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Mr. Gummer: I am not sure that I should be led down that path, Mr. Deputy Speaker, as it would be a chilly one and might lead me to receive complaints from you. I shall continue, rather, with the point that the system we are talking about today depends on a degree of omniscience on the part of Ministers that, having been a Minister myself for 16 years, I do not believe should ever be accorded to them.
Secondly, the system does not provide the transparency of a proper review that we would expect for ourselves. I say to the Ministers present this evening that they should look at this issue by putting a very simple question to themselves: would they like their sons or daughters to be subject to this order? Would they feel that their sons and daughters were able to have a proper consideration of their cases? It is no good thinking about people they do feel any connection with. This is the way for any Member to look at any legislation-how do we believe any particular legislation would treat someone whom we cared about?
That explains why I believe that aspects of this legislation are both intolerable and intolerant. The first is the use of reasonable suspicion as a test. It is a proper test of deciding whether Mr. Jones on the street can properly be brought into the police station for further consideration of some event that has taken place. It is a proper test for beginning a process, but it is not a proper test for ending a process. That is why it is unacceptable.
Secondly, this is not a proper test for a Minister to use, because what will the Minister do when a group of superior people come in and say, "Minister, better not say no to this, because whereas if you get it wrong and do something unhappy to an individual, it will not serve you too badly, if you get it wrong and let the individual free of these restrictions, you may find yourself in trouble"?
The Exchequer Secretary to the Treasury (Sarah McCarthy-Fry): I cannot sit here and listen to that. I assure the right hon. Gentleman that Treasury officials in no way make remarks like that to me when I make these designations, and I am sure that they have not done so to previous Exchequer Secretaries either.
Mr. Gummer: Let me just say to the hon. Lady that they will not put it as boldly as I do because they are all very neat and charming, but what they always say to Ministers is, "Better not"-and if she has not understood that, I can well understand a number of the decisions that she has made. She has obviously not listened, because they always say, "Better not"-every one of them; it is part of the whole "Yes Minister" programme of indoctrination. Let me tell her that if she thinks anything other than that, I am even more worried about the situation we find ourselves in.
Mr. Hogg: Very rapidly. My right hon. Friend and I were both Ministers for a long time and most of us had the reputation of being pretty robust, so let me say that my right hon. Friend is right.
Mr. Gummer:
I therefore have to tell the hon. Lady that "reasonable suspicion" is a dangerous thing to be put in the hands of any Minister. If I were her, I would
refuse it, because it puts her into an impossible position, which she should, in all honour, refuse. Even if she accepts this when there is no appeal against her, she might find that judicial review reveals that she has been unreasonable and that she should not have made that decision, as any fool can see. [Interruption.] It is all very well for the Exchequer Secretary to laugh, but we are talking about the basic rights and freedoms of Her Majesty's subjects, which is no laughing matter.
Some of us have sat in this House, as I have, for 35 years, and I have always thought that my first priority was the defence of the freedom of Her Majesty's subjects. This Government have done more to bypass Parliament and more to restrict the opportunities of MPs to stand up for the freedom of their constituents than any previous Government. Lord Liverpool would have been proud of them, which is about the most insulting thing any historian could say of the present Government. The fact that Lord Liverpool was a Conservative shows just how independent I am on this issue.
I end by saying that we rarely have an opportunity to argue about the basis on which we are here. The fact that there are so few of us in our places to debate this particular issue is itself something that speaks volumes. Although the Government have received no support whatever for the basis on which they have proceeded, we know that they will take no notice whatever of the words spoken on all sides of the House. That is the real criticism of this Government.
Mr. Gummer: No, I will not give way-certainly not to the right hon. Lady, who of all people has done more than almost anyone else to press forward this Government's opposition to Parliament. I merely point out to you, Mr. Deputy Speaker, that this is too serious a matter for the Government to refuse to listen to Parliament, but I have no doubt that they will still refuse to do so.
7.39 pm
Mr. David Gauke (South-West Hertfordshire) (Con):
It is a pleasure to wind up this Second Reading debate on a matter of great importance, which, as we have heard during this evening's debate, excites great interest and passion. It is vital for Parliament to address issues of protecting the liberty of the individual and national security. A number of contributors to the debate have highlighted the nature of the legislation and of the orders passed under the United Nations Act 1946. The Supreme Court described the legislation as "draconian", "drastic", "oppressive", "burdensome" and "paralysing", and a number of right hon. and hon. Members have highlighted its imposition-I refer particularly to the comments of my hon. Friend the Member for Poole (Mr. Syms), my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer). In addressing terrorism, however, it is important that we deal with the freezing of assets and prevent the financial system from being used to perpetrate terrorist acts. That is a huge issue for any Parliament to address-the key point about the Supreme Court ruling is that the matter is for Parliament
to address. My hon. Friend the Member for Woking (Mr. Malins) pointed out the important role of Parliament in that regard. We are therefore grateful to have the opportunity to debate the matter today.
