Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Wednesday 16th February 2011 Lords Chamber

Moved by

[Lord Pannick]

As an amendment to Motion B, leave out from “House” to end and insert “do insist on its Amendments 16 and 19”.

[Lord Pannick]

My Lords, I apprehend that the House will not want me to rehearse the merits of the substantive amendment to Clause 11 and respond to the criticisms of it. Your Lordships heard that debate last week. It was a very full debate and the House voted by a healthy majority to accept the amendments.

I listened to the debate yesterday afternoon in the other place. All the points that were made by the Minister, Mr Mark Harper, and the points that were made again today by the noble and learned Lord were ones that I sought to address and answer in the debate last week. I will not repeat any of that. Nothing new was put forward yesterday or this afternoon.

I should also mention—it was a point made by the noble Lord, Lord Higgins, in the debate earlier today—that on the Commons consideration of the Lords amendment yesterday the time for debate on this issue was limited to one hour. Of that one hour, the Minister, Mr Mark Harper, spoke for almost 40 minutes. Admittedly, there were interruptions during that time, but that is what happened. The actual debate from other Members of the other place—on what we all agree is an important constitutional issue and on which this House has expressed a very clear view—lasted 20 minutes. I take the view—other noble Lords will take their own views—that this is highly relevant to the question of whether or not this House ought to ask the other place to look again, and to look again seriously, at this issue.

Before I turn to the two points that I want to make, I suggest to the noble Lord, Lord Kilclooney—I am sorry that he is not in his place—that he might, on reflection, consider that he was a little unfair to the Deputy Prime Minister in the debate this morning. I was one of the Cross-Benchers invited to meet Mr Clegg to discuss the substance of my amendment. I very much welcomed that and the opportunity that I have had throughout our consideration of this Bill to discuss these matters with the noble and learned Lord and with the Bill team. I thank them for the exchanges that we have had. I understood the invitation from Mr Clegg to be a recognition—and a very proper recognition—that on the Cross Benches we put forward amendments when we think it appropriate. Each one of us considers them on their individual merits; each one of us, without being whipped, votes as we think is appropriate on that particular matter. I put on record our gratitude—I am sure that I am not the only Cross-Bencher who thinks in this way—to the Deputy Prime Minister for taking the time and trouble to meet with us. It is not appropriate for him to be criticised for doing that.

--- Later in debate ---

If it is a matter of principle that we should be asking the other place to consider, there is an important principle, which we have now accepted, that the next election should be fought on up-to-date boundaries and on the principle of equality of votes. On that basis, I invite your Lordships to reject the amendment proposed by the noble Lord, Lord Pannick.

[Lord Pannick]

I am grateful to all noble Lords who have spoken in this interesting and important debate. The noble Lord, Lord King, suggested that I had come perilously close—I think that that was his phrase—to suggesting that we enjoy some sort of superiority over the other place. I am very sorry if I gave that impression to the noble Lord. That was certainly not what I said and certainly not what I intended. My suggestion, which is I think a modest one, was that in all the circumstances that I indentified in my earlier remarks, it was appropriate for this House to ask the other place to think again about this matter.

The noble Lord, Lord King, and the noble and learned Lord, Lord Lloyd of Berwick, along with the Minister, asked what the constitutional importance is here and why we should be worried about this matter. The constitutional importance is that we are debating a Bill that addresses perhaps the most fundamental aspect of our election law, such as questions of constituencies and the size of constituencies as well as questions on the electoral quota. The constitutional significance is whether this House really should approve an inflexible formula—that is what it is—that prevents the Boundary Commission going outside the 5 per cent quota whatever the circumstances it may find in any particular case.

The noble and learned Lord, Lord Mackay of Clashfern, expressed a concern that the substantive amendment would create a real risk of the boundary reviews not being completed by October 2013. I have enormous respect, as he knows, for his views and judgment—and that is not something that I say about all those whom I have represented in judicial reviews, as I did when he was the Lord Chancellor. However, I do say to him and to other noble Lords that in the context of the task already being imposed on the Boundary Commission, the additional discretion to avoid this inflexibility cannot cause real practical problems. The Boundary Commission will, in any event under Clause 11, be obliged to look at precisely these geographical factors and local ties in order to assess in its judgment whether it should move up to 5 per cent. All the amendment does is to give the Boundary Commission discretion when it has carried out that exercise and, because of the exceptionally compelling nature of the circumstances, thinks that it should move to 5.1 per cent, for example, to avoid some arbitrary barrier.

I understand the concern about judicial review, but the Administrative Court is quite capable of hearing cases speedily when that needs to be done. It does it every day. It recognises, because it does it every day, that public bodies should be left themselves to decide on the application of narrow exceptions given them by Parliament.

The noble and learned Lord, Lord Mackay, expressed agreement with my criticisms of the Government’s conduct in relation to the Select Committee reports. I suggest to noble Lords that this is surely relevant when they are considering whether we should take the view that the Government and the other place have not yet adequately considered the views of this House and whether the matter should be looked at again.

The noble Lord, Lord King, congratulated me on making what he described as a persuasive speech earlier this afternoon. I suggest to noble Lords that sometimes a speech may be persuasive because it is actually right. I ask noble Lords to accept that it is appropriate for this House to ask the other place to think again on this matter. I wish to test the opinion of the House.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Monday 14th February 2011 Lords Chamber

Moved by

[Lord Pannick]

3: Clause 11, page 11, line 1, after “4(2),” insert “6,”

[Lord Pannick]

My Lords, the amendment is entirely consequential on the amendment to Clause 11 that was carried on Report last Wednesday. It is a tidying-up amendment. I hope that it is entirely uncontroversial.

[Lord Wallace of Tankerness]

As the noble Lord, Lord Pannick, indicated, this is a consequential tidying-up amendment following the amendment that was passed last week. We had a good debate on the issues. The House made its decision and we share the concern that any statutory provision should be technically effective. The Government are considering the way forward on this issue. We will set out our plans when the Bill returns to the other place tomorrow and your Lordships' amendments are considered. On that basis, the Government do not object to the amendment.

[Lord Pannick]

My Lords, I beg to move.

