533 children in the period January 2016 to January 2017. I shall quote from that report, by Women’s Aid:

“Many women, supported by the NWTA caseworkers, faced structural barriers to accessing safety due to inadequate responses from statutory agencies … Social services failed to meet their duty of care towards 37 of the 115 survivors they supported … Several women who were refused help by social services were told that they were not experiencing domestic abuse or that they did not meet the risk threshold for intervention. Local housing teams prevented 78 … survivors from making a valid homeless application. 14 women were told to call the NDVH instead of making a homeless application and 11 cases did not consider the domestic abuse to be a significant risk factor to merit a domestic abuse application, with eight women being told to return to the perpetrator and three women told to come back when the situation got worse ... reasons given for preventing a survivor from making a homeless application”,


included being told to call the helpline, as I have mentioned,

“that the Local Housing Authority did not have the duty to her or her children … being explicitly told that domestic abuse was not the responsibility of the LHA …, or refusing an application and giving no reason at all”.

A number of survivors were told,

“that they needed a local connection in order to apply … or were told to make an application in another borough … Local housing teams prevented 78 … survivors from making an application. Often their understanding of domestic abuse is limited to physical abuse with only partial knowledge of other aspects of abuse or coercive control”.

These are two major areas of concern. What does the Local Government Association have to say about these and other concerns? We might be about to hear the answer from the next speaker: I hope so.

I appreciate that this is one piece in the jigsaw of supporting adults and children who are subjected to domestic abuse. I, too, will not venture into the complicated field of benefits or no benefits—today, at any rate. That will be unavoidable when we get to the wider legislation.

The Minister mentioned regulations. Will those be regulations under the 2016 Act? This Bill seems to provide for regulations only in regard to commencement.

The Bill is not a silver bullet, but it addresses one unintended consequence of the 2016 Act, so my final small but important question is: when is this legislation likely to be brought into effect?

Grenfell Recovery Taskforce

Baroness Hamwee Excerpts

Monday 6th November 2017 Lords Chamber

[Lord Bourne of Aberystwyth]

I thank my noble friend. I have the inquiry’s terms of reference in front of me. First of all, I am not sure whether she was referring to the issue of fire sprinklers; perhaps not. The inquiry covers the scope and adequacy of the relevant regulations, legislation and guidance. It also refers to the actions of the local authority and other bodies before the tragedy, which puts it in scope. I am sure that any inquiry chairman, if they wanted to report, would regard that as in scope. I had better not go further than that.

[Baroness Hamwee (LD)]

My Lords, the Minister referred to culture. He used words such as “empathy” and quite rightly said that changing a culture is a very long-term project. Does he share my concern—this is no reflection on Barry Quirk at all—that local authorities must be tempted to put their efforts into senior leadership and front-line services, leaving a bit of a hollow in the middle? The culture has to go all the way down, and the people in the middle contribute to the culture. I am of course referring to the financial position that many local authorities find themselves in.

[Lord Bourne of Aberystwyth]

I thank the noble Baroness very much. Of course, she is very well acquainted with London local government, in particular. In relation to the culture, without prejudicing anything specific that is being looked at by any of the inquiries, I agree with her that the culture has to run throughout an organisation. She referred to finance. Once again, without wanting to prejudice anything in relation to the Royal Borough of Kensington and Chelsea, I do not think finance is a major issue here, certainly not in terms of the costs of finding additional housing. We know the borough has the money for that, so I think that would be covered. She made another point, which I have now forgotten.

[Baroness Hamwee]

I was talking about local authorities focusing on senior leadership and front-line services, leaving something of a hollow in the middle. It is a much wider question than one can deal with in an afternoon.

[Lord Bourne of Aberystwyth]

I am sorry, that was the point I picked up on. I agree with her that culture has to be pervasive through the whole organisation. I am sure that that would be picked up, but again, that will be looked at by the inquiries. I do not want to prejudge what they will find.

Housebuilding: Target

Baroness Hamwee Excerpts

Tuesday 19th July 2016 Lords Chamber

[Lord Bourne of Aberystwyth]

I thank the right reverend Prelate for that point. He is absolutely right that this is an issue. Local authorities, as I know from Wales—this applies in England as well—have a power to use council tax as a device to ensure that people pay an additional amount on a second home. We are looking at this; I will write to the right reverend Prelate as regards progress on it and will make a copy available in the Library.

[Baroness Hamwee (LD)]

My Lords, do the Government have a new homes strategy? If not, why not, and if they do, what progress is being made with it? I declare an interest as vice-president of the Town and Country Planning Association.

[Lord Bourne of Aberystwyth]

I thank the noble Baroness for that question. Of course we have a new homes strategy: we are committed to building 1 million new homes in this Parliament, and measures are in place. A £20 billion budget for housing over this Parliament, which is a considerable amount, is partly to encourage housebuilding but is also helping people to buy and making money available for homes to rent.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Hamwee]

My name is to this amendment. The Minister in Committee referred to Clause 9 on exceptional case determination and said that guidance would make it clear that victims of trafficking would, or should, be able to benefit from those provisions. Tonight, we have heard that the Government will bring claims by victims of trafficking within scope, I assume, at Third Reading. We have not seen the detail and, like the noble and learned Baroness, I have been wondering about the issue of evidence about an individual being a victim of trafficking. I was very pleased about that—I suppose it is a provisional pleasure until one has seen the detail—although it raises the question of whether the government amendment is necessary, given Clause 9, and given what was said at the previous stage. I hope that does not sound ungrateful. If it is necessary, what about problems that we have not yet unpacked on Clause 9?

Amendment 69, as the noble and learned Baroness said, is relatively limited in its ambition. That is not a criticism at all. However, it made me start to think about the problems faced by trafficked people. The noble Lord, Lord Beecham, referred to children in schools from a particular background having problems. I have written down: education issues around childcare; benefits, obviously; immigration other than asylum; the associated costs; expert reports; interpretation; and the disbursements paid by a solicitor such as these. I know that the Minister may think that I am pushing my luck but, as I have said before, this country finds itself as the involuntary host to a number of people who have been trafficked and it has very particular responsibilities. Perhaps after tonight it might be possible to explore what the Government have in mind in this connection and how far assistance can be provided. I pray in aid the Government’s strategy which makes it entirely clear that improved victim identification and care is at the heart of our response to trafficking. I am very pleased to be able to support the amendment. I look forward to what may come at the next stage.

[Lord Bach]

My Lords, we continue to support this theme of amendments. There were two in Committee moved by the noble and learned Baroness, Lady Butler-Sloss. We supported them then and described them as powerful amendments. Amendment 69 remains a powerful amendment. We look forward to hearing what the Minister has to say. We hope and expect him to be sympathetic.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Wednesday 18th January 2012 Lords Chamber

I hope the Minister accepts that the Government have overlooked the effects of cuts upon this relatively small, special group of people. The wording of Amendment 61A could undoubtedly be improved, particularly in terms of identifying who is actually a victim of trafficking, but to penalise this group of seriously disadvantaged people would be contrary to the EU directive, the European convention and, perhaps more importantly, the Government’s own excellent strategy document. I beg to move.

[Baroness Hamwee]

My Lords, I support these amendments with great enthusiasm. The noble and learned Baroness referred to the convention, and at the end of her remarks she referred to the government strategy which I think was published in the middle of last year. That, as I read it, has two limbs: one is to deter and disrupt trafficking; and the other, quite explicitly, is improved victim identification and care. These amendments fall absolutely squarely within the strategy that has already been articulated.

