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Members from all parts of the House, but Opposition Members in particular, have criticised the speed with which the legislation has been brought forward, and I am sure that the Government would have liked more
time for parliamentary consideration and external consultation. That, presumably, is why they asked the Supreme Court to suspend its decision: to maintain the asset-freezing orders in place while Parliament had the chance to consider the issue. That request was of course dismissed. It would be useful if my hon. Friend the Exchequer Secretary could confirm that its dismissal has potentially freed up considerable assets for terrorist use, enabling the people whom the orders covered to make free use of those assets and any financial institutions that they like. It is also worth pointing out that had not the Government moved quickly with this proposed emergency legislation, the financial institutions that have implemented the freeze could have been placed in a position whereby legal action could be taken against them.
If the Supreme Court decision is really about the will of Parliament, it is a bit hard to understand why Parliament could not be given sufficient time to consider the implications of the proposed legislation. Rightly, the Bill is temporary: its provisions will fall by the end of 2010. We should have more time to consider the nature of the provisions and the safeguards in place. This asset-freezing regime is onerous on individuals and their families. I am pleased that in introducing a new order last August to replace the 2006 and 2001 orders, the Government ensured that any restrictions are more carefully tailored to areas of genuine concern. They have made the safeguards more explicit and freed up the situation of spouses and families. Furthermore, in the last quarter, as reported in last November's report to the House, 35 licences had been issued. These licences ensure that living requirements and finance for legal assistance can be met while other assets are frozen. I hope that my hon. Friend the Minister will take the opportunity, as far as she is able, to outline those restrictions and safeguards and tell the House what kinds of licences have been issued to ensure exemptions for necessary expenditure for living costs.
It is clear that dealing with this will take more time than we have today. That is why I welcome the publication of the pre-legislative scrutiny of the draft Terrorism Asset-freezing Bill, which was published at the same time as this Bill, and which gives Committees of the House, hon. Members and external stakeholders a proper opportunity to look in detail at the provisions, safeguards, restrictions and processes that are being put in place. However, I hope that consideration of that Bill will be brought forward as quickly as possible so that the House has the opportunity for the important full scrutiny. The scale of death and destruction willed by terrorists costs money. The building of networks comes at a price. In doing the job of countering this threat, it is necessary to recognise that reality and use a range of tools to tackle it. Asset freezing is an important tool in doing that, and we must ensure that those whom we task to keep us safe have it at their disposal. The Bill will ensure that protection in the short term; for that reason, I hope that we pass it today.
6.22 pm
Dr. Vincent Cable (Twickenham) (LD): We have heard three speeches in support of the Bill. I have to say that Liberal Democrat Members are not yet persuaded, but we will listen to the remainder of the arguments.
Under Security Council resolution 1373, the UK Government are obliged to take action to prevent and suppress the financing of terrorist acts and to freeze without delay the funds or other financial assets of persons who commit or attempt to commit terrorist acts. If there were purely a technical problem in giving effect to that resolution, we would all be bending over backwards to help the Government to achieve their aim; certainly, we do not want floods of money going into the acquiring of terrorist weaponry. However, that is not the issue; the issue is the position of the Supreme Court. I do not usually read Supreme Court rulings-I spend my time reading much more exciting things such as tables of economic statistics-but I was amazed by the trenchancy of the language, with references to "draconian", "drastic", "oppressive" and "paralysing" activities within the framework of these orders. The Bill has been described as very bad legislation. More importantly, in some ways, the legislation-not in our view but in the view of the Supreme Court justices-is unnecessary. That is why we remain highly sceptical about its validity.
More positively, I appreciate the fact that the Government have consulted quite extensively over the past few days. I have been consulted more extensively than at any time in my past five years in this job-even more than I was at the height of the banking crisis. In my more generous moments, I think that a spirit of consensus has broken out within Government; in my more cynical moments, I think that the Government are in a hole and desperately trying to get everybody on board. However, we will approach this constructively. My hon. Friend the Member for Cambridge (David Howarth) and I have tabled a series of amendments that are intended to be constructive and to deal with what we think are the defects in the Bill, particularly the lack of clarity in the safeguards governing reasonable suspicion and the appeals process.
I pay tribute to the non-governmental organisations, Justice and Liberty, which have produced at very short notice-it is only 24 hours since the legislation was published in draft form-extremely impressive and detailed notes cross-referencing the legal points. That is particularly helpful to people like me who are not lawyers and tend to approach these complex legal and constitutional issues with all the enthusiasm of an ordinary member of the public faced with a mathematical economic treatise.