The Opposition's view is that without the Bill we would take a substantial risk that assets of suspected terrorists that are currently frozen would be accessed, which might ultimately lead to terrorist activities. I note that the Liberal Democrats have withheld their position on whether they will support the Bill's Second Reading. In referring to Lord Hope, the hon. Member for Cambridge (David Howarth) made the point that all the orders made under the United Nations Act 1946 could have been dealt with under the Anti-terrorism, Crime and Security Act 2001. However, there is a risk that that might not work, and for those reasons we will support the Bill. I would be surprised if the Liberal Democrats opposed it.
In part at least, we support the Bill because of the situation we find ourselves in. We are where we are. There are two significant concerns about how we got into that position. First, by passing orders under the United Nations Act, the Government were taking a risk that at some point the existing legislation would be invalid, and that suspected terrorists would no longer have their assets frozen unless exceptional action, such as emergency legislation, was taken. The right hon. Member for Redditch (Jacqui Smith), who speaks with the experience of having been Home Secretary, said that we cannot pass a new Act every time we are brought to court-that would fill up the legislative timetable. However, this is an important matter, of fundamental liberties, and surely the Government should have addressed it more quickly.
However, it is a question not just of legality. The second concern is that Parliament has been bypassed. Parliament should have been involved in determining the relevant orders. That is the essence of the Supreme Court's decision. Consequently, the Government can be criticised for doing neither what was constitutionally necessary nor what was constitutionally right.
My hon. Friend the Member for Fareham (Mr. Hoban) set out in forensic detail the warnings that reliance on section 1 of the United Nations Act 1946 was an uncertain basis for the Government's asset-freezing regime. Before the regime was brought in, the Foreign Affairs Committee report of 1999 on Sierra Leone recommended that the United Nations Act should have been amended so that delegated legislation made under section 1 was at least subject to the affirmative procedure, which would have given Parliament some opportunity to debate the matters. In 2003, the Newton committee report recommended that
"freezing orders for specific use against terrorism should be addressed again in primary legislation, based on the well-tested provisions of the Terrorism (United Nations Measures) Order 2001".
That view was endorsed by the Joint Committee on Human Rights later that year. There have also been international comparisons: the likes of Australia and New Zealand initially made orders under their equivalents of the United Nations Act but then brought in primary legislation that dealt specifically with such matters. In this case, the High Court found against the Government in April 2008-yes, the Court of Appeal overturned it, but the judgment was partially dissenting.
The Government cannot claim a lack of parliamentary time or opportunity to address the matters properly in primary legislation. After all, the Anti-terrorism, Crime and Security Act 2001 and the Counter-Terrorism Act 2008 were opportunities to address the matter properly and prevent the situation in which we find ourselves today. There has been a constituent failure to permit Parliament to consider the issues through primary legislation. A number of right hon. and hon. Members, most passionately my right hon. Friend the Member for Suffolk, Coastal, made the case that the Government have ignored Parliament; they have not taken it seriously. As my hon. Friend the Member for Fareham pointed out, as recently as Thursday the Government broke their undertaking on parliamentary scrutiny in respect of opt-ins under the European Union (Amendment) Act 2008. It is worth quoting what the hon. Member for Birmingham, Edgbaston (Ms Stuart), a Government Back Bencher, said on the matter last week, 4 February, at column 459:
"we again find that Parliament is just some irritating thing that has somehow to be dealt with."-[ Official Report, 4 February 2010; Vol. 505, c. 459.]
That describes the Government's approach to asset freezing all along, until the Supreme Court stepped in and said that it was necessary for Parliament to address the matter.
The Government have prevented Parliament from reviewing the legislation and making its voice heard for some years. Even in the Bill, they continue that practice through the sunset clause, which kicks the issue, if not into the long grass, at least beyond the next general election. It is perhaps not surprising, given comments on both sides of the House, not least from Government Back Benchers the hon. Members for Walthamstow (Mr. Gerrard) and for Hendon (Mr. Dismore) in opposition to some of the details of the Bill, that the Government do not want to bring the matter back to the House this side of a general election. It was, of course, the Government's intention to do so less than a week ago-it was striking that the Chief Secretary said that it would clearly be better to allow time. Indeed, the very reason that the Treasury applied to the Supreme Court for a stay was to allow the Government the opportunity to get the legislation through in the next two months. We could still do that-we could pass the Bill today and come back during the next few weeks to scrutinise and debate a full Bill, as was the Government's intention until very recently.
The fact that the Government have been reduced to this situation demonstrates that if one ignores Parliament too long, and fails to show Parliament respect, eventually our constitution balances itself and Parliament's voice is heard. It is a pity that the Government took such risks that emergency legislation had to be rushed through the House.