Amendment 3 agreed.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Lloyd of Berwick]

Experience shows that where two or three lawyers are gathered together one is sure to disagree. I entirely agree with every word that has fallen from the noble Lord, Lord Marks, which I am afraid inevitably means that, with great respect, I venture to disagree with the noble and learned Lord, Lord Woolf. He suggested that the advantage of his proposals was flexibility. I suggest that the disadvantage is an absence of simplicity. I can see no possible advantage in having a double decision process in a matter such as this. On the face of it, one would think it must increase the likelihood of an application for judicial review. In any event, the question should not be decided simply by that—it was a strong argument at one stage. But now we have before us not the original amendment proposed by the Convenor, the noble Baroness, Lady D’Souza, which in its way was a very good amendment, but an amendment from the Government containing everything that was in that amendment, which, to my mind, is essential. A public inquiry as such is not essential. A public hearing is, and that is what is promised.

[Lord Pannick]

My Lords, I share the Government’s objective here, which is to make this process more efficient. At the moment it is not efficient. It is too slow, too cumbersome and there are too many lawyers involved. I therefore share the Government’s objective. However, I also share the concerns so eloquently expressed by the noble and learned Lord, Lord Woolf. The Government will abolish any effective inquiry and will introduce a procedure which will ensure that the decision-maker—and here I say to the noble Lord, Lord Marks, and the noble and learned Lord, Lord Lloyd of Berwick, that there is only one decision-maker on the opposition amendment: the Boundary Commission—does not hear the oral representations that have been made. The person who does hear those oral representations has no role in communicating to the decision-maker any advice on what he or she thinks of what he or she has just heard. It is absolutely inevitable that the introduction of such a procedure will exacerbate rather than diminish the sense of grievance that has led people to make representations in the first place.

[Lord Martin of Springburn]

When the noble Lord mentions the Government’s proposals, is it the case that those proposals will not allow cross-examination at the inquiry?

[Lord Pannick]

As I understand it, that is the position. The opposition amendments will leave that to the discretion of the person who is hearing the representations, which seems to me right and proper. The proposal from the Government at the moment is a sort of legal interruptus in which the person hearing the material will end the process in a profoundly unsatisfactory way—unsatisfactory to the person who made the representations—because nothing arises from that other than communication to the decision-maker who has not actually heard what has been going on.

[Lord Thomas of Gresford]

Does the noble Lord not agree that the person to whom he refers, the person who would be aggrieved, would prefer that their contribution goes directly to the decision-maker and is not filtered in an intermediate stage by the chairman, who may have all sorts of views of his own and may colour the way in which that person wants his representations to be heard?

[Lord Pannick]

I would say to the noble Lord, Lord Thomas of Gresford, that in my experience it is most unusual indeed to arrange for oral representations, and let us not forget that this is what the Government are rightly proposing, in which the person hearing them then has no role, not even an advisory one. It is my experience in all areas of the law, and I hope that it is the experience of the noble Lord as well, that if you give people a fair hearing and then a reasoned conclusion at the end of it, even if it is only advisory in nature, they are normally—not always—prepared to accept the result, however disappointing it may be. The Government’s proposals, by contrast, will inevitably raise expectations which they cannot satisfy and which will inevitably frustrate and anger people, who will inevitably feel that this is a charade. On a matter as sensitive and important as constituency boundaries, it is vital for this House to maintain some genuine process of inquiry leading to a result, even if it is only advisory. Inquiries have contributed substantially to the confidence that all sections of the public now have in the process of boundary review.

--- Later in debate ---

[Lord Thomas of Gresford]

Would the noble Lord not agree that if the Boundary Commission failed to follow the recommendation of the first decision-maker— which may be provisional—that would inevitably trigger judicial review? That is the problem when you have double decision-making.

[Lord Pannick]

I am sorry, but I simply do not accept that. The noble Lord is very familiar with the general process of planning inquiries, when advice is regularly given that is not followed by the decision-maker. The courts are sophisticated enough to understand in this sensitive area that advice is not necessarily followed. The Boundary Commission is the decision-maker. If I were to go to the court tomorrow and rely on advice that the Boundary Commission had rejected, and if that were the basis of my judicial review, the case would not last very long, as I think the noble Lord knows.

[Lord Thomas of Gresford]

My Lords—

[Lord Pannick]

I have taken a number of interventions. This is Report, and I hope that the House will agree with me that it is appropriate that we proceed with this matter.

Even at this late stage, will the Minister and the Government please think again? They can make this process more efficient, but they should not abolish the inquiry, which is what they are in effect doing, as it serves a very valuable purpose.

[Lord Faulks]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, described this proposal as being culturally different from what had gone before. He is right in one sense, but I respectfully suggest that it is very much in line with the way in which a lot of procedures are developing. We are not obsessed by prolonged oral hearings with laborious cross-examination, dominated by lawyers—and here I must declare an interest as a member of that much maligned species. Rather, it is a sensible way of dealing with matters so that there can be full written representations followed by a public hearing. I think that the expression “public hearing” is an attractive one, as opposed to a “public inquiry”, which sounds rather murky and obscure from the point of view of the public, for whose benefit it is supposed to be.

I hope very much that such a hearing will be “lawyer light”. There is no need for the chair to be a lawyer; it might be better if they are not. What we require from the chair is someone who is capable of organising a hearing at which everyone who has a reasonable interest in a matter can have their interest properly heard and recorded. I accept the observation by the noble Lord, Lord Rooker, that there is no need to stick to strict court hours, and one hopes that the chair will allow a longer period as necessary.

We are talking about, I hope, an informal but thorough hearing. It allows what, as I understood it, the Opposition required—in effect, a day in court, an opportunity for people to say that they have said something as well as written something. This seems to be an extremely practical and fair solution, and I will support it.

[Lord Tyler]

My Lords, I am encouraged by the noble Lord, Lord Rooker, to make a brief intervention, because I am not a lawyer. Until he spoke, everyone was speaking with huge legal experience.