Trafficking by its nature is very largely hidden. It seems that as the unwilling but nevertheless host country in which victims find themselves, we have a number of duties. One of those duties is to enable these people to use the facilities of the state. The issues that have been listed in these amendments would fulfil that obligation. The noble and learned Baroness referred to migrant domestic workers. Those who may have been trafficked to work in cannabis farms or sometimes in restaurants—in the kitchens, not where you see them—would have similar sorts of claims. I do not want to repeat all the points that have been made or turn this into a hearts and flowers argument, as I see it as a matter of duty and central to what the Government have already identified.

--- Later in debate ---

[Lord Bach]

My Lords, we absolutely support the noble and learned Baroness in her amendments in this group. Very few crimes engender more opprobrium or anger both within and between Governments than crimes involving human trafficking. It is dispiriting that even today the illegal trade of people in this form still exists and perhaps even flourishes.

As the noble and learned Baroness said, we should rightly be proud that the international community has worked together to promulgate the protocol to prevent, suppress and punish trafficking in persons, especially women and children, adopted by the United Nations in Palermo in 2000. I am proud again that nine years later our country ratified the Council of Europe Convention on Action against Trafficking in Human Beings. The noble and learned Baroness quoted from part of that convention. The quote that I have is from Article 15 of that convention, to which she referred. She quoted from Article 12, I think, but Article 15.2 says:

“Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law”.

It goes on at paragraph 4 to say:

“Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets”—

and it goes on to describe those assets. It is a pity that the Government have, so far at least, shown a somewhat less generous view of their obligations.

The Government stated in their response to consultation on this matter:

“There will be instances in which the Convention”—

meaning the Convention on Action against Trafficking in Human Beings —

“requires legal aid to be provided to victims of trafficking to fund their claims. However, we estimate that the volume of these cases is likely to be small and any obligation to provide legal aid will be met by the proposed new exceptional funding scheme that will provide legal aid where failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998”.

The feeling around the Committee seems to be, and I very much share it, that that approach on this matter is unacceptable. Neither is it worthy of our legal system and our commitment to access to justice. It is not enough to rely on the Human Rights Act 1998 and say that anything that might not be in breach of it is somehow okay.

If legal aid is taken out of scope, it threatens to force victims of trafficking—acknowledged by the Government as some of the most vulnerable people in our country—to navigate an unfamiliar system in a language they may not understand, when they are almost certainly highly distressed and seeking legitimate redress against their persecutors. The noble and learned Baroness described the state of a number of those who had suffered in this way. To abandon them in the way that the Government intend, if this Bill were to go through unamended, for such small savings would be a violation of our positive obligations under the treaty and of our obligations under any sensible framework for deciding when the state should provide legal advice to those who need it.

If I use an unparliamentary expression, forgive me, but this amendment really should be a no-brainer. Victims of trafficking deserve not just our compassion and help, but that of the state when they require it. If we take the Government's own analytical framework for decisions on scope for legal aid, this would seem to be a group that perfectly fits the criterion of a,

“physically or emotionally vulnerable group”.

ILPA, the immigration lawyers’ association, described this group as a kind of paradigm of that criterion and I hope that the Committee would agree.

As far as the gateway to which the noble and learned Baroness referred in opening this short debate is concerned, it must always be remembered that the gateway is there only for matters that remain in scope. In any matters that come outside scope, the person who receives a phone call from a would-be client has to say, “I am sorry, this is not in scope”. Maybe they will give the name of some solicitor or other but they will not be able to take it further themselves, because the matter is out of scope. How horrific it would be if this matter became out of scope, so that even when a telephone call was made—and that is not the most satisfactory way of doing it—they could not be helped.

Secondly, some years ago the noble Baroness, Lady Young of Hornsey, who is not in her place and the noble Lord, Lord Carlile, among others, came and saw me about an issue in a criminal justice Bill that was going through this House which involved this sort of vulnerable victim. They asked us to take some action in regard to it. It was not to do with legal aid or anything like that, but I mention it because we listened to what they had to say. The arguments then were powerful; they are very powerful tonight on behalf of this group. I very much hope that the noble and learned Lord will at least take this away, and consider whether the Government cannot make what would be generally received as a very acceptable concession, if concession is the word, to the present wording of the Bill. Given all the difficulties the Government have and the criteria they set down, I ask them to reconsider their approach to this group of people. These are very powerful amendments indeed.

[Baroness Hamwee]

My Lords, I wonder whether the noble Lord has had the professional experience that I have had, where somebody who is faced with a claim which may result in quite a hefty award of compensation or damages against him finds that his mind is quite concentrated. That in itself is a very significant deterrent to continuing in the business, and trafficking is a business.

[Lord Bach]

I am afraid—or should I say that I am glad?—that my professional experience as a lawyer never included cases of this kind.

[Baroness Hamwee]

Not trafficking, but generally.

[Lord Bach]

In general terms, I am sure that the noble Baroness is right.

Terrorist Asset-Freezing etc. Bill [HL]

Baroness Hamwee Excerpts

Wednesday 6th October 2010 Lords Chamber

Subject to those drafting points, to which we may need to return on Report, I am very pleased that the Government have confined final designations to cases of reasonable belief, and have confined interim designations based on reasonable suspicion to a period of 30 days.

[Baroness Hamwee]

My Lords, I congratulate the noble Lord, Lord Pannick, on his energy in tabling Amendment 3 relatively quickly. When I opened all the papers after a break in the summer, I thought that I had better check to see whether any amendments had been tabled, having written “belief” as the first thing in my notes. I found that the noble Lord had got there before me. I am delighted that he did and delighted that the Government have taken the point. It was one of the major points concerning my noble friend Lady Falkner and me, but not the only one. Some of the points that have already been made, particularly by the noble and learned Lord, Lord Lloyd of Berwick, we will come to in later groups of amendments. I, too, welcome what the Government have done so far.

I shall start with a technical point. I hope that the Government and the House will accept that noble Lords may wish to look at amendments to these government amendments at the next stage. I have tripped over this in the past when I have been told that I had accepted a government amendment in Committee. There is plenty that is worth further debate now that we have had more of a chance to consider them. The critique by the noble Lord, Lord Pannick, of Amendments 29 and 31 goes to that point.

On a general note, the Minister referred to the counterterrorism review. One point that he did not cover when addressing whether asset freezing should fall within the review is the different regimes for asset freezing. The differences between the regimes continue to be troubling.

There is a difficulty in how one splits between this group and the third group one's points on whether the decision should be an executive decision or a judicial decision. I recognise the need for speed. The courts are capable of speed and, as has been said, could deal with an ex parte application by the Treasury in order to take what one might call precautionary interim steps in order not to find that the prospective designated person has outwitted them. Our amendments show that I was prepared to contemplate an initial designation by the Executive, subject to an application to the court, which is our third group, but I remain concerned about whether this should be an executive matter or a judicial matter. In this speech, I shall not cover reasonable suspicion for the 30 days as I hope my noble friend will refer to that in a moment.

If I use the term “draconian” for the asset-freezing regime, I will be told that that applied to a previous regime and that the licensing that the Treasury now implements is more benevolent, but I do use the term because I still see asset freezing as very close to control orders. The noble and learned Lord, Lord Brown, said that in one of the cases that we have referred to. He said:

“In certain respects, indeed, they could be thought to be even more paralysing”.

However you analyse the differences, asset freezing is very close to the restrictive end of the spectrum, with an impact not only on the designated person but, as we will come to in more detail later, on that person’s family. Standing back from the technical words, we can think about living in a family where the main breadwinner is not able to function and the impact that that has on the way the whole family operates, the stigma attaching to it and the relationships with the outside world. If I were the spouse of a designated person, I would not want to go shopping in a supermarket feeling that everybody in my community was looking at me. If I were the child of a designated person, I would be really worried about going to school. The prospects for bullying and so on are enormous. That is not to say that we should not protect the public, but we have to bear that other side in mind. The existence of designated persons under an asset-freezing regime is an existence rather than perhaps full life.

