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Sarah McCarthy-Fry: I beg to move Government amendment 8, page 1, line 5, at end insert-

'(aa) the Terrorism (United Nations Measures) (Channel Islands) Order 2001 (S.I. 2001/3363), the Terrorism (United Nations Measures) (Isle of Man) Order 2001 (S.I. 2001/3364) and the Terrorism (United Nations Measures) (Overseas Territories) Order 2001 (S.I. 2001/3366);'


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The First Deputy Chairman: With this we may take Government amendments 9 to 11.

8.30 pm

Sarah McCarthy-Fry: It is important that we maintain our terrorist asset-freezing regime not just in the UK, but for the Crown dependencies and overseas territories. Although the Orders in Council that apply to the Crown dependencies and overseas territories were not directly before the Supreme Court, they were also made under section 1 of the United Nations Act 1946 and are therefore vulnerable to being quashed. Amendment 8 therefore adds the Terrorism (United Nations Measures) (Channel Islands) Order 2001, the Terrorism (United Nations Measures) (Isle of Man) Order 2001 and the Terrorism (United Nations Measures) (Overseas Territories) Order 2001 to the list of orders that are validated by the Bill. If we do not make that change, we will leave the Crown dependencies and the overseas territories without a robust terrorist asset-freezing regime, and we would not fully meet our obligation under UN resolution 1373.

Amendments 9 and 10 validate decisions made by the authorities of the Isle of Man, the Channel Islands and the overseas territories by ensuring that it is not only decisions of the Treasury that are validated. The amendments are consequential to amendment 8. If we want the Isle of Man, the Channel Islands and the overseas territories to be covered, the amendments are also needed. Amendment 9 applies to decisions to issue a direction-that is to make a designation-and amendment 10 applies to decisions to grant a licence.

Amendment 11 is also a consequential amendment, which is necessary to implement the previous amendments. It extends the territorial scope of the Bill to the Crown dependencies and the overseas territories for their respective orders only.

Amendment agreed to.

David Howarth: I beg to move amendment 4, page 1, leave out lines 9 to 11 and insert-

The First Deputy Chairman: With this we may take the following: amendment 5, page 1, line 11, at end insert-

', but subject to the amendments made by section [Amendments to the 2009 Order]'.

Amendment 6, page 1, line 11, at end insert -

'( ) In section 63(1) of the Counter-Terrorism Act 2008, add at the end-

"(d) The Terrorist Asset-Freezing (Temporary Provisions) Act 2010.".

Amendment 7, page 1, leave out lines 13 to 19 and insert-

'(a) directions purported to be made by the Treasury under the purported Orders mentioned in (2) shall have effect as if they were interim orders;

(b) licences purported to be granted by the Treasury under purported directions shall have effect as if they had been granted under this Act.'.

New clause 1- Amendments to 2009 Order -

(1) The Terrorism (United Nations Measures) Order 2009 is amended as follows.

(2) In article 4(1) for "The Treasury may give a direction that a person identified in the direction is" substitute "The High Court, on application by the Treasury, may order that a person be".


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(3) In article 4(1 )(b) for "the Treasury consider that the direction" substitute "the order".

(4) In article 4(2) delete "that the Treasury have reasonable grounds for suspecting".

(5) In article 4(3) for "Treasury" substitute "Court".

(6) After article 4(3) add-

"(4) The Court may, on application by the Treasury, make an interim order under which a person is to be treated as satisfying the conditions in paragraph (1) if there is reasonable suspicion that the conditions in paragraph (l)(a) and (l)(b) are both satisfied.

(5) The Court must discharge an interim order if-

(a) there are no longer grounds for reasonable suspicion that the conditions in paragraph (l)(a) and (l)(b) are both satisfied,

(b) any subsequent proceedings undermine the factual basis for the finding that there is reasonable suspicion for the purposes of paragraph (4),

(c) a Court makes an order under paragraph (1) relating to the same person arising out of the same allegations, or

(d) a Court refuses to make an order under paragraph (1) relating to the same person arising out of the same allegations.