I have a practical question that your Lordships’ House needs to give some attention to. It seems to me that the danger is not successful judicial review—or any sort of legal challenge—rather, it is that all over the country the opportunity will be taken to try and delay the process, for reasons that we all understand, so that the changes will not be in place ready for the 2015 election. I have appeared at inquiries and before commissions—unpaid, of course, as I was not a lawyer. I was reminded of this by the noble Lord, Lord Rooker. Imagine the circumstances when a number of MPs who see their seats being changed do not necessarily think that they could be successful at judicial review but think it is worth trying to delay the process. There could be 400 applications for judicial review. That seems to be the danger.

I understand what the noble Lord, Lord Pannick, is saying. I understand what other lawyers are saying. My fear is simply that this process will be undermined not by successful judicial review but by attempts to try and delay the process. If that is the game that we have to foresee, then your Lordships’ House will be blamed for delaying an important process that will give equality of votes to a lot of our fellow citizens.

[Lord Pannick]

Does the noble Lord understand that no judicial review may be brought without the leave of the court? Does he understand that the courts are highly experienced in hearing speedily—by which I mean within days if necessary or within weeks—any case that is urgent, as these cases, if they were brought, would clearly be?

[Lord Campbell of Alloway]

Very briefly, my Lords, I got involved in this affair with a lot of other members of the Bar and I have to say where I stand. I totally support the legal analysis of the noble Lord, Lord Pannick, who is totally correct. Of course, it puts me in a very odd position because I am a Conservative and part of the coalition, but I cannot help that. I know that what the noble Lord said is right.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Howarth of Newport]

Everything that my noble friend Lord Dixon has just said should definitely go into the leaflet, as should the remarks of my noble friend Lord Grocott. If the leaflet is a little bit longer, so be it. My noble friend Lord Lipsey wants the leaflet to summarise the meaning of the referendum question. I see difficulty in that because one would hope that the question that would be put to people in the referendum would be so succinct and easy to comprehend that it would be incapable of being summarised in the way that my noble friend has suggested. There is a good deal to think about.

My final worry is that a leaflet coming through the letterboxes of the land would on a great many doormats be regarded as junk mail and the chances are that it would not even get read. How the Electoral Commission is to acquit itself of its responsibilities and inform the people of this country about the nature of choice they have to make bristles with difficulty, and I am not at all convinced that we should be very prescriptive or contend that we know best how this should be done. I therefore tend to favour the amendment tabled by the noble Lord, Lord Low of Dalston.

[Lord Pannick]

This matter should be decided by pragmatism rather than philosophy. I suggest to the noble Lord, Lord Davies of Stamford, that the contrast between paragraph 9(1) and paragraph 9(2) makes perfect sense. The Electoral Commission has a duty to inform people about the existence of the referendum and about how to vote in it, and so it should. It is given a discretion about whether it attempts to summarise the arguments on both sides. The reason it is given a discretion is because whether and to what extent it should inform people on those controversial matters depends on how much other information people are going to receive on both sides. As has already been said by many noble Lords, it depends on whether it can do that job impartially, which is exceptionally difficult, and it depends on the time constraints.

[Lord Phillips of Sudbury]

I hesitate to interrupt the noble Lord’s flow, but would he like to reconsider? He has just said that the Electoral Commission has the discretion to summarise the arguments on each side. I do not believe that that is what paragraph 9(2) says. The Electoral Commission has the discretion to summarise,

“information about each of the … voting systems”,

which is not the same as the arguments.

[Lord Pannick]

That is information about the detail of the competing voting systems which are under discussion in the referendum. It is one thing to say to the Electoral Commission, “You must tell people about the existence of the referendum, their right to vote, and when it is going to take place”. That is perfectly sensible and it must do that.

[Lord Anderson of Swansea]

I heard the noble Lord submit that the discretion of the Electoral Commission on whether to give information by way of an information pamphlet will depend—or should depend—on how much information is available from other sources. How will it know, in a timely manner, how much information will be available from other sources? Clearly the other sources could include the umbrella organisations; they could include newspapers which, no doubt, will take sides during the campaign. If the Electoral Commission is to publish a leaflet, it must surely know in very good time how much information is to be provided from other sources.

--- Later in debate ---

[Lord Pannick]

I respectfully take the noble Lord’s point. I therefore assume that in the proper exercise of the discretion rightly given to it by paragraph 9 (2), the Electoral Commission will be preparing material which it may decide is appropriate to send to members of the public. But that is a matter for the commission.

[Lord Davies of Stamford]

As the point has already been made, there is no reference to summarising anything in this paragraph. It says:

“The Electoral Commission may take whatever steps they think appropriate to provide information”.

I hope the noble Lord agrees with me that that could equally well cover my proposal of arranging for the distribution of material produced by, for example, the organisations running the two campaigns. It is very important that we make it clear that there is that possibility there. That is encompassed within the existing text. The suggestion of summarising something, or producing pamphlets, is an additional issue that we are raising today in the course of debating these amendments.

[Lord Pannick]

I agree with the noble Lord, Lord Davies of Stamford, and that is why I am perfectly content with the existing wording which gives a free discretion to the Electoral Commission to take such steps as it thinks appropriate in all the circumstances as they transpire. We are making heavy weather of this.

[Lord Graham of Edmonton]

The Leader of the House, who is replying on this debate, has a very important task before him. Whatever he is going to do with the various amendments, it is plain that, in the light of the time constraints under which he and the Committee are having to work, he has a herculean task in guiding the Committee and in guiding the Bill into an acceptable form. Even in this House, where perhaps we are better informed than any other forum, there is uncertainty about the interpretation of the Bill.

The Leader of the House will remember, as I do, the 1975 referendum, when I was the Member of Parliament for Edmonton. I did what I had to do. I wrote articles for the local press, and had various meetings, but finally my dilemma on how my constituency wanted me to vote was resolved. My constituents in Edmonton quite clearly said to me, by two to one, that they were in favour of staying in the Common Market. After all the work that had been done in the campaigns and by the political parties, I received three letters—two of them were in favour and one of them was against.

Those who are seeking to alter the system have a great responsibility. I do not doubt for a moment their sincerity in believing that there is a better system, but it is clear from what has been said that changing from first past the post means that there is a herculean task ahead for all of us to persuade people that there is a better system. In three months’ time we will have the referendum, if the Bill in fact passes, so there is a great responsibility on everyone in this House.