It comes down to whether we think the prime responsibility should be that of the Executive or of the courts. For the reasons that I have given, I continue to believe that the impact should be a judicial responsibility. Is it appropriate? Recognising the objective, is it even proportionate for the Treasury to be both the accuser and the judge?

[Baroness Noakes]

My Lords, I was not able to take part at Second Reading, which I regretted as, when I sat in the seat now occupied by the noble Lord, Lord Davies of Oldham, I covered the terrorist asset emergency legislation earlier in the year. I have of course had an opportunity to read that very good Second Reading debate. Despite the fact that I have now moved to this side of the House, had I taken part in the debate I would have regretted that the Government had not moved on from the formulation of asset freezing bequeathed by the previous Government and my tone would have been probably somewhat critical of my Front Bench. So it is a great delight to me to find that the Government have tabled the amendments in this group. They show that the Government have listened to some of the concerns from the civil liberties groups and from noble Lords and noble and learned Lords. In particular, I believe that the belief formulation is superior to the suspicion formulation, and the interim designation solution is a practical response to the issues that have been raised.

The noble Baroness, Lady Hamwee, raised an important point on amendments to amendments. My noble friend will be aware that if we accept these amendments in practice without agreement, there can be no further amendments. But the Government tabled these amendments particularly late—even later than normal for a Government to table amendments. Conjoined with the fact that when they were tabled we were still in recess, and for many of us it was difficult to access things, I hope that my noble friend will accept that it is reasonable for your Lordships’ House to discuss the substance and the detail of the points that come up in relation to the amendments, which I am reasonably confident your Lordships' House will accept this afternoon. It would not be right to stand on the formality that, having accepted the amendments, we can no longer discuss them in the later stages of this Bill.

Having said that I support the amendments in this group, I have one question for my noble friend. It will be interesting to see how these interim designations are used in practice and whether they are converted to final designations. Under Clause 24, there is to be a regular Treasury report on the use of the powers in the Bill. Will my noble friend assure me that that report will cover the extent to which interim designations are converted into final designations? We would want to have some assurance that the power that is being used in relation to interim designations was sufficiently robust and did not fall significantly short of the standard that we would regard as acceptable for draconian actions to be taken in respect of people’s assets.

Finally, picking up on what my noble friend said about the Home Office review, I think he led the House to believe at Second Reading that that review would be available before we returned. He referred specifically to the Commons Summer Recess ending before we returned. It is a considerable disappointment that we do not appear to have that review available for our Committee stage. Is it possible that we will have that Home Office review before finalising the remaining stages of this Bill? It would be disappointing if the Bill left this House without sight of that review. In particular, although my noble friend referred to the fact that it concludes that there are enough significant differences between the control order regime and the asset-freezing regime, many of us remain to be convinced of the translation of that into legal effect. We would value looking at the arguments and analysis that led to that conclusion.

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Moved by

[Baroness Hamwee]

4: Clause 2, page 1, line 17, leave out “is or has been involved in terrorist activity” and insert “has committed or attempted to commit terrorist acts”

[Baroness Hamwee]

I will also speak to Amendments 8 and 9. The term in Clause 2 with which I am particularly concerned is “involved”. It may look from my amendments as if I am more bothered about the definition of “terrorist activity”. I am a little bothered about that, but more concerned about what is meant by “involvement”. I changed “terrorist activity” to “terrorist acts” simply to make it flow better.

The term “involved in terrorism” seems to me very wide, so I hope that the Minister will explain where it comes from and what the precedents for it are. It looks to me as if the term comes from the Prevention of Terrorism Act 2005 provisions on control orders, which we are all agreed is a tough regime. The Terrorism Act 2000 used a different term, “concerned in terrorism”, in relation to deciding whether to proscribe an organisation. I am told by people from Liberty—I am grateful for their help, which I asked for late last night—that the term “involved in terrorism” has been interpreted by the courts under the control order regime and has been applied even where the person concerned has been acquitted of a terrorism offence. Liberty referred me to the cases involving AY and MB. Therefore, it seems that “involved in” requires only a suspicion of involvement rather than an actual charge or conviction. Although we have spent a good deal of time on suspicion and belief in the debate on Amendment 1, I think that we are back in the realms of suspicion in this group as well.

If I am right that the term “involved in” is taken from the 2005 Act, I should perhaps go on to ask about the different terminology that is used as the provision goes on. The 2005 Act talks about “involvement in terrorism-related activity”, which is not quite what is referred to in the Bill. The courts could distinguish between the two terms and, indeed, that might be what the Minister intends. I felt that I should raise the point at this early stage of the debate.

As other noble Lords will have seen, the briefing from the Equality and Human Rights Commission takes the view that such a threshold is not only too widely drawn but is in excess of what is required by UN Resolution 1373 of 2001.

Let me try to shorten the debate a little—I think that this group of amendments need not detain us nearly as long as the previous one—by acknowledging the provision in Clause 2(1)(b), which requires that the Treasury be of the view that the designation would be

“necessary for purposes connected with protecting members of the public”.

I accept that that is a reassuring condition.

However, I am concerned that the term “involved in terrorist activity” might extend to someone who happens to have been a bystander or who has just been associated with someone a bit more dodgy. The person might just have happened to be in the wrong place at the wrong time. I do not know whether this is a fair analogy to draw, but I am aware of concerns in another part of the legal forest about another term that has now, I am afraid, completely gone from me. That tells me that one should make proper notes. Perhaps my noble friend Lord Carlile knows the term that applies where a gang of people who were standing around happen to have seen a murder and are charged. Can you help me, Alex?

[Lord Carlile of Berriew]

The term is “joint enterprise”.

[Baroness Hamwee]

I thank my noble friend. I could not have afforded that advice but I am very grateful for it. As I said, it may not be an appropriate analogy but it has occurred to me that people whom the public might regard as being a long way away from being responsible for something could be charged under the joint enterprise head with a very serious offence, and I should not like to see that applied here. These amendments are tabled in order to understand the Government’s thinking on this clause better than, I confess, I do at the moment. I beg to move.

[Lord Borrie]

My Lords, the noble Baroness, Lady Hamwee, and her colleague whose name is also attached to this amendment have raised very serious matters. After all, vagueness is not appropriate to the creation of a criminal offence and nor does it seem appropriate when the results may be the drastic ones described by several noble Lords in the previous debate. If being involved is something other than having committed or having attempted to commit an offence, what is it? Being involved seems to be so general and unspecific that it seems inappropriate even to legislation which is concerned with preventive matters rather than with a known criminal act that has been committed. I think that the Government are called upon to explain this.

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[Lord Sassoon]

One has to go back to the definition of terrorist activity in Clause 2(2). I cannot do more than draw the Committee's attention back to the definition there, which mentions,

“the commission, preparation or instigation of acts of terrorism … conduct that facilitates the commission, preparation or instigation of such acts, or that is intended to do so … conduct that gives support or assistance to persons who are known or believed by the person concerned to be involved in conduct falling within”,

the previous two paragraphs of the subsection.

It is necessarily drawn wide, but the linkages that are made are clear from the definition. All cases also have to be linked to what is necessary for public protection. I ask my noble friend to withdraw the amendment.

[Baroness Hamwee]

My Lords, I will not leave the Minister in suspense. In view of the point made by the noble Lord, Lord Pannick, I am minded to bring the term “involvement” back on Report in the hope that the Minister will have had an opportunity to consider the culpability issue and will perhaps be able to give us some more assurances on it.