(6) Nothing in paragraph (5) prevents an application by the Treasury for a new order or interim order on the basis of different facts.".

(7) For article 5 substitute-

"5 (1) An order under article 4(1) must be revoked by the Court if either of the conditions identified in that article no longer continue to be met.

(2) An order under article 4( 1) may last no longer than 12 months, but may be renewed on application by the Treasury.

(3) An interim order under article 4(4) lapses after one month, and may not be renewed except where there are pending proceedings under article 4(1) or other proceedings relevant to the issues identified in articles 4(5Xa) or (b), in which case the interim order may be renewed on application by the Treasury until the end of those proceedings and any consequent proceedings under article 4(1) or article 4(5)(a) or (b).".

(8) For article 6(1) substitute-

"(1) Where the Treasury makes an application to the Court under articles 4 or 5, the Treasury must-".

(9) In articles 6(l)(a), 6(l)(b), 6(2)(a), 6(2)(b), 6(3) and 6(4) for "direction" wherever it appears substitute "application".

(10) For article 7 substitute-

"7 (1) Whenever any of the following occurs, the Treasury must act in accordance with paragraph (2)-

(a) an order or an interim order expires,

(b) the Court varies, revokes or renews an order or an interim order, or

(c) the Treasury makes an application to the Court for any renewal, revocation, or variation of an order or an interim order.

(2) (a) The Treasury must give written notice to the person indentified in the order or interim order,

(b) The Treasury must take such steps as they consider appropriate to bring any event mentioned in paragraph (1) to the attention of persons informed of the order.".

(11) In articles 8 and 9, for "a direction" wherever it appears substitute "an application for an order or an interim order".

(12) In articles 8 and 9, for "the direction" wherever it appears substitute "the application for an order or an interim order.".

(13) In article 8( 1) and article 9, for "4( 1)" substitute "4".

(14) In article 8( 1) and article 9, for "5( 1)" substitute "5".


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(15) In article 9, for "that direction" substitute "that application for an order or an interim order".

(16) After article 17(7) insert-

"(8) (a) if the Treasury refuses an application for a licence under this article or refuses to vary the terms of such a licence, any person affected, including the restricted person and the applicant for a licence, may appeal to the High Court,

(b) the High Court on an appeal under sub-paragraph (a) shall consider the application ab initio and may make any order it considers appropriate.".

(17) In article 23, for "7(a)" substitute "7(2)(a)'".

Amendment 12, Title, line 3, after 'activity;' insert-

'to amend the regime established by those Orders;'

David Howarth: All the amendments and the new clause stand in my name and that of my hon. Friend the Member for Twickenham (Dr. Cable). They bring together two separate issues-one that relates to amendment 4 and one that relates to amendment 5 and the new clause. The other amendments are simply consequential. Having heard the debate in the House all day, I feel that the issue that concerns amendment 5 and the new clause is the one on which Members wants to vote, so I shall press that to a Division.

Amendment 4 would change the terms that the Government use to turn the previous UN orders from invalid legislation into valid legislation. The way in which the Bill works is to deem the orders to be valid, and always to have been valid, under the United Nations Act 1946. The amendment would excise any mention of the Act from the Bill and, instead of deeming the orders always to have been valid, would simply declare them to be valid from now on. The amendment would therefore remove an element of retrospectivity in the technique that has been adopted and, more importantly, would remove from the Bill any reference to the Act as a cover for what the Government are trying to do. The reason for that has to do with the al-Jedda case.

Mr. Hoban: Before the hon. Gentleman talks about that case, will he clarify something? Would his amendment effectively nullify any action taken under the orders prior to the passing of the Bill?