Sometimes I think that we take too much for granted and that matters that move us in this place are a common expression of the views of the people in the constituencies and in the country. I do not think that that is necessarily so. I hope very much that the Leader of the House, in replying to the debate, recognises that he now has an opportunity not only to guide the Bill, but to assuage the passions that will be unleashed upon him when a decision is taken. We will face many problems on Report and at later stages of this Bill, so I would welcome a lead from the Minister to indicate that this is a matter upon which he and his colleagues will reflect in a timely way in order to guide the House.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I bow to the noble Lord’s very great experience, not just as a former Speaker but as a parliamentarian. But, of course, we are where we are. The point that I wanted to make was that the identity between communities and Members of Parliament is very important. I am supporting my noble friend in the hope that the Government will recognise that the Isle of Wight has just as strong a case. The noble Lord, Lord Dubs, said, that it should have one constituency; it could have two and still be closer to the criteria set under the Bill than either the Western Isles or Orkney and Shetland.

On the point made by the noble Lord, Lord Martin, the Government, in looking at the Isle of Wight, should also think about this point about the identity between Members of Parliament and constituencies. This is not just a numbers game. If we end up making it a numbers game, we may very well find that the respect, support and influence that Parliament is able to bring to bear through its Members in their constituencies are greatly diminished at a time when we need to strengthen Parliament. That seems to me to be a very retrograde step.

On the other point that the noble Lord made, we have had a long debate about the procedure which in effect is bringing a guillotine to this House. That would, of course, bring all the disadvantages that we see in the Commons, which is why our workload has gone up. It was Robespierre who invented the guillotine and he ended up being a victim of it himself. I venture to suggest that this House may like to consider that example.

[Lord Pannick]

The strength of the case for this amendment confirms the mischief in this part of the Bill which we debated in Committee yesterday. The rigidity in the formula contained in rule 2 allows for these vital geographical and local considerations to be taken into account only in the two specific cases or within the rubric of the 5 per cent tolerance that the Boundary Commission has. We can seek to address this specific case, and there are many other examples—perhaps not quite as strong as the Isle of Wight—of particular local and geographical considerations, by adding one or two more exceptions to rule 2. Or, as I would prefer, the Government could now recognise that the rigidity of the Bill is quite indefensible. We desperately need a broader exception which allows the Boundary Commission to take account of these factors in what it regards as exceptional cases, of which the Isle of Wight is plainly one.

[Lord Desai]

My Lords, just before the closure we were talking statistics, and I make a small statistical point. The Government want to equalise the constituency boundaries, which is a very laudable aim. With the best will in the world, they may be able to do it in 99 per cent of the cases within three standard deviations; that still leaves six spare seats out of 600. The Government should not feel too nervous about having one more exception. The Government should say that it is just not humanly possible to fit everything within 598 seats. It is possible to allow a little bit of slack and, if the Government do, they will not lose the thread completely, and it will help many Members of your Lordships’ House to breathe easy.

Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Tuesday 18th January 2011 Lords Chamber

[Lord Pannick]

Will the noble Lord give way?

[Lord Wallace of Tankerness]

Perhaps I can answer the noble Lord before I give way to the noble Lord, Lord Pannick.

That leads to the kind of inequality about which I think that there is serious concern around the House. The reason why the Government have come forward with the 5 per cent margin is that we believe that the core principle of equality of value—one vote, one value—is of the utmost importance. Although we acknowledge and make provision for room for the Boundary Commission to go either side of that principle of one vote, one value, to try to bring in some of the other flexibilities—although it is always good to be thought to be flexible—will take us back to the situation under the present Boundary Commission rules, where there is greater diversion from the norm.

[Lord Pannick]

Does the Minister recognise that there is concern on all sides of the House about the excessive rigidity of the Government's proposals? If the amendment is not acceptable—I understand what the noble and learned Lord says—will he at least consider bringing back to the House an amendment which says something to the effect that the Boundary Commission should have discretion outside the 5 per cent principle either way if it considers that there are exceptional circumstances for a particular constituency?

[Lord Wallace of Tankerness]

Tempting though it is to accede to that immediately, I cannot, standing here today, give that undertaking to the noble Lord, Lord Pannick.

[Lord Pannick]

I am not asking the Minister to agree to it; I am asking whether he is prepared to consider it seriously and bring it back to the House.

[Lord Wallace of Tankerness]

I perhaps misunderstood what I was being asked to do. I thought that I was being asked to give a commitment to bring back an amendment, which I cannot do. The force of argument on all sides of the House is considerable and I have no doubt that the comments made on this matter will be considered. I do not want to make a commitment which I cannot deliver, but I can honestly say that I will ensure that the forceful comments that have been made from all sides of the House on this point will be acknowledged.

I could give some examples where the present system does not deliver on the principle of not crossing county boundaries, and how I believe that under what we propose, the ward system will, for the most part, be upheld in England. I am not sure that I can elaborate much further. I say to my noble friend Lord Crickhowell that if similar arguments apply in the rest of the United Kingdom, they will apply in Wales. Under what my noble friend proposes, the number of Members from Wales would not increase. I do not think that he was arguing that, but much of the argument in Wales has focused on the number. I would not want the House to be given the impression that somehow my noble friend's amendment would increase the number of Members from Wales.

I have tried to be helpful. We believe that we have imported flexibility, but important contributions have been made to the debate, and we are honour bound to consider them. I also make very clear that I do not want to be misunderstood as making a commitment that I may not be in a position to honour.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Pannick Excerpts

Wednesday 6th October 2010 Lords Chamber

[Lord Lloyd of Berwick]

Perhaps I may be permitted to start the ball rolling before my noble friend Lord Pannick speaks. I am sure that your Lordships are waiting to hear his views, but as I did not have an opportunity to take part in the Second Reading debate, perhaps I may express my views on the amendments first.

The government amendments were published only on Monday, so I saw them only yesterday. We have not had long to reflect on them, but one thing that is clear is that the Government have listened to what was said on Second Reading, they have studied carefully what was said in the excellent report of the Constitution Committee and they may even have had a preview of what the Home Office review will say on the subject. On any view, the Government have kept an open mind on the matter up till now, which should surely be a subject for congratulation. If I may say so from the safety of the Cross-Benches, that makes a welcome change.