When I moved this amendment, I acknowledged paragraph (b), and I hope I said, because it was what I wrote down, that I was reassured by it. I take that point very seriously and was by no means ignoring it. The boundaries of culpability, as the noble Lord, Lord Elystan-Morgan, described them, are very important. I will come back to this, but not in as extensive a fashion, and I know there are some problems with some of these amendments. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Moved by

[Baroness Hamwee]

5: Clause 2, page 2, line 7, at end insert—
“(1A) Such designation shall expire after 30 days unless confirmed by the High Court under subsection (1B) of this section.”

[Baroness Hamwee]

I shall speak also to Amendments 6, 14, 16, 17, 26, 35, 47, 50, 60, 61 and 62 which are tabled in my name and that of my noble friend Lady Falkner. Government Amendments 57 to 59, 63 to 69, 71 to 73 and 88 are also in this group which is about the role of the court. In view of the previous debate, and to stop anybody teasing me, I will acknowledge that Amendment 5 provides a 30-day period. I welcome government Amendment 57, which introduces the appeal, but I am concerned that it should be an appeal as most people understand that term, so I will use these amendments to ask the Minister to explain how his new clause on appeal, which is inserted by Amendment 57, and Clause 22, which is subject to some amendments he will move, work together. In particular, we are retaining subsections (3) and (4) of Clause 22, which provide for the application of judicial review procedures.

I appreciate that the new appeal provision is about an appeal on designation. Having got that, and given that even if there were no reference to judicial review it could not be excluded because you cannot exclude judicial review, I am not sure why it is necessary to retain any part of Clause 22. I understand that the Government’s argument is that judicial review would be adequate for the circumstances we might find ourselves in, but the issue arises of how far a designated person under judicial review procedures can challenge the evidence. We will come to special advocates later. What, for instance, if he says that the circumstances have changed? As I understand it, judicial review is about what is in the mind of the decision-maker at the time the decision is made. What is the Government’s objection to appeals on all aspects of this regime to deal with the merits as distinct from the reasonableness of a decision? I am told that how the courts approach judicial review is slightly shifting sands becoming slightly wider and more open. Essentially, it is about legality and reasonableness as well as procedure. Legality meaning vires and reasonableness being Wednesbury reasonableness. Put simply, reasonableness is setting the outer boundaries to the discretion.

In particular, I should like to understand from the Minister whether, as the Bill will be amended with his amendments, the court can substitute its own version of a licence. I do not think that one can look at designation orders without thinking about how the licensing regime will operate as part of them. If we are leaving licensing entirely as an Executive matter, with the court perhaps able to strike a licence down but not able to substitute a different licence, I would be particularly concerned. I look forward to the Minister introducing his amendments. I have deliberately not taken long on mine because the Committee will be waiting to hear from him. I beg to move.

--- Later in debate ---

[Baroness Hamwee]

I have got the point before the noble and learned Lord makes it.

[Lord Davidson of Glen Clova]

Then I will not make it.

--- Later in debate ---

[Lord Wallace of Tankerness]

I think that I am right in saying that the noble Lord represented successful appellants in the case to which he referred. Certainly we would take the view that the special advocate system and disclosure procedures are designed to ensure justice for individuals in difficult circumstances when, as the noble Lord recognises, public interest material cannot be disclosed. The special advocate system has been in effect for some time. With regard to the specific case, applying the AF judgment to asset freezing, the noble Lord is right that there is a relation to control orders, but the Government do not consider that there is an automatic read-across to all other proceedings involving the use of closed material for special advocates. It is fair to say that the requirements of fairness, which are vital, will vary according to the context and gravity of the consequences for the individual. It is engrained in both domestic and European Convention of Human Rights jurisprudence that fairness is context and fact specific. In the case before the Grand Chamber against the UK that immediately preceded the AF case, the point that it can vary was made. That is no doubt a matter to which we will return when we deal with the issue of special advocates under a later amendment.

[Baroness Hamwee]

My Lords, my apologies for ignoring the wonderful country of Caledonia, which I love very much. It was a particular gaffe, given the presence on the two Front Benches of eminent Scottish lawyers.

What I am going to say should be construed as constructive criticism, which is appropriate from these Benches. My noble friend referred to the human rights aspects of designations and how they had figured in the Government’s thinking in inserting the appeal procedure. The significance of the licensing regime must not be downplayed; the human rights aspects of the licences are enormously important. The Government have explained why they consider that a judicial review will be adequate to deal with licences, but the Minister has not explained—perhaps he does not think it necessary—why the appeal route is being rejected. I ask him these questions to get them on to the record. Perhaps I will come back to them next time.

Clause 22(2) allows for a person affected by a decision to apply for the decision to be set aside. The phrase,

“the decision should be set aside”,

is in Clause 22(3). I do not know whether “set aside” covers setting aside a decision and imposing an alternative, which might be varying a licence. If so, that might answer the point, but I suspect that it might not cover it; it is certainly not clear. Clause 22(4) says that this is the condition for the court giving whatever order it determines if it decides that a decision should be set aside. I want to be reassured that the court can take a view not to set aside the licence but to vary the terms of the licence. I do not know whether the Minister wants to comment on that at this point.

[Lord Wallace of Tankerness]

I thought that I had indeed indicated that it is our belief that the court has the discretion to give whatever relief it considers appropriate if it is dealing with a licence under judicial review and that that can include amending the terms of a licence.

[Baroness Hamwee]

I heard that; I took it as a general comment. I was particularly concerned about the words in what will apply—above and beyond, presumably, although I do not know—and whether the general position can trump what is in this legislation. Maybe we can discuss this between now and the next stage and, if necessary, come back to it. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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Moved by

[Baroness Hamwee]

12: Clause 3, page 2, line 26, leave out “must” and insert “may”

[Baroness Hamwee]

I shall speak also to Amendment 13 and hope that discussion of the two amendments will take two or three minutes rather than 23. Noble Lords are accustomed to hearing debates about changing the term “may” to “must” in legislation. My amendments would change the term “must” to “may”. They are about notifying designation and about publicity. Clearly, the Treasury must tell the banks, which it does by way of the consolidated list, but I am concerned here, as I am in other parts of the Bill, with the stigma that is allied to designation, and the effect on the family.

The conditions in Clause 3(3) that allow the Treasury not to publicise the designation are very specific. I should like to give the Treasury some discretion, although I accept that it may not use it, to pause and take account of the wider concerns that I have expressed. The clause is important: the offence is dealt with later, but there is a serious point here and I shall be interested to hear what the Minister says about the Treasury's approach.

It was very helpful to hear him explain what lies under the tip of the iceberg, as he described it, when it comes across his desk; but I am sure that he will accept that legislation needs to give assurances both about the tip and about what is concealed under the surface of the sea, and that what the Treasury does as a matter of practice, when it is good, needs to be enshrined in legislation so that it cannot be varied without Parliament being aware. He will not have had the experience that other noble Lords have had of saying: “Yes, Minister, you’re fine, but what about your successors?”. I beg to move.

[Lord Sassoon]

My Lords, I fully appreciate that the intention of Amendments 12 and 13 is to give the Treasury flexibility when determining whether to publicise a designation. However, the Treasury believes that the automatic publication of designations on its website where the conditions of Clause 3(3) are not met is the most efficient and effective way of achieving the appropriate level of awareness and compliance with the asset freeze. It is the most effective method of informing the financial sector and other parties of their asset-freezing obligations, and thus of limiting the risk of the prohibitions—

[Lord Sassoon]

If my noble friend will permit me to go on, I will get to the answer to that challenge and explain why, in the round, the current construct works. We need the most effective method of informing the financial sector and other parties of their asset-freezing obligations to limit the risk of the prohibitions in the Bill being unwittingly breached in relation to funds being diverted for terrorist purposes. I accept that such an aim is not inconsistent with Amendments 12 and 13, but, if I may go on, let me complete what I was saying about our reasoning for believing that the Bill as it stands works well.