David Howarth: Not quite, because of what clause 2 does. To achieve that effect, we would have to vote against clause 2. I am not so annoyed about clause 2 as I am about clause 1, because clause 2 is there to protect the banks, rather than the Government. I know that the banks are unpopular, but it seems reasonable that having relied on what the Government did, the banks should be protected from any untoward consequences; the Government are in a different position.

The judgment in the al-Jedda case states that in circumstances where the Government are legislating to implement a United Nations Security Council resolution, the Human Rights Act and the European convention on human rights do not apply. That is because article 130 of the UN charter says that the UN charter and Security Council resolutions under the charter take precedence over every other treaty. In the al-Jedda case, the House of Lords interpreted that provision as including in the category of all other treaties the European convention. Because of the relationship, as found in other cases,
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between the European convention and the Human Rights Act, that also means that the Human Rights Act does not apply.

All through the debate, that has been an important point of interpretation of the Supreme Court, because the Supreme Court did not say that the orders were compliant with human rights standards. It said instead that because of the al-Jedda case, it was unable to consider whether human rights standards applied or not. Unless, of course, the al-Jeddah case is reversed on appeal to the European Court of Human Rights in Strasbourg, amendment 4 would leave it open to those affected by this legislation to go to court in this country and challenge it on the basis of human rights standards and to move to obtain a declaration of incompatibility. That is a possibility that we should leave open. We should not slam the door in the face of the courts as the Bill does.

The Chief Secretary has a personal interest in this, because he has certified on the front of the Bill that it complies with the European convention on human rights. At present, that might be a slightly misleading statement, because that might be true only because the convention does not apply at all. I hope that he would wish that the position was more real than that rather artificial one, and that he would argue-I might oppose him on this-that the terms of the Bill are, in reality, compliant. The argument for amendment 4 sounds technical, but it raises a very important issue of principle about the application of the Human Rights Act.

Amendment 5 is a paver for the new clause. The new clause is an attempt to amend the 2009 order in a way that has been called for from all sides of the Chamber in the debate that we have had so far. Its effect would be to alter the process by which a person becomes subject to the asset-freezing regime, to change the length of time that a person can be subject to the regime on the basis of reasonable suspicion alone, and to introduce appeal mechanisms both for the bringing into force of the asset-freezing regime and for the licensing regime-a point that has been mentioned in the debate.

Under the order as it stands, the Treasury, acting on the basis solely of reasonable suspicion, and without any prior supervision by the courts, can subject a person to the full asset-freezing regime. There is absolutely no appeal. There is judicial review, and we have debated its adequacy, but the conclusion that I and many other right hon. and hon. Members have come to in the debate is that judicial review is not adequate. There is not only no provision for an appeal, but no limit to the number of times that a direction, which lasts a year, may be renewed. Effectively, that is an indeterminate-life-sentence. The Government say that they will change their ways and the directions will work differently, but in the past they have worked punitively, not just preventively. We all accept that the object of the exercise is to prevent funds going to terrorist organisations, not to punish people who are merely suspected-without any proof in court-of associating with terrorists.

The proposed changes would replace the existing process with one in which the Treasury applied to the High Court for an order to impose an asset-freezing regime. The Court, not the Treasury, would apply the order based on the facts-as in the Australian regime that has been mentioned-about whether the person
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was connected with terrorism and whether it was necessary to impose the order for public protection. Reasonable suspicion would not be enough; a judgment would have to be made on the basis of the facts as they were, not as the Government simply suspected them to be. The order would last for up to a year, but then, as now, its renewal would be possible through a further Treasury application, which would be judged on the same basis as the first.

I accept, however, that there are emergency circumstances in which applying for a full order might lead to excessive risks. In that situation, the proposed changes would allow the Treasury again to apply to the Court for an interim order, but then, as now, it would be able to do so on the basis of reasonable suspicion. The interim order would be restricted in a way that the Supreme Court itself said was reasonable; it would last only for a month, during which time the Treasury would be expected to apply for a full order; and its extension would be possible only to cover the proceedings on the full order or the time that it took to deal with other relevant proceedings, such as a criminal trial or those under other terrorism legislation.

