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"strike at the very heart of the individual's basic right to live his own life as he chooses."
His colleague in the Supreme Court, Lord Brown, said:
"The draconian nature of the regime imposed under these asset-freezing Orders can hardly be over-stated."
The hon. Member for Cambridge said that his amendment would make the Bill human rights compliant by deleting the reference to the UN. I think that that is basically where we are. He is a law professor, and although such
matters are detailed, he explained them clearly. It is not a simple area of law, but I agree that that would be a sensible way forward. It would at least invoke the protection of compliance with human rights as we understand them.
New clause 1 would impose a duty of scrutiny. It would also give the courts an opportunity to review a finding later-there is nothing wrong with that, one hopes-and give the person subject to the order some form of legal redress. As hon. Members from all parties said, merely falling back on the old excuse that a person can seek redress by way of judicial review is not good enough. The people we are discussing are asset-stripped. How are they to finance an application for a judicial review?
In any event, the judicial reviews that we have discussed are subject to the Wednesbury principle. In other words, the major question is whether the Minister concerned acted reasonably in the circumstances. If only part of the information against the individuals designated is known to them, how on earth can they possibly challenge on those grounds? The hon. Member for Hendon (Mr. Dismore) made that point clearly.
The amendments are certainly an improvement on the Bill. The hon. Members for Twickenham (Dr. Cable) and for Cambridge must have spent a boring weekend considering so many minute drafting points. Maybe the hon. Member for Twickenham was not in Twickenham, as I was, but that is another story; I had a legal low, not a legal high, but I digress.
The amendments are seriously worthy of consideration and improve the Bill. I am unhappy about the Bill, but I understand that the Government are in a bit of a quandary and need to do something. However, if we are to have these time constraints, surely we should be able to discuss the measures in detail so that some form of protection could be built into the Bill. The hon. Member for Cambridge has done a good job of drafting his amendments in such a short time. I hope that the Government can respond to them positively.
Sarah McCarthy-Fry: I thank all hon. Members for their contributions to the debate on the amendments, including the hon. Member for Cambridge (David Howarth), who moved them, the hon. Member for Fareham (Mr. Hoban), who spoke for the Opposition, and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), if I have pronounced that correctly.
Before I address the amendments, I want to correct a point about the al-Jedda case. The case concerned the relationship between United Nations obligations and the European convention on human rights, when there is a conflict between the two. In al-Jedda, the House of Lords concluded that UN obligations override convention rights-that is, UN obligations take precedence when there is a conflict. However, the al-Jedda point arose in our case in relation to the al-Qaeda order only, which the Bill does not address. Individuals do not have a right of access to a court to challenge their designation. The al-Jedda point did not arise in relation to the terrorism orders-the subject matter of this Bill-because those orders do not contravene human rights in that way.
Amendment 4 is intended to ensure that the orders have the same legal force as primary legislation. Amendment 6 adds a reference to the Bill in part 6 of the Counter-Terrorism Act 2008. I reject both amendments
because I do not think they are needed, and I hope that the hon. Member for Cambridge will withdraw them. Giving the orders status as primary legislation would give the Government more protection from legal challenge than we believe would be right. The orders could not then be quashed by a court on human rights grounds. That is because a court can strike down an Order in Council on human rights grounds, but it can only declare an Act of Parliament incompatible with the Human Rights Act 1998. Our short Bill will ensure that our Orders in Council can continue to be set aside on human rights grounds until the permanent Bill is enacted. Adding a reference in the Bill to the Counter-Terrorism Act 2008 is unnecessary because the Act already covers all decisions made under our orders.
I move on now to amendment 5, new clause 1 and amendment 12. I listened with interest to the arguments that the hon. Members for Cambridge and for Meirionnydd Nant Conwy put forward. I want briefly to go back over why I feel that the substance of the proposals is wrong, but the main issue is that these are arguments for us to have on the longer Bill.
Accepting the proposals would fundamentally change the nature of asset freezing. It would mean all freezing decisions being taken by the courts, and not by Ministers as at present. Ministers would be able only to refer freezing proposals to the High Court. Freezes based on reasonable suspicion could last for only one month, and would be renewed after a month only if a court could be persuaded that the subject were a terrorist. That would involve a higher test than reasonable suspicion, and it could be a test as high as a conviction. The changes would significantly reduce the operational effectiveness of the asset-freezing regime, which is designed to be preventive.