In terms of the nature of the problem to be addressed, let me deal first with the question whether this legislation is necessary. We have had an extended discussion, prompted by my hon. Friends the Members for Somerton and Frome (Mr. Heath) and for Cambridge, about whether it would be possible to use the alternative powers that are available, with a lengthy exchange on the Anti-terrorism, Crime and Security Act 2001. I was surprised to see Ministers swatting aside the judgments of Supreme Court justices as if they had perpetrated some elementary undergraduate error in failing to understand what the existing Acts were all about. It is possible that Lord Hope and his colleagues do not have a basic understanding of the law, but that strikes me as being rather unlikely. However, let us assume for the moment that they are wrong-that they completely misinterpreted what the 2001 Act was all about and failed to realise that there were limitations on its use. In that context, it is worth quoting what Justice said in its summary of the alternative legal powers:
"there are already a great many provisions in UK law that give effect to the government's obligations under resolution 1373. These include sections 14-19 of the Terrorism Act 2000 (criminalising the use of funds or other property for purposes connected with terrorism); Parts 1 and 2 of the Anti-Terrorism, Crime and Security Act 2001"
"the Prevention of Terrorism Act 2005 (control orders). Even the provisions of the Proceedings of Crime Act 1998 may be used to seize funds that result from terrorist activity."
I hope that Ministers will give us a clear explanation as to why these powers are not usable or not appropriate, because the Supreme Court evidently thinks that they are.
Mr. Gummer: Does the hon. Gentleman agree that the fact that there is a significant amount of doubt about this brings us back to the point that if the Government had introduced in the House the provisions that they put through outside the House, then precisely these issues could have been raised by Members of Parliament, which is the way that Parliament ought to be used?
Dr. Cable: I am sure that that is right. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) referred to the fact that the Supreme Court justices had described this whole process as an offence against democracy, and that is a striking way of summarising what the right hon. Gentleman says about Parliament being the democratic forum in which these debates are properly conducted.
Let me turn to the reasons why the Supreme Court justices considered these powers, which we are legitimising for a further period-the best part of a year-as draconian, drastic, oppressive and paralysing, and go over some of the points that were made. The Government quoted Lord Brown in support a few moments ago because he ruled in their favour on one order. None the less, Lord Brown said in his comments:
"The draconian nature of the regime imposed under these asset-freezing Orders can hardly be overstated. Construe and apply them how one will-and to my mind they should have been construed and applied altogether more benevolently than they appear to have been-they are scarcely less restrictive of the day-to-day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought to be even more paralysing."
As for the orders' impact on family life, the former Home Secretary, the right hon. Member for Redditch (Jacqui Smith), intervened a few moments ago to say that the Government had made an announcement to the effect that the family provisions would be relaxed. However, as I understand it, they are being enforced currently, and were described by a Supreme Court justice in the following terms:
"The overall result is very burdensome on all the members of the designated person's family. The impact on normal family life is remorseless and it can be devastating".
That language is not moderate, especially coming from people in a profession normally associated with understatement.
The deputy president, Lord Hope, concluded in discussing the orders:
"The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them."
That is strong stuff. We should take note of it, not merely of the purely legal points being disputed.
We return to two central principles. The first is the point about reasonable suspicion. The notes prepared for us by Justice and Liberty state that other countries with similar approaches to the law have also grappled with this problem: what is the right balance between absolute proof and reasonable suspicion? Even the Australians, who could hardly be accused of being soft on terrorism and who have had to cope with bombings in Bali and elsewhere, apply a tougher standard of proof. A Minister must be persuaded that an individual is involved in terrorism. That is a somewhat stricter test than reasonable suspicion, which is why my colleague and hon. Friend the Member for Cambridge and I have tabled amendments to strengthen the safeguards on that point.
On appeals, it is worth recalling again what Lord Rodger, another justice, said:
"the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted, without their having any realistic prospect of putting matters right."
That is why appeals should be heard on issues of substance and not simply of procedure.
Dr. Cable: I know that the right hon. and learned Member for Sleaford and North Hykeham and the right hon. Member for Suffolk, Coastal (Mr. Gummer) have been trying strenuously to communicate in this debate, so I will give way.
Mr. Hogg: I am grateful to the hon. Gentleman. Will he also keep in mind page 19 of the 2004 report by the Joint Committee on Human Rights? It makes the point that judicial review, which is the only protection afforded by the draft Bill and indeed the order, affords
"only a very limited protection against legislative orders of this kind, except where they contravene European Community law."
We must recognise that judicial review per se is not an examination of the merits of an order.
Dr. Cable: Exactly. That is the point that I made, and I am grateful for the clarification.
It is to the Government's credit that they have acknowledged the problems arising from the case and are now discussing a sunset clause. There is a debate to be had about what a realistic period is. The Government propose 10 months, and I think that the Conservatives have proposed until the end of March. It is difficult to see how a Select Committee could do a proper review or both Houses could take a proper approach to the review of legislation by the end of March.
Equally, though, one should not overestimate how much time such things take. Reviews can run concurrently rather than consecutively, and the hon. Member for Hendon (Mr. Dismore) helpfully suggested that his Committee works fast. We are not at all persuaded that 31 July is too far away for a proper scrutiny of legislation with proper debate and all the necessary stages in Parliament.