The amendments now proposed are so fundamental that at this stage we need another Second Reading debate, particularly in relation to what is proposed in the appeal to the High Court on fact as well as on law. That is a fundamental change of huge importance, and we will come to that later.

On the matters covered by this group of amendments, I start with the new interim designation order. That seems to be the logical starting point, although of course it will come later chronologically as we go through the Bill. There may be those in the Committee who will object to “reasonable suspicion” in relation to the interim designation order. Some may prefer “reasonable belief” in that context, as well as in the context of the final designation order. I do not share that view. Reading the new clause took me back to what I wrote in 1996 on page 86 of my report. I have many spare copies of that report at home if anyone would like to see one. That was of course long before 9/11 and long before Resolution 1373. I said then that there should, exceptionally, be a power to freeze assets before the suspect is arrested or charged. It should be open to the police to go before a judge ex parte—that is, without notice to the defendant—and satisfy him that they have reasonable grounds for suspecting that the defendant is about to commit a terrorist offence. I recognised then that that would be a radical step to take but I said that it was justified because of the paramount need to neutralise terrorist funding before the terrorist offence is committed.

Therefore, I have no difficulty at all with “reasonable suspicion” in relation to the interim designation order. The problem as I see it is somewhat different. If the designee, if I can call him that, is able to go before the judge as soon as he has notice of the order, as is now intended, would it not be altogether more sensible for the judge to make the order in the first place? That is how it is done in other branches of the criminal law, so why not here? What is the reason for the Treasury making the order itself rather than applying in the ordinary way, with which we are all familiar, to the judge? So much for interim designation orders.

I turn to the final designation order. Of course I welcome the change from “suspect” to “believe”, although in practice there may not be quite as much difference between those two things as is sometimes supposed. The real problem here, as indeed in the case of interim designation orders, is that, a fortiori, if we are to impose a permanent designation on the individual, we surely need something much more solid than either suspicion or belief. We need fact. Before we impose a final designation order or final freezing order on all his assets, the defendant must surely have been arrested or charged with some criminal offence. That was certainly my view in 1996 and it is certainly Liberty’s view today in its, as always, excellent briefing paper. However, more important than either of those, it was the view of the noble and learned Lord, Lord Phillips, in Ahmed. In that case, he referred to paragraph 1(c) of Resolution 1373 and then went on as follows:

“Thus what the Resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on a criminal charge, but would make the long-term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.

As I understood the noble Lord, Lord Sassoon, he does not accept that, and he does not accept that that is the view formed by the Supreme Court. But with great respect, it seems to me that that was its view. It comes to this. The noble Lord has gone a very long way to meeting all the problems that we raised on Second Reading and that have been raised elsewhere. But I ask him to go one step further. Can he agree between now and Report that the final orders should be made by a judge on the application of the Treasury? If so, he will have my complete support on that occasion. And more importantly, it will be in line with what I believe was the intention of the Supreme Court in Ahmed.

[Lord Pannick]

The reasonable suspicion criterion was a feature of the Bill that caused concern both in your Lordships’ House and elsewhere. Concern was expressed during passage of the temporary provisions Bill earlier this year; expressed by your Lordships’ Constitution Committee; and expressed by a number of your Lordships in Committee. The concern, quite simply, was that the Government should not enjoy the power to freeze a person’s assets, with all the damage and inconvenience that that involves, unless they have at least a reasonable belief that the person concerned is involved or associated with terrorist activity. That is why I tabled Amendment 3, to which the noble Baroness, Lady Hamwee, has added her name. It would substitute reasonable belief for reasonable suspicion.

I am very pleased that the Minister has listened to the arguments. He has accepted that, other than for a temporary period of 30 days, assets should be frozen only when the Government believe, on reasonable grounds, that the individual is involved with terrorist activity. I am sure that all noble Lords will be grateful to the Minister and his team for their response to the expressions of concern, and for the care with which they have drafted and presented these amendments. For my part, I accept that it is appropriate for the Government to have an interim power to freeze assets for a period of 30 days simply on the basis of reasonable suspicion. I accept that because there may be cases when they have only limited information and reasonably wish to act to prevent dissipation of the assets while investigations are concluded. A period of 30 days seems a reasonable time for that interim exercise. Of course an interim order, although undoubtedly very inconvenient for the person concerned, will not have the same draconian effect as a freezing order that continues for a lengthy period. I welcome the government amendments.

There are three points of detail in relation to the amendments in this group. First, it would be desirable for Amendment 29—the new clause which confers power on the Treasury—to make an interim designation to specify the purposes for which the power may be exercised. I am concerned that the drafting does not identify the specific mischief that the interim designation for 30 days is designed to meet. Subsection (1) of the proposed new clause simply repeats the substantive criteria for a final designation save that the criterion for the interim designation is reasonable suspicion rather than reasonable belief.

--- Later in debate ---

[Lord Sassoon]

I am grateful to the noble Lord, Lord Elystan-Morgan, but I must reiterate that we are trying here to achieve the protection of the public against active, live terrorist attacks. In order to do that, Ministers need to be able to exercise immediate discretion to stop the flow of money—as we know, very small sums of money can create enormous disruption. Ministers must have appropriate powers to disrupt the terrorist threat. That means that it is important that the freezing net is drawn so that those who are involved in supporting or facilitating the activity are caught in it, but, as the evidence becomes clearer, the Treasury must be concerned at all times that the designation is necessary for public protection. Where an individual may have been part of a wider group that is involved in terrorist activity but where it has subsequently become clear that the individual’s involvement was purely incidental and that they themselves were not supporting or facilitating terrorism, it would be difficult to demonstrate that a freeze was necessary for public protection. Freezes cannot be imposed or maintained unless the second limb of the test is met.

I return to the analysis by my noble friend Lord Carlile of Berriew. I believe that protections are in place and that we must not forget that second limb. For those reasons, I hope that, on reflection, my noble friend will be prepared to withdraw her amendment.

[Lord Pannick]

Before the Minister finishes, is he prepared to give the assurance that the concept of being involved must connote some culpability, some knowledge—some recklessness, at least—and that a perfectly innocent person caught up in events would not be covered?