Reasonable suspicion is a legal basis for asset freezing which is endorsed by the Financial Action Task Force. Under the current system, we do not simply rely on reasonable suspicion, however. Designations must also be necessary for public protection, which provides an additional safeguard. The proposals in these amendments would alter key aspects of the regime, including who made the decisions and what the legal standards should be. Those are fundamental points. The purpose of this temporary Bill is not to remake our asset-freezing regime; it is to restore the existing regime for a temporary period to allow for thorough consideration of the full Bill.
Martin Horwood (Cheltenham) (LD): Am I right in thinking that, when a suspension of the Supreme Court's decision was requested, the Court refused it on the ground that it would simply be
"a procedure that is designed to obfuscate the effect of its judgment"?
In other words, did not the Court expect us to change the principle behind the regime, rather than simply try to find a way round its judgment?
Sarah McCarthy-Fry: No, the basis for the judgment for not giving us a stay was that the Court did not have a legal basis to do that, given that it had quashed the original orders.
Many hon. Members have talked today about not rushing into legislating on issues of importance. The problem that I have is trying fundamentally to rewrite
our existing scheme with a bare minimum of discussion and scrutiny in the few hours that we have had tonight. I look forward to debating the substance of the hon. Member for Cambridge's proposals in due course, but the time to debate such significant changes is when we consider the permanent legislation in detail, not now. Our priority now is to restore our existing regime, as the Bill seeks to do, and to create time for us to consider in greater depth how the permanent legislation should be framed. On that basis, I invite the hon. Gentleman to withdraw his amendment.
David Howarth: The Minister made a legal point at the start of her speech, but I do not think she could fully have considered the judgment by Lord Phillips in the Supreme Court, who clearly considered the position under al-Jedda and the human rights position before discussing the individual merits of the cases against either order. What the Minister put to the Committee was not the legal position, but simply her hope about what the legal position might be, were the matter to return to court-which, I am afraid, is where it will probably end up.
The arguments against the amendments seemed simply to be that the time is not ripe to discuss the detail of these provisions, but we are being asked to put them into force for almost another year. I remind the Committee that the Supreme Court was very clear about the degree to which these orders undermine fundamental rights. The hon. Member for Fareham (Mr. Hoban) talked about consistency, and we consistently voted against the timetabling order earlier today because we thought it would be better to discuss these matters in more detail with more time. However, we have to deal with the time we have, and the very least we can do in that time is to put right the main injustices and faults of the legislation before us. That is what the amendments attempt to do.
In particular, the new clause, and amendment 5 which would pave the way for it, would put right the most obvious faults in the legislation-faults that the hon. Gentleman's own Back-Bench colleagues referred to again and again in their speeches on Second Reading. They included the lack of appeal and of judicial process. We do not have to wait for months to put that right: we can do so here and now.
Amendment 4 deserves further discussion, and the Government's response shows that they need to think about it a lot more, but amendment 5 is something that we should vote on here and now. I beg to ask leave to withdraw amendment 4.
Amendment, by leave, withdrawn.
Amendment proposed: 5, page 1, line 11, at end insert-
', but subject to the amendments made by section [Amendments to the 2009 Order]'.- (David Howarth.)Question put, That the amendment be made.
Amendments made: 9, page 1, line 13, leave out
'by the Treasury under any of'
Amendment 10, page 1, line 15, leave out
'by the Treasury under any of'
and insert 'under'.- ( Sarah McCarthy-Fry .)
Question proposed, That the clause, as amended, stand part of the Bill.
David Howarth: I will be very brief. I simply want to say that although we did not object to the Bill receiving its Second Reading, we find the methods adopted by the Government in clause 1, especially now that they have not been amended in any significant way- [ Interruption. ]
The First Deputy Chairman: Order. There really are far too many private conversations going on in the Chamber. It is difficult to hear what the hon. Gentleman is saying.
David Howarth: Thank you, Mrs. Heal. As I was saying, although we did not vote against Second Reading and we accept the need for action on this issue, we are disappointed that the Government seem so obdurate, in resisting any suggestion to improve how the main part of the Bill-clause 1-works, and especially in their utter complacency on the issue of human rights and their refusal to accept the need for proper scrutiny, review and appeal. For that reason, I shall be advising my colleagues to vote against clause 1 stand.
Sarah McCarthy-Fry: I am rather disappointed with the Liberal Democrats' position. As a Government we want to ensure that the Bill has sufficient scrutiny as it goes forward. I made it clear in my response to the amendment proposed by the hon. Gentleman that I do not think it appropriate that such a fundamental change should have been made with less than a few hours' scrutiny. As I said to him, I look forward to debating those points as we go forward. I am very disappointed that the Liberal Democrats are choosing to vote against a clause that prevents terrorists from having access to financing or the financial system. Quite frankly, it is shameful.
Question put, That the clause, as amended, stand part of the Bill.
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