In conclusion, problems arise when legislation is introduced very rapidly on a 24-hour basis. Long before I got involved in politics-in the year I got married, which was just over 40 years ago-my wife and I discovered while we were making wedding preparations that her family and most of our friends who were British subjects were being declared stateless by the British Parliament, because they happened to be east African Asians. On the basis of a panic and "facts" that subsequently turned out to be wholly incorrect, they were, in effect, systematically stripped of their British citizenship.
That was not the first case of fast-track legislation, and the Bill before us will not be the last, but we must learn from experience that legislation taken in great haste and panic is often very bad legislation. Liberty's evidence on emergency legislation to the Constitutional Committee sums up not just the Commonwealth Immigrants Act 1968 but the Bill perfectly:
"When legislation is introduced into Parliament and passed within a few weeks or even days it is impossible for Parliament fully to analyse and debate the proposals put before it. It is also extremely difficult for NGOs and civil society to have the time to examine the proposals and brief parliamentarians on the likely impact...Legislation drafted in haste will inevitably contain errors, be they minor or more substantial. Even more worryingly, the policy behind such legislation will at best be ill-thought out and at worst may be motivated by political objectives to be 'seen' to be responding to an event or judgment."
That is exactly where we are today.
6.36 pm
Mr. Neil Gerrard (Walthamstow) (Lab): It is good that for the first time, we are debating what is in the orders, at least to some extent. It has been mentioned that we should have had an opportunity to do so before now. I recall from the passage of the Counter-Terrorism Act 2008 that that Bill included a section dealing with asset-freezing orders and some aspects of how they could be challenged. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) and I tabled some amendments that would have permitted us to debate those clauses, but as so often happens on Report, as a result of the timetabling motion, our amendments were never reached, so no debate on the orders ever took place.
What we are being asked to do today is to overturn the Supreme Court's decision. It is important to recognise that that does not simply involve dealing with a technical error. The Supreme Court did not overturn the orders on a technical issue; it quashed them in strong language, as was pointed out. In this emergency legislation, we are effectively bringing into law orders that were quashed by the Supreme Court in strong language.
It is interesting to read the retrospective bits in the Bill. One will protect the banks during the period from the Supreme Court's decision to Royal Assent. What would the position be of somebody who gave money during that period to someone who was subject to a freezing order? Would they have any protection?
The orders put into effect UN Security Council resolution 1373, which concerns preventing and suppressing the financing of terrorist acts and criminalising
"the wilful provision or collection...of funds...with the intention that the funds should be used...to carry out terrorist acts".
We used the United Nations Act 1946 to bring the orders into force. They allowed the Treasury to designate individuals against whom measures should be taken, and the Bill will keep them in force. It then becomes a criminal offence for any person to make available any funds-there is no de minimis level-to the designated person. Licences are granted to allow the designated person to receive payments for their daily living expenses, but the operation of those licences has been such that those people and their families have had to produce detailed accounts for the Treasury of every penny that they have spent.
I hope that, when we eventually debate the draft Bill after it has been published, we will look into the need for a requirement to consider whether there is evidence that could lead to a prosecution before using the designation mechanism. As it stands, there is no necessity to establish a connection between the designation and any suspicion of involvement in terrorist activity.
The description of the orders as "draconian" by the Supreme Court has already been mentioned, as has their effect on the individuals concerned. Sometimes, their effects have been quite astonishing. For instance, in 2008, some people who were the subject of these orders wrote to the Treasury to ask whether it was permissible under the orders to buy new boots, trainers and shoes. The Treasury responded that this raised complex issues about what constituted a basic expense as opposed to an extraordinary expense, and that these were matters for which ministerial approval would be required. That was the extent to which the orders were impinging on the lives of the individuals who were subject to them.
Mr. Syms: Under the legislation, no one is allowed to give economic assistance to someone placed under such an order. That leaves the individual or family totally dependent on the regime that the Treasury has set up. Anyone who gives such assistance is at risk of becoming the subject of an order themselves.
Mr. Gerrard: Absolutely; it is a criminal offence to give such assistance.
There were queries about whether paying for an Oyster card or allowing someone to borrow a car would constitute giving them economic assistance. There was constant correspondence between the solicitors representing those individuals and the Treasury to try to determine exactly where the boundaries of the orders lay. Any new legislation must ensure that there is absolute clarity on what people are permitted to do while under designation, and on what constitutes a criminal offence.
The important issue of the basis on which people are designated-the ground of reasonable suspicion-has been raised a number of times. Lord Brown said in another case in which he was discussing this standard of proof:
"To suspect something to be so is by no means to believe it to be so; it is to believe only that it may be so".
We are talking about a very low standard of proof. In quashing the order, the Supreme Court judges' statements made that clear. Some of the arguments in this debate have suggested that the Supreme Court's reasons related to the use of the United Nations Act 1946. I suggest that there is far more to it than that.
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