[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.

--- Later in debate ---

[Lord Pannick]

My Lords, I, too, welcome government Amendment 57 on the right of appeal. This seems to be a strong safeguard, which renders insubstantial the concern that the original decision is taken by the Executive. That of course is subject to two matters on which I would ask for reassurance from the Minister. First, would the Government expect provision to be made for an urgent appeal against the decision to make an interim designation? The new clause allows a right of appeal against the interim designation, but there is little point in providing such an appeal unless it is heard speedily, given that the interim designation will last for only 30 days.

Secondly, the appeal will be decided by the judge, as I understand it, only on the basis of evidence which is disclosed to the subject of the order. Will the Minister reassure me that nothing in the amendments allows the judge on an appeal to have regard to evidence which is not disclosed to the individual—the problem in control order cases which led to the decision of the Appellate Committee in the case of AF?

[Baroness Noakes]

My Lords, the Government’s move away from the judicial review basis to a more natural appeals process for designations in their Amendment 57 is welcome. It shows that the Government have been listening to concerns about civil liberties in this Bill.

However, I have continuing concerns about Clause 22, and for that reason I shall speak in support in particular of Amendment 62 in the name of the noble Baroness, Lady Hamwee. Before I do so, I have a question for the Minister in connection with government Amendment 57, which sets up the new appeal process for designations. Am I correct that there is no provision for any appeal against the decision taken in the High Court or the Court of Session? Does it mean that the appeal process, so far as the designated person is concerned, ends there? I am not sure whether I mind one way or another, but I would be grateful to know what the Government’s position is on that.

I turn to the remaining decisions that will be dealt with under the terms of Clause 22. I accept that designations may appear to be the most important of the decisions the Executive will take in relation to the matters covered by the Bill, but decisions about licences are also vital for people who are designated. The licence regime will allow living expenses for those individuals, or possibly for the expenses they incur in order to carry on their business or trade. I spent most of the last 10 years on the Benches opposite arguing, in various circumstances, why people should not have to rely on judicial review when they get enmeshed in one Act or another. I argued strongly that judicial review is an unsatisfactory process for the citizen. That is because while the courts may well be expanding a little at the moment, typically they have involved themselves in or interfered with decisions of the Executive only where they are perverse in one way or another—perhaps because no normal decision-maker could have made the decision, the decision-maker took account of irrelevant facts or failed to take account of facts that were clearly relevant. Any civil servant worth his salt knows how to protect his Ministers from a judicial review challenge. Such a challenge is much more about form than substance, so I have never seen judicial review as something that gives the citizen much protection. If the person affected by a designation cannot convince the court that the decision was perverse in one way or another, there will no remedy at all.

The noble Baroness, Lady Hamwee, has alluded to the question of whether the court can vary the terms of a licence. If they fail to establish a perverse decision at judicial review, there will be no remedy, and if they could establish that a decision was perverse, which would probably be unlikely, there is then a question of whether any remedy is available at that stage or whether the matter has to go back to the Treasury for a further determination.

I hope that the Minister will reflect further on the Government’s position in Clause 22 and look again at whether the safeguards for those who are designated are adequate in those circumstances that go beyond the actual designation. It is good that we have moved to designations and it would be good if we could move a little further.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

This has been a useful debate. There has been a general welcome from all sides of the Committee for the Government’s amendments, which introduce an appeal mechanism rather than judicial review for the core designation or decisions to vary or revoke.

Perhaps I could give some of the underlying rationale for the amendments. As introduced, Clauses 22 to 23 set out a procedure for review by the courts of any decisions taken by the Treasury under the powers provided in the Bill, including decisions to make, vary or revoke a designation, decisions in relation to licences issued or applied for, decisions whether to publicise the freeze generally or limit the scope of the publication for reasons of national security or justice and decisions whether to request or disclose information.

A number of noble Lords raised this matter at Second Reading. There were calls to amend the procedure for challenging asset-freezing decisions through the courts from a judicial review to an appeal. It perhaps answers some of the points made by my noble friends Lady Hamwee and Lady Noakes, to which I shall return in more detail, to say that we still believe that judicial review can be a very flexible tool, allowing differing degrees of intensity of scrutiny depending on circumstances and the impact of the decision in question on the individual concerned. In its report prior to Second Reading, the Constitution Committee acknowledged as a result of various court judgments the intensity with which courts scrutinise control orders where the legislation provides for a review applying judicial review principles. That is broadly equivalent to an appeal. Such an in-depth judicial review has been shown to be an effective safeguard in these cases.

Nevertheless, the Government believe that a similar full merits review should be adopted for court scrutiny of asset-freezing designations; that is, decisions to impose, to vary or to renew asset freezes. We believe it because, due to the lack of case law in this area, there is no certainty that the court would choose to undertake such a rigorous judicial review procedure—I think that that is the sense of the comments that were made at Second Reading. We have responded by tabling amendments to introduce an appeal mechanism for asset-freezing designation decisions, spelling out that we would expect a full merits-based review of such decisions to be undertaken by the court. Such an appeal would require both parties to provide the material underlying their case to the court, which would then conduct that full merits-based review of the designation decision, taking all evidence and substituting its own decision if necessary. This level of scrutiny is appropriate for designation decisions, because it is the core decision that will most affect the designated person’s human rights.

Perhaps I may respond to one or two of the specific questions asked in this regard. My noble friend Lady Noakes asked whether it was just a right of appeal at one level. As with appeals generally, it will be possible for appeals to proceed along the normal route, either through the English system or the Scottish system, and ultimately, if it is appropriate, to the Supreme Court.

The noble Lord, Lord Pannick, asked about expedition. He made the point that the provision applies to interim orders. By virtue of that, there would be an expectation that the courts would respond. Indeed, there have been a number of cases where the courts have shown an ability to respond with expedition. That is certainly what we would anticipate if an appeal was brought. On the question on disclosure posed by the noble Lord, Lord Pannick, it is clear from the terms of the Bill that provision and reference is made to the rules of court with regard to the special advocate system. It is therefore envisaged that the rules of court should provide for that system. There is a later amendment in the name of my noble friend Lady Hamwee on which we might be able to discuss this in greater detail.