We recognise that, yes, publication would interfere with the listed person’s right to respect for their private life, but we believe that greater weight must be given to the public interest in ensuring that a designation is effective and that a designation will be most effective when generally publicised. Indeed, the Supreme Court has acknowledged the public interest in publicising designations generally. In January, the court ruled that the identity of four designated persons could be made public and that anonymity orders were justified only in an extreme case where there was significant risk to the designated persons or their families. There are no reports of any individual being harmed as a result of their asset freeze being publicised. Indeed, general publication is consistent with international best practice and the FATF guidance. The EU publishes on its website details of those persons who have been designated under the respective regimes. If the UK were to cease publicising designations generally in all cases other than when a restricted publication was justified under Clause 3(3), that would give rise to an approach that was inconsistent with those of international partners and international guidance and best practice.

For the reasons that I have set out, I hope that your Lordships will support maintaining the current drafting of the Bill and that my noble friend will withdraw Amendment 12.

[Baroness Hamwee]

My Lords, I had not thought of the point about danger to the designated person and his family. Actually, I can see that that could be a serious concern.

I am still not persuaded that Amendments 12 and 13 would inhibit the Treasury acting as the Minister described. I am sure that this is not his intention, but his response seems almost to amount to a fear that the Treasury cannot be trusted to make a sensible decision. However, although I am not persuaded, I will not pursue the matter further so I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.

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Moved by

[Baroness Hamwee]

24: Clause 4, page 3, line 14, leave out “they consider appropriate” and insert “are necessary”

[Baroness Hamwee]

In speaking briefly to Amendments 24 and 28, I perhaps come from a different stance from that for the previous group of amendments.

In both Clause 4, “Duration of designation”, and Clause 5, “Variation or revocation of designation”, as currently drafted, the Treasury must,

“take such steps as they consider appropriate”,

to bring such matters to the attention of the persons who have already been informed of the designation. Amendments 24 and 28 would change “they consider appropriate” to “are necessary”. First, I simply want to understand why it is necessary for the Treasury to have the slight subjectivity—the discretion, if you like—that is allowed in the clauses as drafted. Secondly, I want to ask whether “appropriate” implies a degree of reasonableness. Could the Treasury take a completely off-the-wall view, or must it act reasonably in Clauses 4 and 5?

[Lord Sassoon]

Let me try to address my noble friend’s concerns about Clauses 4 and 5. As she said, Amendments 24 and 28 would remove the Treasury’s discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that are objectively necessary. Let me try to explain why the Government believe that the amendments are unnecessary.

In practice, the Treasury will consider what steps are objectively necessary. In determining the appropriate steps to be taken, the Treasury will be conscious that the determination should be objectively justifiable, as a decision not to take a step that would be objectively construed as being necessary would be subject to legal challenge on the basis of being unreasonable. The Treasury will in practice decide on a case-by-case basis the best way to notify persons that a designation has expired, been varied or been revoked, with full consideration being given to the particular circumstances of the case of the designated person and of any other relevant factors. In practice, designated persons will always—unless they cannot be traced because, for example, they have gone overseas—be notified in writing that their designation has expired or been revoked or varied. Details of the change will be notified to other persons in the same way as the original designation.

The Treasury’s duty to notify is underpinned by the requirement in Clause 37(3), which states:

“Where the Treasury do not have an address for the person, they must make arrangements for the notice to be given to the person at the first available opportunity”.

I absolutely agree that it is important that persons informed of a designation are also informed of its expiry, revocation or variation and that such information should be provided in the most appropriate way. However because of the way that, as I have described, that will happen in practice, I do not believe that Amendments 24 and 28 are required. I hope that noble Lords will agree that it is not necessary to amend the Bill in this respect.

On that basis, I hope that my noble friend will consider withdrawing Amendment 24.

[Baroness Hamwee]

My Lords, I will do more than consider it. I beg leave to withdraw Amendment 24.

Amendment 24 withdrawn.

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Moved by

[Baroness Hamwee]

34: Clause 6, page 3, line 31, leave out “, or has reasonable cause to suspect,”

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 36, 37, 39, 40 and 43. Clause 6 creates an offence, so we must be very confident that that offence is on a proper basis. My amendments would change the words,

“or has reasonable cause to suspect”,

in the context of a person knowing or suspecting that certain information is to be treated as confidential, to “reasonably suspects”. The same point comes up in a number of places in the Bill. The two terms are obviously extremely close but “reasonable cause to suspect” is about the reason for the suspicion, whereas “reasonably suspects”—my alternative phrase—is about the suspicion itself. One needs to ask whether the suspicion is reasonable in the round, as distinct from merely whether it is reasonable to believe in whatever caused the suspicion. Indeed, with regard to the term in the Bill, “reasonable cause to suspect”, I might add the question: does the person have to have the suspicion or can he be guilty of an offence—I stress that this is why this issue is important—if he believes something that would lead a reasonable person to suspect although the person himself does not form the suspicion? If someone says “angels and pinpoints” I shall understand, but I think that there is an issue there.

Amendment 36, quite differently, would take out the reference to “any other enactment” in Clause 6(4)(c), where disclosure is permitted if it is necessary to give effect to a requirement under this part or under any other enactment. I have tabled this amendment in order to ask the Government to justify those words and to explain why it cannot be left to the “other enactment” to deal with the situation. I beg to move.

[Lord Sassoon]

I shall take Amendments 34 and 36 in turn. Amendment 34 would limit the effectiveness of the provisions concerned with protecting the confidentiality of information provided by the Treasury to certain persons in connection with a designation. It would mean that only those who know, as opposed to those who have reasonable cause to suspect, that information they possess is to be treated as confidential may commit an offence by disclosing it. This would weaken the protections afforded to confidential information and thus potentially adversely affect the designated person’s rights.

It is right that those who have reasonable cause to suspect that information they possess is to be treated as confidential should be subject to criminal sanctions if they disclose such information. If a person had reasonable cause so to suspect but claimed not to have any suspicion and went on to disclose the information, it could be said that the person ought to have held a suspicion, in which case such disclosure should be prohibited. The current drafting of the clause provides the greatest degree of protection to the confidentiality of the information that the Treasury has provided. This is a complex series of interlinkages but I hope that on the basis of that construction my noble friend will withdraw her amendment.

Amendment 36 would limit lawful disclosure to circumstances where disclosure was necessary to give effect to a requirement imposed under or by virtue of Part 1 of the Bill only and not any other enactment. The amendment would have the effect of prohibiting disclosures which are required to give effect to any requirements imposed by any other Acts of Parliament. This would, for example, prevent disclosures concerning money-laundering or terrorist financing being made to the Serious Organised Crime Agency under either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 with the consequence that the person concerned would be in breach of the statutory requirements contained in another Act. Preventing such disclosures would of course have a serious impact on the UK’s operational effectiveness in fighting crime, and delaying such disclosures while authority to disclose was sought from the Treasury would have an adverse operational impact. Therefore, as with the other amendment, I hope that my noble friend will not press Amendment 36.

[Baroness Hamwee]

My Lords, I am grateful for that. I had to think very carefully about how to express the bulk of my amendments, and indeed I had to take care to read my notes accurately. Similarly, I think that I need to read the Minister’s reply carefully to ensure that I understand it. For the moment, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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Moved by

[Baroness Hamwee]

38: Clause 8, page 4, line 32, after “indirectly” insert “, with the intention of benefitting the designated person”

[Baroness Hamwee]

I shall speak also to Amendments 41, 42, 44 and 49. Here, we come to the prohibitions—again, creating offences—and there are a number of terms which I am seeking to understand through these amendments. The first is the term “indirectly”, whereby funds, services, economic resources and so on may not be made available directly or indirectly. I could just have sought to delete the word “indirectly” but I can see that it must mean something, and in the context of this issue I do not want to suggest that we are seeking to weaken the arrangements. Therefore, I have chosen instead to insert the words,

“with the intention of benefitting the designated person”,

but, as the Minister will have guessed, my real concern is to know what might be covered by the term “indirectly”.