The 2009 order includes a licensing system, to which Members from all parts of the House have also referred. The regime's problem, which has already been recognised, is that there is no provision for an appeal against the refusal of a licence or against a licence being granted in terms that the persons affected-the subject of the order or their family-find too restrictive. We all know the effects of such orders, especially on the wives of subjects. Several marriages have broken up; there have been mental health problems; and orders have been so restrictive that they have required mothers to ask every day of their children what money they have spent-even on sweets in the local sweet shop. Our new clause would therefore allow full appeals, not just reviews, by anyone who was affected by a licensing order and felt that the licence was too restrictive or wanted to appeal against the refusal of a licence in the first place.

Although this is emergency legislation, and although there is a feeling on all sides that something has to be done quickly, that does not mean that we should carry on doing something that is plainly wrong. It is plainly wrong to give the Executive the power, merely on suspicion, to lock people up without proper, full access to the courts. I come back to what Lord Atkin said in Liversidge v. Anderson, a case that all law students know: amid the clash of war, the laws are not silent. We will debate the question of whether this is a war on other occasions; nevertheless, the law should not be silent.

8.45 pm

Mr. Hoban: I find it a bit rich for the hon. Member for Cambridge (David Howarth) to propose these amendments and this new clause given that he voted against the idea of having a sunset clause that lasted until 31 March because he felt that that would not provide enough time for proper consideration of the draft Bill. Yet he is proposing a set of amendments and a new clause that would fundamentally change the law in this area, and he thinks it appropriate to deal with them in the space of an hour and a half on a Monday night without proper exposure to the wider world. I know that consistency is not necessarily a virtue for which Liberal Democrats are renowned, but he needs to
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be consistent about this matter. This is not the appropriate occasion on which to introduce into the Bill safeguards of the kind that he has outlined, which would open the door to enabling these provisions to be challenged through the court system on the grounds of human rights.

I am happy to acknowledge that the hon. Gentleman raises some fundamental issues. There are important issues to be debated but, given that there is a sunset clause in the Bill, I question whether now is the right time to do so with an expectation of changing the law to this effect. He may well say later that these are probing amendments, not a huge attempt to change the law, and that may be fine, but he gave no indication that that is the case. This is not an appropriate opportunity to debate such fundamental reforms, which would need proper scrutiny and engagement with external stakeholders, and I am a bit surprised that he has chosen to table these amendments at this time.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I rise to support the amendments, as I believe that they would be a very helpful step forward. The hon. Member for Fareham (Mr. Hoban) said that it is a bit rich of the Liberal Democrats to vote in the way that they did. I voted that way as well, but I am equally concerned about the purport of this Bill.

As we have heard, there are two main issues regarding what the Bill does: a lack of scrutiny and a lack of legal redress, both of which would be dealt with in the second amendment to which the hon. Member for Cambridge (David Howarth) referred. Like others in this Chamber, I am sure, when I hear the words "reasonable suspicion" I always think, "How is that tested?" Usually, the normal legal procedure then comes in, and a tribunal of some kind decides whether the suspicion was held on a reasonable basis. In this instance, there is no such tribunal to make that decision. I am not here to cast any aspersions on the Exchequer Secretary, the Chief Secretary or anybody else, but we would hope to put in place a form of legislation that will stand the test of time and be a fair resolution of a problem that, I acknowledge, does exist. I do not live in a cocoon: there is a problem, and I recognise that that is so. As we are going to rush everything through today, this is obviously an appropriate time to discuss these amendments, because when can we discuss them, if not now? Surely it is important that we consider them now.

Of course the Government might care to respond in some way to the purport of the amendments in due course. As we heard earlier, Lord Hope, the deputy president of the Supreme Court, said:

He went on to say that the orders


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