My noble friends Lady Hamwee and Lady Noakes both raised other decisions where the position would remain as one of judicial review rather than appeal. The Government’s position on that, as for other decisions concerning implementation of the freeze, is that these are not as fundamental to the citizen as the original decision to impose the freeze. That includes the granting of specific licences and the publicity of the fact of a designation. It is certainly our view that maintaining a standard judicial review is appropriate in these cases. I certainly recognise the concerns raised by my noble friend Lady Noakes about judicial review but, as I have said, the courts have already shown, certainly in relation to decisions on control orders, an ability to mount a very rigorous review indeed. These decisions are, however, more administrative in their nature and do not require the same in-depth consideration as a decision to impose an asset freeze. Nevertheless, we anticipate that judicial review of these decisions would include proper scrutiny of the material on which the Treasury decision is made and that the court would have the power to consider further information if it believed that to be necessary. Ultimately, it will be a matter for the courts to decide on the appropriate level of scrutiny to be applied, depending on the decision in question.

My noble friend Lady Hamwee asked whether the court would be able to substitute its own terms if, for example, that was with regard to a licence. The court has discretion to give whatever relief is appropriate; we certainly believe that that could include amending the terms of a licence.

The most reverend Primate the Archbishop of York raised the issue of people being subject to freezes for 30 days without access to funds and legal expenses. The point about that is that we provide licences. A general licence is given at the point where people are designated to ensure that they indeed have access to funds for living and legal expenses. This will be the subject of a set of amendments later in our proceedings. People do not need to go to a court to be able to access that legal aid funding.

Perhaps I might specifically refer to Amendments 5 and 6 and the consequential amendments, which would limit the period for which the Treasury could make asset-freezing designations to 30 days, so that any freeze going beyond 30 days would require confirmation by the High Court. This in many ways reflects some of our debate on the first set of amendments—not only the points raised by the noble and learned Lord, Lord Lloyd of Berwick, but the general issue of the balance between the decisions of the Executive and those of the judiciary. Perhaps not surprisingly, I endorse what was said by my noble friend Lord Carlile of Berriew, who indicated the importance of separating executive decisions from a robust review of those decisions by the judiciary. Indeed, that point was acknowledged by the noble and learned Lord, Lord Davidson of Glen Clova. He indicated that that was the former Government’s view, which they maintain. It is, quite clearly, a matter of important debate and, as my noble friend Lord Lester of Herne Hill indicated, these matters are complex. Ultimately, however, Ministers have the responsibility for national security and our accountability as Ministers is not only to Parliament, which is an important accountability, but to the courts. We believe that we have introduced a robust form of review, if those affected by designation wish to pursue it.

Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences. The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted. I was advised that 21 individuals in the UK have been convicted for terrorism offences. Six people within the UK have not been prosecuted. I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals. It would not be possible to prosecute them. Nevertheless, consistent with our obligations under the United Nations Security Council resolution and the importance attached to disrupting terrorism by freezing assets, it is important that we have been able to designate in those cases in which it would not be possible to bring prosecutions.

In that small number of important cases in which individuals have not been prosecuted and are within the UK, we believe that the opportunities that are open now through a full form of appeal are appropriate. It would not be appropriate to have a mandatory form of court decision-making, but there is a robust avenue for those who have been designated and wish to challenge that in the courts. In that way, we have strengthened judicial safeguards for asset freezing. For those reasons, I hope that the noble Baroness will be prepared to withdraw her amendment and that the Committee will be minded in due course to support the amendments that have been tabled by the Government.

[Lord Pannick]

Do the Government accept, on special advocates, that the AF case would apply in this context, as it does in the context of control orders, and that it would be necessary for them to disclose at least the gist of the allegations against the individual concerned?

--- Later in debate ---

[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.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Pannick Excerpts

Wednesday 6th October 2010 Lords Chamber

[Lord Wallace of Tankerness]

I acknowledge that point. My understanding is that if a person other than the designated person had suffered loss as a result of a decision of the Treasury, it would be possible for them to raise an action. I will get further information to confirm that to my noble friend, but the person whose designation is being challenged—the designated person—would have a forum and an opportunity in that context to seek damages. It may also, in some circumstances, be open to a person to claim damages under the Human Rights Act if the particular circumstances so arose, and therefore we not believe that any further provision for compensation is necessary.

The purpose of Amendment 52 would appear to be to increase the protection from prosecution given to a person complying with the provisions of Part 1 of the Bill. It would achieve that by specifying that no person complying with Part 1 was liable to court action as a result of such compliance. Again, the intention behind this is understandable, and we recognise that the rationale is to provide that additional protection from claims made against persons—it could be, for example, bank employees who have quite dutifully acted in compliance with the requirement under Part 1 of the Bill. However, we do not believe that the proposed clause is necessary. It is already a defence to claim that a person was acting in compliance with a lawful requirement, and the Government believe that this principle is sufficiently well established that the drafting of the Bill does not need to be amended. In fact, the basic principle is already there, and we do not need to add to it; indeed, it is often the case that when you add to something that is already well established in principle, you sometimes can give rise to questions about the extent of the principle. We believe that that principle is there, and it is well established. Accordingly, the amendment is not necessary. In the circumstances, I hope that the noble and learned Lord, Lord Davidson, will be prepared to withdraw his amendment.

[Lord Pannick]

I would like clarification in relation to compensation. As I understood the Minister, he suggests that Amendment 57, giving the court the power to make such order as is considered appropriate, would be broad enough to empower the court to award compensation to the affected individual who had been designated. Is the Minister saying that this provision is broad enough and is intended to overturn the general principle of English administrative law—and, I presume, Scottish administrative law—that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action? One normally needs to show some tort, a misfeasance—that either the official knew that what he was doing had no lawful basis or he was at least reckless. If it is the intention to give the court a power to grant compensation simply for the invalid nature of the designation, would it not be better to say so expressly in the Bill?

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Morris of Bolton)]

If Amendment 70 is agreed to, I cannot call Amendments 71 to 73 because of pre-emption.