The other term that concerns me is “partly”. To take the first point at which it arises—in Clause 9—the definition of “financial benefit”,

“includes the discharge of a … obligation for which the designated person is wholly or partly responsible”.

My concern here is perhaps a little different because the situation might arise in which the spouse of a designated person wants to make a payment on a joint mortgage. It seems to me that that would be prohibited, although it could obviously be licensed.

This is all about the family. I accept that there is a proposed new clause about social service benefits, but I wonder whether it is extensive enough. Joint mortgage was one example. Obviously, joint accounts will be frozen—I say obviously, but maybe I will be corrected. Will a spouse’s separate account be affected? To take a different situation, if the spouse’s employer fears that the spouse’s wages are going to a designated person, how should the Treasury, or anybody else, react? Can we have reassurance that the spouse’s income will not be stopped because the terms of the legislation are such that the employer might fear that he is committing an offence?

Amendment 40 specifically addresses joint assets and requires the Treasury to grant a licence, so I am coming at this from a number of different directions. I look forward to hearing what the Minister has to say and beg to move.

[Lord Wallace of Tankerness]

My Lords, as the amendments in this group enjoy a similar theme, it is perhaps not surprising that the Government’s position on the amendments also is similar. Amendments 38 and 42 relate to Clauses 8(1) and 10(1) respectively. These clauses prohibit the making of funds, financial services and economic resources available directly or indirectly to a designated person where the person providing the funds, financial services or economic resources knows or has reasonable cause to suspect that the ultimate recipient is a designated person and, additionally, in the case of economic resources, knows or has reasonable cause to suspect that the designated person would be likely to exchange them or use them in exchange for funds, goods and services. As for my noble friend’s initial question on the import of the word “indirectly”. Quite simply, it means that the benefit is directed through a third party and not the designated person.

The amendments would mean that a person could be prosecuted for breaching these prohibitions only if it could additionally be proved that that person intended the funds, financial services or economic resources to benefit the designated person. There is a concern that that would add a layer of complexity to the prohibitions and make it much more difficult effectively to enforce them. In these circumstances any prosecution would require proof beyond reasonable doubt that the person harboured the intention that the designated person should benefit from such funds, financial services or economic resources.

The Government do not support these amendments for two reasons. First, the amendments increase the difficulty with which the prohibitions can be enforced. Secondly, the Government do not believe that they achieve what is believed to be their intended effect, which is to provide a further protection to parties who unwittingly make funds, financial services or economic resources available directly or indirectly to a designated person. The prohibitions are already drafted so that persons who do not know or have no reasonable cause to suspect that they are breaching them, are not caught. It is therefore somewhat superfluous to require further that the prohibitions should apply only to those who intend that the funds, financial services or economic resources provided should benefit the designated person.

--- Later in debate ---

With that explanation and reassurance with regard to the flexibility and use of the licensing scheme, I hope that my noble friend will withdraw her amendments.

[Baroness Hamwee]

My Lords, I shall certainly do so. I am grateful for the Minister’s explanation of the term “indirect”. On his point that I dealt with the term “partly” and thus added complexity, I think I would say, “So?”. If my amendments do not achieve their objective, that is another point.

I remain concerned about the licensing relying on Treasury policy rather than flowing from the provisions of the statute. The Minister recognises that that is a serious point and I think he will also recognise that there is a line between relying on current policy, which may be changed dramatically or morph into something else, and having the reassurances that a provision in legislation would provide. I wonder whether I can talk to him on Report about this point, not about the rest of the group of amendments, to see whether something might be achieved that we both want to achieve. I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

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Moved by

[Baroness Hamwee]

45: Clause 12, page 6, line 12, at end insert—
“( ) The prohibitions in section 8 to 11 are not contravened by the provision or funding of the provision of legal representation, legal advice or other legal services of, to, or for the benefit of the designated person.”

[Baroness Hamwee]

My Lords, at last we come to some single amendments. Amendment 45 would provide that the prohibitions that we have just been discussing are not contravened by the provision or funding of the provision of legal representation, advice or other legal services for the benefit of the designated person.

I understand that the practice—again, there is a distinction between practice and legislation—is that a general licence is granted by the Treasury for legal aid. One must put in brackets that we know what is happening to the provision of legal aid more widely; it has been becoming less and less available. With this amendment, I am not trying to find a loophole for the prohibitions to be avoided—perhaps evaded would be the right word. It has been put to me in discussion with Ministers and the Bill team—I have left it rather late, but I should thank them for the time that they have spent discussing the Bill with me before today—that money might go to a dodgy lawyer who would pass it on to a designated person. Obviously, that would be an offence.

It goes against every fibre of both my being and my legal training to see anything that might deny access to legal advice and representation—in other words, access to justice. I wait to hear whether there are loopholes in the amendment, but I think that the principle is important. I beg to move.

[Lord Pannick]

My Lords, I am very sympathetic to the amendment for two reasons. First, it seems to me right and proper to allow a person to use as much of their financial resources as they see fit to pay for legal advice and assistance. To impose restrictions on them in that respect is simply to interfere with the administration of justice. Secondly, I cannot see that the Treasury has any interest whatever in preventing a person using their own funds to pay for legal advice and assistance. The Treasury’s only legitimate interest is in preventing the use of the funds for the purposes of terrorism. If the money is being paid to someone who is regulated by the Law Society or the Bar Council—I appreciate that the amendment may need some tinkering to cover those points—I cannot see that the Treasury can have any legitimate concern as to the improper use of the money for purposes associated with terrorism. If the Minister takes a different view and there is evidence to suggest that persons who are regulated by the Law Society or the Bar Council are or may be acting improperly in this respect, please will he tell the House and explain what steps the Government are taking to draw such concerns to the attention of the proper regulatory authorities?

[Lord Wallace of Tankerness]

My Lords, this is an important amendment, and one that is somewhat foreshadowed by the comments of the most reverend Primate the Archbishop of York when we debated an earlier set of amendments. The effect of the amendment would be that any payments the purpose of which was to pay legal expenses of a designated person would not require a licence. As a result, the Treasury would have no oversight of such payments.

It is important to emphasise that that would include payments not just directly to solicitors and law firms but to designated persons themselves if the purpose were to pay legal expenses. This could include payments made by one designated person to another if the first designated person had access to free funds.

I understand the legitimate concerns that have prompted the amendment. I emphasise without equivocation that a designated person must be in a position at the earliest possible opportunity to challenge a designation or any other related decision made by the Treasury under the Bill, but I believe that the existing licensing scheme meets this requirement. Licences already provide a controlled mechanism whereby designated persons can be provided with funds to pay for legal representation with adequate conditions in place to control the risk of funds being diverted to support terrorism. A designated person or any other affected party may also request a licence at any time.

Moreover, the Treasury has issued a general licence that applies to all designated persons to enable eligible legal aid payments to be made. I give the assurance that that will be replicated once the Bill is enacted. That general licence ensures that a designated person will have immediate access to legal representation where they qualify for legal aid. Any other party may request a licence at any time to pay for a designated person's legal expenses. I emphasise that the general presumption is that where a licence is requested to pay for legal costs, it will be granted.

