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In this House there was a little more scrutiny, and Members asked the Minister why there was no explicit reference to terrorism in the drafting of the clause. When she was so challenged, the Minister, the noble Baroness, Lady Symons of Vernham Dean, insisted that the reason why there was no direct mention of terrorism was that,
- “it is not possible to separate out the matters in a practical sense because the other crimes are the source of revenue for terrorists”.
“The Government do not believe that it is possible to define terrorism in a way that would distinguish it from activities related to it”.—[Official Report, 3/9/01; col. 600.]
In other words, the powers were meant to tackle terrorism; they could not be defined too closely but were certainly supposed to tackle crimes connected with terrorism.
The problem that the Government have had in recent weeks is that there was no intention on the part of those supporting this legislation that it should be used in matters economic, so that the Government might in this way freeze the assets of another country’s bank, as in the case of Landsbanki. I have tabled this new clause so that the Committee can discuss the principle at stake here. Parliament has provided very serious new powers on terrorism since 2001, and this is one example of where such a power is being used somewhat differently from the way we envisaged. Whether the Government were right, in economic terms, to take the action they did is a different question. The question here is whether we should be using terrorism legislation and associated legislation to achieve a very different end.
At this stage, this is a probing amendment to try to make sure that the Government are quite clear under what legislation and to what ends they will be using these powers. I beg to move.
Lord Goodhart: I would like to take a little further the argument that has just been put forward by my noble friend and look at the important question of how the courts would, or will, interpret Section 4 of the 2001 Act if the order relating to the Icelandic bank is brought forward. It is very difficult to read Section 4 of the 2001 Act as it stands as applying to purely economic matters. For example, if a foreign country, perfectly understandably and legitimately, bans the import of British beef on the grounds of foot and mouth disease or mad cow disease, that would unquestionably be an act to the detriment of the United Kingdom’s economy. I cannot imagine any court interpreting that order banning the export of British cattle as being within the operation of Section 4.
The Government have to face the fact that if Section 4 in its present form comes in front of a court, there will be great difficulty in interpreting it. It is perfectly possible that that court might come to the conclusion that the use of these powers in the present circumstances against the Icelandic bank was not, in fact, a legitimate use of Section 4. The Government will have to consider not only what Section 4 should mean but what it in fact means now.
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Lord Kingsland: Section 4 of Part 2 of the Anti-Terrorism, Crime and Security Act 2001 was recently used, as the noble Baroness indicated, to freeze the assets of an Icelandic bank. On the face of it, this does not appear to be appropriate legislation to use against a friendly state. However, I should make it absolutely clear that we, the Opposition, supported the Government’s move. There is no doubt that the purpose of the legislation, in the light of its legislative history set out admirably by the noble Baroness, is, to a degree, an occluded one.
I think that there is merit in trying to seek greater certainty about the objects of this legislation. For that reason, I believe that the noble Baroness has made an important contribution to a debate which I know she intends to continue on Report.
Lord Elystan-Morgan: I wonder whether I may raise a question which I respectfully suggest goes even deeper than those raised by the noble Lords, Lord Goodhart and Lord Kingsland. Does the golden rule of statutory interpretation which I was taught as a law student a very long time ago still hold good? That rule, as I understand it, is this. Where the language of an Act of Parliament is perfectly clear to understand, that is the meaning of that Act of Parliament, whatever Parliament intended. If, on the other hand, the language is in some way ambiguous, one is entitled to look behind the words of the Act and consider what the intention of Parliament was. It is a very old rule which is common not just to Acts of Parliament but to the interpretation of wills and documents. Is that golden rule still in existence? If it is, then even though there may be a moral obligation on the Government to think twice whether they should use that legislation in a context that may never have been intended in the first place, it does not affect the validity of that situation. I apologise to the Minister for raising that question, but it goes to the very root and foundation of this issue.
3.30 pm
Lord West of Spithead: I thank noble Lords for their input and the noble Baroness for her query and probing amendment. Although I was slightly surprised when I realised that the Anti-Terrorism, Crime and Security Act was being used to freeze the assets of a bank in Iceland, there is no doubt that Section 4 of the Act allows the Treasury to make freezing orders when an action is to the detriment of the UK economy or constitutes a threat to the life or property of a UK national.
Lord Goodhart: The Minister said that there is no doubt. Does he accept that there is a real doubt whether the scope of Section 4 goes as far as authorising an order of this kind?