7.49 pm
The Exchequer Secretary to the Treasury (Sarah McCarthy-Fry): This has been an interesting debate on an issue which-as the debate has revealed-is difficult and significant. I welcome the Conservatives' support for the Bill, and hope that the Liberal Democrats will support it as well, given the severe consequences to national security-described so eloquently by my right hon. Friend the Member for Redditch (Jacqui Smith)-if it is not passed.
The threat to the United Kingdom today from international terrorism is real and significant. We know that terrorists need finance to carry out attacks. As we have seen, the cost need not be great, but terrorists also need finance to maintain their infrastructure, for training, equipment and recruitment, and to promote their ideology. Their capabilities are severely constrained if they have no access to funds. Over the years, the asset-freezing regime has proved to be a valuable tool for disrupting and preventing terrorist financing.
Our aim is to prevent a gap in the asset-freezing regime, and to ensure that frozen funds cannot be unfrozen and diverted and used tor terrorist purposes and that suspected terrorists do not gain free access to the United Kingdom's system. We consider it necessary to the UK's national security to act swiftly to maintain the asset-freezing regime under Orders in Council on a temporary basis while we table further legislation introducing a terrorist asset-freezing regime to primary legislation, allowing time for Parliament to scrutinise our proposals fully.
I welcomed the many and varied points raised by Members, and, in the time available, I shall do my utmost to address them. Let me deal with the major points first. Many Members asked why primary legislation had not frozen the assets at the outset. Orders in Council made under the United Nations Act have proved an accepted way for successive Governments, regardless of party, to give effect to UN Security Council resolutions. The intention of the provision is to ensure that the UK can swiftly implement its UN obligations in respect of matters affecting international peace and security.
By making Orders in Council under the UN Act, we were able to establish our terrorist asset-freezing regime in law within 12 days of UN Security Council Resolution 1373. I am sure Members will understand why rapid action was necessary to deal with terrorist finance in the weeks after 9/11. We continued to believe that the use of Orders in Council under the UN Act was the right approach, and was consistent with the way in which previous Governments had given effect to UN Security Council resolutions.
Some Members-including the hon. Members for Fareham (Mr. Hoban) and for Poole (Mr. Syms)-have asked why we did not use primary legislation once we knew, after the High Court ruling in 2008, that the orders were potentially vulnerable. We concluded that it was right to see the legal process through to the end, in order to be clear about the proper use of the UN Act and the way in which it applied to the orders in question.
David Howarth: Will the Minister give way?
Sarah McCarthy-Fry: I will not. I am sorry.
As Members will know, although the Supreme Court ruled that the Terrorism (United Nations Measures) Order 2006 and article 3(1)(b) of the Al-Qaida and Taliban (United Nations Measures) Order 2006 had gone beyond the scope of the UN Act, the Court of Appeal upheld the Government's position.
Other Members referred to the sunset clause. We think that waiting until the end of the year allows enough time for pre-legislative scrutiny and legislative scrutiny. Some Members agreed, while others did not. I look forward to the debate on the amendments tabled in Committee.
The UK's terrorist asset-freezing regime has been in place since 2001. These are not new powers, and the regime has been tested operationally and been improved over the years. In 2007, the UK's asset-freezing regime was judged by the financial action task force to be fully compliant with international standards. Ours was the first country to be awarded that top mark. Since then, we have improved the regime further through the Terrorism (United Nations Measures) Order 2009. It includes improved safeguards, such as the requirement that designations can only be necessary for public protection, and that asset freezes are time-limited to a renewable period of 12 months. Let me re-emphasise that the Supreme Court has not found the regime to be contrary to human rights, or to contain inadequate safeguards.
David Howarth: Will the Minister give way?
Sarah McCarthy-Fry: I will in a moment.
The court struck the orders down purely on the grounds that they went beyond the scope of the UN Act. The hon. Member for Cambridge (David Howarth), the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), my hon. Friend the Member for Walthamstow (Mr. Gerrard) and others quoted what was said by the Supreme Court judges. Lord Brown said:
"I am unimpressed by the alternative grounds on which the Order is challenged, those of certainty and proportionality. Primary legislation introducing this same asset-freezing regime could not have been declared incompatible on those grounds."
Lord Mance, with whom Lord Phillips agreed, said:
"I am at present also unpersuaded that the content of the Orders could be challenged on grounds of lack of proportionality",
although he did say that he need express no final view.
David Howarth: The crucial point that the Minister seems to have missed, which was mentioned by both the hon. Member for Hendon (Mr. Dismore) and me, is that the Supreme Court thought that because of the al-Jedda case it could not consider the human rights position. The point is not that it was finding in favour of the Government, but that it could not consider the issue at all.
Sarah McCarthy-Fry: I do not think that that is the argument advanced by one of the judges.
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