The Government believe that this is the proper and effective way to deal with the provision of funds in relation to legal services provided both by the state, under the legal aid system, and by other persons. It does not and is not intended to impede a designated person's ability to access justice, which we think is very important, but it also ensures that the Treasury can maintain oversight of a designated person's expenditure. I hope that, against that background and with that reassurance, the noble Baroness will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, we come up against the issue of policy and legislative provision yet again. The oversight by the Treasury could be provided by requiring reporting to the Treasury. I take the point about regulated providers made by the noble Lord, Lord Pannick, and the point about not permitting payment to the designated person made by the Minister. Subject to those points, I do not see a lot wrong and I see a lot right with my proposition and, again, I do not want to abandon it tonight. However, for the moment, I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Terrorist Asset-Freezing etc. Bill [HL]

Baroness Hamwee Excerpts

Wednesday 6th October 2010 Lords Chamber

Moved by

[Baroness Hamwee]

53: Clause 16, page 8, line 5, leave out “the Treasury believe that”

[Baroness Hamwee]

This is a short amendment to Clause 16, which gives the Treasury powers to request information. Under subsection (3) we are told that the power is exercisable only where the Treasury believes that it is necessary to monitor compliance or detect evasion. My amendment would take out “the Treasury believe that” so that it reads “only where it is necessary for the purpose”, to provide a more objective test and give one the basis to ask for confirmation that the belief—assuming the clause is unamended—that the Treasury must have is reasonable. I beg to move.

[Lord Wallace of Tankerness]

I thank my noble friend for this amendment. As she has indicated, the effect of the amendment would be to make the grounds for a request under this part into an objective test by requiring it to be necessary, rather than—as provided and drafted as present—a subjective test. My noble friend would do that through the removal of the reference to the Treasury believing it to be necessary. I understand the concern that prompts the amendment. The clause makes whether to seek certain information a matter of subjective judgment for the Treasury. However, if this is challenged we believe that, as a consequence, the court will look at the reasonableness of the belief that it was necessary, rather than at whether it was objectively necessary. It is a high test and threshold for there to have to be a belief that the information must be necessary. Ultimately, whether the information is needed or not it is a matter for the Executive. However, as drafted, there is a high threshold to be satisfied, but it is nevertheless considerably preferable to the objective test that would result from my noble friend’s amendment. Therefore, I urge her to withdraw her amendment.

[Baroness Hamwee]

I am grateful. I beg leave to withdraw.

Amendment 53 withdrawn.

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Moved by

[Baroness Hamwee]

54: Clause 18, page 9, line 29 at end insert—
“(3) A person must comply with a request under this Chapter even if doing so might constitute evidence that the person has committed an offence.
(4) But in criminal proceedings in which a person is charged with an offence—
(a) no evidence relating to any answer given, or anything else done, in response to the request may be adduced by or on behalf of the prosecution, and(b) no question relating to those matters may be asked by or on behalf of the prosecution,unless evidence relating to those matters is adduced, or a question relating to those matters is asked, in the proceedings by or on behalf of the person.
(5) Subsection (4) does not apply to—
(a) an offence under section 112 of the Social Security Administation Act 1992;(b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than an oath in England and Wales); or(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (corresponding provision for Scotland).”

[Baroness Hamwee]

This amendment is longer but I hope the debate will not take us very long. We have just dealt with Clauses 16 and 17, which allow the Treasury to request—though it really comes down to “require”—information or documents. Clause 18 makes it an offence to fail to comply with such a request. I am grateful, as always, to the organisations Justice and Liberty for the amendment, which makes provision in relation to that requirement where providing information or documents might result in self-incrimination.

The Human Rights Act provides under Article 6 the right to a fair trial and that includes privilege against self-incrimination. The amendment is modelled on provisions in existing legislation and would continue to require the person in question to provide the information, but would also provide that evidence which is self-incriminatory should not be admissible in any criminal proceedings against that person. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as my noble friend has explained, the underlying concern which her amendment seeks to address is that there could be circumstances leading to self-incrimination. The amendment seeks to protect the privilege against self-incrimination. She has also indicated that it is based on provisions in other legislation. I think that the Companies Act may have similar provisions. The amendment appears to be born from a concern that the Bill infringes that right against self-incrimination. I seek to reassure my noble friend and the Committee that the privilege against self-incrimination is not overridden by the Bill. In particular, a concern held by a person that compliance with an information request would infringe that person’s right against self-incrimination would form a reasonable excuse. I draw the Committee’s attention to Clause 18(1), which states:

“A person commits an offence who—

(a) without reasonable excuse refuses or fails … to comply with any request made under this Chapter”.

We believe that the right against self-incrimination would form a reasonable excuse under Clause 18(1) to refuse to comply with such a request. I believe that this provision is sufficient to maintain the important privilege against self-incrimination to which my noble friend referred. I hope she will be reassured that it is sufficient and that she will therefore withdraw the amendment.

[Baroness Hamwee]

My Lords, indeed I am reassured and I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

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Moved by

[Baroness Hamwee]

56: Clause 21, page 10, line 28, leave out from beginning to “nothing” in line 30

[Baroness Hamwee]

This is another amendment for which I am obliged to Liberty and Justice. Clause 21(1) provides that,

“Nothing done under this Chapter is to be treated as a breach of any restriction imposed by statute or otherwise”.

My amendment would take that out because it seems to be a very broad power giving the Treasury considerable leeway to set on one side other statutory and common law provisions. There are exceptions in Clause 21(2) but only in relation to the Data Protection and the Regulation of Investigatory Powers Acts. I have two points. First, why do the Government consider that this exemption is necessary, particularly in such broad terms? Secondly, as a minimum it should not include a failure to act in accordance with the Human Rights Act. My noble and learned friend, who may also reply to this amendment, is a great fan of that legislation. He may be able to confirm that it is not possible to carve it out in this way or, indeed, in any way. However, I see that my other noble friend will reply to this amendment. I beg to move.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, as my noble friend has made clear, the suggestion behind the amendment is that subsection (1) of Clause 21 gives the Treasury a wide power to disseminate information. It is the intention of the amendment to limit that power. In fact, this provision applies to anyone giving information to the Treasury as well as to any information supplied by the Treasury. Therefore, the purpose of the provision is primarily to protect persons when they disclose information to the Treasury. For example, it protects a bank that has provided information about a customer to the Treasury in accordance with the requirement under the Bill from being subject to an action taken by the customer on the basis of a breach of confidence. I also note, as my noble friend does, that no disclosure under the Bill can be made in a way that contravenes the Data Protection Act. This is set out in Clause 21(2).

On the second point that my noble friend raises, the general wording of Clause 21(1) is not, as a matter of constitutional principle, capable of overriding any provision in the Human Rights Act. I trust that these points will be sufficient to reassure my noble friend that this clause is necessary and that the protections in place under Clause 21(2) meet the intention of her amendment. I hope that she will be able to withdraw it.

[Baroness Hamwee]

Indeed, my Lords, I am grateful and I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

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Moved by

[Baroness Hamwee]

70: Clause 23, page 12, line 1, leave out subsection (4)

[Baroness Hamwee]

The amendment would remove Clause 23(4), which applies the provisions of the Counter-Terrorism Act that relate in particular to special advocates and thus applies similar rules of court and similar provisions to those used in control order cases, where there can be determination of proceedings without a hearing and different modes of proof and evidence and so on, with special advocates appointed by the Attorney-General who are not allowed to disclose exempt material to the affected person, who cannot in the normal way access expert evidence and who cannot effectively take instructions from their client. Effective legal representation—this is the contentious issue that expands well beyond the Bill—is difficult if not impossible if it is not possible to challenge the intelligence on which the decision is based. I am concerned about the principle, but in the context of these procedures I am concerned to ensure fair hearing rights, since the right to know the details of an accusation against one is fundamental to a fair trial.

I have spoken quickly because of the time and because I know that others in the Chamber will be able to say more as a result of their own work, both practically and having considered the matter far more than I have. However, I wanted to introduce the amendment and I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.

