Terrorist Asset Freezing Bill

Memorandum submitted by the Equality and Human Rights Commission (TA 02)

Key points 

1. The Commission recommends the Terrorist Asset-Freezing etc Bill is amended to ensure that the guarantee of fair trial rights is put on the face of the Bill, in particular to incorporate the principles of the judgement in Secretary of State for the Home Department v AF (No 3).

2. The Commission considers the Bill, as currently drafted, contains insufficient safeguards to ensure compliance with the Human Rights Act 1998, in particular protocol 1 Article 1 of the European Convention on Human Rights (the Convention).

3. In coming to this position, the Commission has obtained the opinion of Tim Owen QC as to the compatibility of the provisions of the Bill with the Convention. As such, the Commission considers there is a significant risk that the regime, if passed into legislation, could be subject to successful challenge in the Courts.

Terrorist Asset-Freezing etc Bill

Commission’s position

4. The Commission recognises the duty on governments to protect public safety and accepts that circumstances might arise where specific measures are required to address the threat to public safety.

5. The Commission welcomes the previous stated intention of the Government to ensure that counter terrorism powers are necessary, effective and proportionate and meet the UK ’ s international and domestic human rights obligations

6. The Commission also welcomes the improvements made to the Bill during its passage through the Lords, in particular the clarification of the appellate role of the court.

7. The Commission would wish to see the necessary fair trial processes be fully applied to individual cases. This includes access to funding for legal representation and sufficient access to secret evidence to enable the applicant to effectively instruct their special advocate to challenge such evidence. The Commission believes the legislation could then be compatible with the right to a fair trial under Article 6 of the Convention.

8. Counsel advice sought by the Commission states:

"In our opinion, while the essential thrust of the Bill’s aim to achieve close (indeed absolute) control of the financial lives of those who are in fact engaged in terrorism or terrorist-related activity is proportionate and therefore compatible with the requirements of ECHR, the concerns highlighted by the EHRC do raise a serious question as to whether the Bill in its current form does comply with the requirements of Article 1 of the First Protocol to the Convention."

9. A copy of counsel’s advice is annexed to this briefing (not published).

Clause 2 - Power to designate and threshold for making an order

10. The Commission is concerned that the threshold for designating a person (Clause 2) - that of reasonable grounds for believing a person is or has been involved in terrorist activity is too widely drawn and in excess of that required by the UN.

11. The Commission notes the extensive debate around this test during the debates in the House of Lords, and the comments of the Joint Committee on Human Rights. However, the Commission considers that the test of reasonable grounds for belief is still too high, and cannot be justified as necessary within the terms of the European Convention on Human Rights to justify interference with a right - in this case the right to property under Article 1 of the First Protocol of the Convention. The Commission refers to Leading Counsel’s advice, which states:

"The test of proportionality is not only that a measure pursues a legitimate aim and is rationally connected to that aim but also that it goes no further than necessary in interfering with a person’s Convention rights to secure that aim. Since we are unable to identify any cogent reason why the Treasury, and the High Court on appeal, cannot be required to be "satisfied" that a person is or has been involved in terrorist activity before imposing the very substantial interference with the rights of the individual concerned under Article 1 of the First Protocol to ECHR which is inherent in any final designation, it seems to us that the low threshold in fact required to be satisfied under the Bill as it currently stands is not compliant with the requirements of the Convention"

Solution

12. The Commission recommends moving to a test of the civil burden of proof that of being satisfied that a person is or has been involved in terrorist activity. The Commission considers such a test would be more likely to be compliant with the provisions of the Convention.

Clause 26 - Review of decisions by the Court and

Clause 28 - Associated fair trial provisions

13. The Commission welcomes the inclusion of an appeal regime against designation (Clause 26), and the amendments that were made to this regime in passage of the Bill through the House of Lords.

14. In particular, the Commission welcomes the provision that appeal against designation should be by way of full hearing, rather than the principles of judicial review.

15. In principle, the Commission accepts that this appellate regime, including the use of Special Immigration Appeals Commission (SIAC) procedures and intercept evidence, can be compliant with article 6 fair trial rights. However, to enable an effective guarantee of fair trial rights, it will be necessary to ensure appropriate guarantees are in place in each individual case. In particular, it will be necessary to ensure that funding is available for legal representation and that the SIAC procedures operate in such a way to enable the evidence to be effectively challenged.

16. The Commission notes with concern the Governments response to the Joint Committee on Human Rights in which they consider that the guarantees in relation to secret evidence in Secretary of State for the Home Department v AF (No 3) do not apply to the terrorist asset financing regime.

17. The Commission considers that following the principles in A v UK, the recent Kadi judgment in the European Court of Justice (ECJ), and the statement of Lord Browne in Ahmed v UK, it is clear that the same principles would apply to terrorist asset freezing as control orders. The Commission refers to Counsel’s supplementary advice on this issue.

18. In light of the Government’s response to the JCHR, the Commission considers the Bill should be amended to make clear on the face of the Bill that such fair trial guarantees apply.

19. The Commission remains concerned that there is no appeal procedure for those designated by virtue of being on the EU Council list. Although those subject to EU listing are able to appeal against such listing to the ECJ, the Commission is concerned that the overall ECJ process breaches Article 6 rights.

20. The Commission refers to the recent finding in the case of Kadi v European Commission [1] that the listing procedures invoked against Mr Kadi violated his Article 6 rights. While the process for listing is primarily one for the EU and subject to protection under community law, the Commission regrets that this Bill will enable the Treasury to continue to operate a process which has been found in breach of the Convention.