[Lord Pannick]

Noble Lords are very familiar with the problems—the unfairness and the practical difficulties—that are caused by special advocate procedures. Clause 23(4) is acceptable only if the person concerned has a right to see at least the essence of the material that is relied on in the case against him, as the Appellate Committee decided in the control order context in the AF case.

The Minister said earlier that fairness depends on its context. I ask him to state clearly on behalf of the Government whether they accept that in this context—the freezing of assets—fairness requires that the individual concerned be personally told the essence of the case against him. I cannot see how it could possibly be fair to freeze a person’s assets on a permanent basis, causing all the disruption and damage to their personal life that the Supreme Court explained in the recent case, without that person being told at least the essence of the case against them and having a fair opportunity to answer it. The Appellate Committee in AF made it very clear that the special advocate procedure is wholly inadequate to ensure fairness in that respect, so I hope that the Minister will confirm to the Committee that the Government accept that the AF principles apply in this context.

[Baroness Falkner of Margravine]

I speak to this amendment on the basis that I was a member of the Joint Committee on Human Rights in the previous Session. I recall that my noble friend the Minister said in his opening remarks some hours ago that he did not want to draw an analogy in the provisions of the Bill with control orders. However, I respectfully suggest that if he looked at the 16th report in 2010 of the Joint Committee on Human Rights, on counterterrorism policy and human rights, which concerned the annual renewal of control orders legislation, he would find that significant aspects of the problems that will arise from Clause 23(4)—not least those of the AF case, referred to by the noble Lord, Lord Pannick—are covered in the report of the committee, which was excoriating. It is a sadness that the previous Government took no account of it whatever.

I do not want to take up too much time at this point in the evening, but let me briefly summarise for my noble friend the three issues that the report raised about special advocates. Those issues were:

“(1) Lack of access to independent expertise and evidence … (2) Ability to test Government objections to disclosure of closed case”,

and, finally,

“Limits on ability to communicate with controlled person”,

after seeing the closed material. The noble Lord, Lord Pannick, has first-hand experience of this, but let me also just read one paragraph from page 21 of that report, which I think expresses quite succinctly what part of the problem is. The report says:

“The special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court. Courts inevitably ‘accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security’”.

As well as highlighting the deleterious effect of late disclosure, the report touches on international comparisons and finds that no other country uses special advocates in quite the way as we do by denying the defendant—in this case, the designated person—so many rights to which a defendant would normally be entitled under human rights law.

If the Minister is not prepared, at this hour of the night, to concede that there may be some really problematic issues in retaining subsection (4), perhaps he might consider returning to the issue on Report after further consideration.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, Amendment 70 from my noble friend Lady Hamwee raises some important points about the use of special advocates and disclosure, as has been reflected in the speeches in this—albeit short—debate.

Amendment 70 relates to the supplementary provisions in relation to anyone wishing to challenge an asset-freezing decision. Clause 23(4), which the amendment seeks to delete, applies the procedures to be followed in determining an application made to the court for a Treasury decision to be set aside. The provisions of subsection (4) require the maker of the rules of court to have regard both to the need for a proper review of the decision that is subject to challenge and to the need to ensure that disclosures are not made where to do so would be contrary to the public interest such as—to give the most obvious example—for reasons of national security.

As asset-freezing proceedings relate to issues of national security, some cases will inevitably involve the use of sensitive, or closed, material such as intelligence material that it would not be in the public interest to disclose to the individual concerned. However, I emphasise that the starting point must be that the individual is given as much information as possible, subject only to the legitimate public interest concern. However, the provisions in Clause 23 ensure that closed material can also be used in court proceedings through the special advocate system, which is the system that Amendment 70 seeks to restrict but which nevertheless should, we believe, be part of the system that is used.

The special advocate system and the disclosure procedure are designed to ensure procedural justice for individuals in admittedly difficult circumstances in which in the public interest material cannot be disclosed to them. The special advocate, who is a specially cleared lawyer, will take instructions from the individual and will then have access to the closed material. Without this subsection, the court might not be able to appoint a special advocate, whose role would be to argue for more information to be disclosed to the individual and also, in effect, to mount a challenge against the Treasury decision involving closed information.

As this debate reflects, as other exchanges have reflected and indeed as court cases reflect, the Government recognise that a range of concerns have been expressed about the special advocate system. I assure the Committee that the Government are committed to meeting our obligations under the European Convention on Human Rights with respect to a right to a fair trial and we believe that the special advocate system is part of the process. I can advise the Committee that there will be an opportunity to raise the concerns that this amendment is aimed at more widely during a consultation on a government Green Paper on the use of sensitive information in judicial proceedings. That Green Paper will aim to develop a framework for ensuring appropriate judicial and non-judicial scrutiny of intelligence and security activities in line with the Government’s commitment to individual rights, the rule of law and properly protecting national security. It is anticipated that that Green Paper will be published next year.

Ultimately, we must constantly strive to secure in a modern legal framework the best balance between the interests of justice and the interests of security. We referred earlier to the case in which the noble Lord, Lord Pannick, represented the successful appellants. I indicated to him that that case obviously related to control orders and that the Government do not necessarily accept a read-across. I think he will understand why we are not in a position to make that read-across. I pointed out to him in an earlier exchange that fact and context are important in these circumstances. However, I reiterate what I said earlier: our starting point is that, so far as is consistent with the legitimate interests of national security, we should advise persons subject to a designation order what the grounds of that order are.

I acknowledge that this is a difficult and sensitive matter. I have indicated that we want to look at this whole issue next year on the basis of a Green Paper but, for the purposes of the present Bill and this amendment, we believe that it would be a mistake and not necessarily in the interests of the person who is subject to designation for this subsection to be removed. Controversial though the special advocate’s role may be, we nevertheless believe that it will be necessary in dealing with appeals or indeed judicial reviews that may arise under these provisions.

[Lord Pannick]

Can we be clear about this? Although the Government have introduced a very welcome right of appeal for persons who are designated, the Minister is telling the Committee that there may be cases where an individual is told absolutely nothing about the reasons for his designation and he will be left to rely on the special advocate, to whom he cannot talk and who cannot take instructions from him. Is that the Government’s position?

[Lord Wallace of Tankerness]

As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.