[Baroness Hamwee]

The noble Lord, Lord Pannick, as my noble friend said, has described the situation very graphically. But his description, my noble friend’s flattery or my amendment will not get us further tonight. I am not surprised that the Government resist dealing with special advocates separately in this regime from how they might be dealt with overall. It occurred to me because of the counterterrorism review to suggest a sunset clause to this Bill so that we would be forced to reconsider it all when we had the outcome, but I thought that that would not endear me to my noble friends, and more importantly it is not entirely the proper way to go about things. However, it was quite tempting. I am not at all surprised at the response. I share the concerns that have been expressed and beg leave to withdraw the amendment.

Amendment 70 withdrawn.

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Moved by

[Baroness Hamwee]

75: Clause 24, page 12, line 11, at end insert “(including licences granted, varied or revoked)”

[Baroness Hamwee]

My Lords, I shall speak also to Amendments 76 and 77. The noble and learned Lord, Lord Davidson, and the noble Lord, Lord Davies, have tabled Amendments 78 and 79. My first amendment is to Clause 24, which introduces a requirement on the Treasury to make regular reports. Amendment 75 would ensure that the reports covered not only designation orders but licences granted, varied or revoked. My second amendment is largely consequential on my earlier amendments. It would extend the report from the powers conferred on the Treasury to the court. It may well be implied under the amendments to which we have agreed to put in place the appeal procedures that they will be included in the report, but I want to be sure about that.

Amendment 77 is an amendment to Clause 25, which provides for an independent review of the operation of the provisions. In the interests of seamless government, with the Home Office reviewing counterterrorism, I would like the Treasury's appointment to be in consultation with the Home Office. I fully expect an assurance that that is what will take place. I beg to move.

--- Later in debate ---

[Lord Sassoon]

My Lords, I shall take these amendments in turn. As my noble friend said, Amendment 75 relates to the quarterly report that the Treasury lays before Parliament on the operation of the asset-freezing regime. The amendment specifies that the number of licences granted, varied and revoked should be included in the report. I assure the Committee that we are committed to ensuring the transparency and accountability of the asset-freezing regime, and that is why we have enshrined the practice of reporting to Parliament in the legislation. The report already provides information on many aspects of the operation of the regime, including the number of licences that have been granted each quarter, and I do not foresee any difficulties in providing the further information requested. Indeed, I am happy to commit to providing such information in the quarterly report under the powers proposed in the Bill. On that basis, I do not believe it is necessary to set out this detail in the legislation and I hope that my noble friend will withdraw the amendment.

Amendment 76 is a consequential amendment that relates to earlier amendments tabled by my noble friend, in particular those relating to Clause 2 that sought to provide the court with powers under Part 1. The amendment simply alters the language of Clause 24(1)(a) so that the quarterly report that the Treasury is required to prepare includes references to the exercise of the powers conferred on the Treasury and the court under Part 1. Having had the discussion on the amendments that seek to give the court various powers under Part 1, I am sure the Committee will agree that further discussion on this point now falls away and is no longer necessary. I therefore hope that my noble friend will not move this amendment.

Amendment 77 requires the Treasury to consult the Home Office about the appointment of an independent person to review the terrorist asset-freezing regime. I am not sure precisely what the intention is behind it and whether it is envisaged that the Treasury might ensure that the same person will be responsible for this review as the other reviews of the UK’s counterterrorism legislation. I can certainly see merit in such an arrangement, but there is also a need to ensure that the reviewer can give sufficient time and attention to this particular role.

The decision of who will review the asset-freezing regime has yet to be made. We will consider the appointment very carefully and in doing so will work closely with the Home Office. We will of course also consult other Whitehall departments where appropriate. We therefore broadly agree with the intention behind the amendment, but I hope that noble Lords will agree that it is not necessary to amend the legislation to reflect what I can assure the Committee will happen in practice.

Amendment 78 would require the independent reviewer to make recommendations in his or her first report on whether domestic asset-freezing legislation should be consolidated. It is a topic which the House discussed at some length at Second Reading. As is recognised by the Committee, we do not have the luxury of doing that within the scope of the present Bill.

The purpose of the independent review under this Bill is to report on the use of the powers included in the Bill. We believe it is important that the independent reviewer is free to examine any aspect of the asset-freezing regime and accordingly free to make any recommendations that he or she chooses. This may include recommendations on the desirability of consolidation of the asset-freezing regimes, but we believe that this is a decision that should be left to the reviewer. I hope therefore again that the Committee will agree that it is not necessary to amend the Bill and that the noble and learned Lord will not press his amendment.

Amendment 79 would require the Treasury to publish the expenses and allowances paid to the independent reviewer of the operation of the asset-freezing regime. We assume that the intention is to provide further transparency in respect of the costs associated with the independent review. We would be happy to publish this information if requested. Again, I hope that the Committee will agree that it is not necessary to amend the Bill to require the disclosure of this information, although, as I say, we will be happy to publish it. I hope therefore that the noble and learned Lord will be happy not to press his amendment.

[Baroness Hamwee]

My Lords, I am grateful to the Minister. With regard to Amendment 75, I think he said that I was seeking information about the number of licences. In my mind, I was going rather wider than that. I do not think that this is just a matter of number, but I am not sure whether I heard him correctly. He might want to come back on the content of licences as well as the number. That is what I was looking for.

The second amendment was consequential. I am not sure that it quite falls away given that we have progressed with regard to the court’s role by including appeals as well as judicial review. It would be quite perverse if the reviewer did not cover appeals and judicial reviews, so I do not think that I need to press that further.

The Minister asked whether I had in mind the appointment of the same person by the two departments for the different types of review. That was not what I was thinking of; rather it was the crossover of responsibilities between the Treasury and the Home Office as they are both involved in the same subject matter. However, he has given me the assurances I sought. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

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Moved by

[Baroness Hamwee]

80: Clause 28, page 14, line 1, leave out “or connivance”

[Baroness Hamwee]

I will be quick. Clause 28 provides for offences by company officers and uses a term that I have not seen before in legislation—that they “connive” with or in something. Connivance is a term one associates with PC Plod rather than with statute, and I wonder whether this is the first time it has been used in legislation. I understand what it means, and perhaps this is a rather frivolous amendment. If so, I apologise. However, it struck an odd note.

More seriously, Amendment 81 would change the trigger for the offence in subsection (1)(b) from “neglect” on the part of a company officer to “recklessness”, implying that the person knows the likely consequences of his action. A word or two in defence of “neglect” is what I am seeking, or, of course, agreement to the amendment. I beg to move.

[Lord Sassoon]

I am happy to confirm for my noble friend that the language in respect of both issues is in fact standard language in other legislation. On the question of “connivance”, the term is standard—it is used in Section 14 of the Bribery Act 2010, for example—so the Government believe that the clause should remain as drafted. If the Committee would like more explanation, I am happy to give it, but I can give an assurance that it is standard language.

Similarly, on Amendment 81, I should make the important point that again the language as it stands in the Bill is standard and follows the drafting in other pieces of legislation. Noble Lords may be familiar with Section 37 of the Health and Safety at Work etc. Act 1974 and Section 186 of the Licensing Act 2003. Again, while I would be happy to go through the reasoning behind the substantive clause as it stands, I hope my noble friend will be content with the reassurance that these are standard provisions, and that she will withdraw her amendment.

[Baroness Hamwee]

Shucks, I never thought of health and safety. I would not seek to detain the Committee by asking the Minister to give more examples now. Perhaps he will write to me on the second of the amendments with the other examples he has because they sound not entirely different but a little different. He is nodding and I take that as agreement. I am grateful. I beg leave to withdraw Amendment 80.

Amendment 80 withdrawn.