Lord West of Spithead: As I understand it, it does allow that. The Defence (Armed Forces) Regulations 1939 used to allow it, and the Emergency Laws (Re-enactments and Repeals) Act 1964 contained the same abilities. Those were then subsumed by this Act to allow freezing action of this kind. The ATCSA was not intended to be a purely counter-terrorism Act. At the time, the noble Lord, Lord McIntosh, explained in
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In its previous incarnation, the power has been used twice before: in 1990, when Iraq invaded Kuwait, in order to protect Kuwaiti assets in the UK and prevent the Iraqis misapplying funds; and as a defensive measure to freeze the assets of Iraq. As has been pointed out, the power was used this month over the assets of Landsbanki. As noble Lords will know, any use of the ATCSA has to be debated and approved by both Houses. Without that approval, the freezing order will cease automatically after 28 days. The debate regarding this asset freeze is scheduled to take place later this month and will provide an opportunity for Members to raise concerns regarding use of the power. The noble Lord, Lord Goodhart, raised some interesting points and that debate will be a good opportunity to debate them.
The amendment would limit the ability of the UK Government to act effectively in an emergency and protect the interests of our country. As the noble Lord, Lord Kingsland, said, it was absolutely right that we did so in this case. We need an ability to do this. That is the current position, and it will be an interesting debate. The Act was not intended to be confined to terrorist threats. Given that the amendment would have consequences outside the scope of the Bill, we do not consider it appropriate and would like it to be withdrawn.
The noble Lord, Lord Elystan-Morgan, mentioned the golden rule. I am not sure how to address the point, as it is a little beyond my competence, but I could look at it. If the golden rule is that we need an ability to do this, and the ability lies somewhere in some Act, and if this is not the best way to do it, then we need to think about that. However, we certainly need the ability because we need to take this kind of action.
Baroness Miller of Chilthorne Domer: I thank all those who have spoken in this debate. There are some very important points of principle here, and I am glad that the House will have the opportunity to discuss them further when the order is debated. Noble Lords who are much more expert than me—my noble friend Lord Goodhart, the noble Lords, Lord Kingsland and Lord Elystan-Morgan—have all spoken about the courts’ interpretation of this provision. That is one angle to be debated when we debate the order. Of course, there is also quite a large issue about the economic angle. There will no doubt be some ripples throughout the financial world as a result of this situation, and it would be very unfortunate if there was not total confidence that our laws—and the interpretation of them—were firm. A knock-on consequence might easily be that other countries and Governments would choose not to leave their assets here, with a provision that could be open to wide interpretation.
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There is an awful lot more to debate here, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 75 [Initial exercise of powers by Lord Chancellor]:
[Amendment No. 105NA not moved.]
Clause 76 [Interpretation of Part 5]:
Lord West of Spithead moved Amendments Nos. 105P and 105Q:
On Question, amendments agreed to.
Clause 76, as amended, agreed to.
Clause 77 [Certificate requiring inquest to be held without a jury: England and Wales]:
[Amendments Nos. 106 to 111 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 77 shall stand part of the Bill?
Baroness Miller of Chilthorne Domer: Clause 77 and some of the following clauses propose that inquests could be held without a jury and with a specially appointed coroner, appointed by the Secretary of State. The Government proposed that this could happen in three cases: in the interests of national security; in the interests of a relationship between the UK and another country that might become embarrassing; and in the public interest—which is extremely wide. As the Minister has been kind enough to put his name to my opposition to clause stand part, I do not intend to make a very long speech on why the Government’s proposition is such a dangerous and undesirable one. However, the Minister said in his letter—for which I thank him—that the Government are withdrawing the proposal only so that they can bring it back in the more appropriate Coroners Bill. I therefore need to make a few substantial points on the Government’s thinking. We agree that the Coroners Bill is a far better place to debate the proposals, but we hope that the proposals will be far more focused and much narrower when they are brought back.
The historical precedent for having coroners deal with deaths, particularly those that occur at the hands of the state, is extremely important, and one that we do not intend to see either diluted or given up. The office of coroner dates from 1194. Coroners investigate more than 200,000 deaths a year in this country and hold inquests into some 25,000. Very few of these cases involve deaths at the hands of the state and its agents, but it is especially these cases that need to be investigated and need an independent coroner and jury. How else can society maintain confidence in the state when people are, for example, shot by the police or die in custody? It is very important that the laws are followed and society’s interests are guarded. It is critical for maintaining the confidence of society that this is not seen as an executive decision followed by a secret executive inquest.
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Many Members of the Committee have a far greater knowledge of the 1988 SAS shootings in Gibraltar than I do. The state’s effort to keep that matter out of the public gaze—and the battle to allow screening of the “Death on the Rock” film which was won by my late and much lamented friend Lord Thomson of Monifieth—is a lesson that we should all take. The incident shook the public core, and there are important lessons to be drawn from it.
Lord Mawhinney: I declare an interest in that I was one of the Northern Ireland Ministers at the time of this Gibraltar shooting. Perhaps the noble Baroness would care to tell the Committee a little more about the lessons she thinks should have been learnt from the incident.
Baroness Miller of Chilthorne Domer: As I mentioned, a number of Members of the Committee have more experience on this. I have already mentioned my noble friend, who was closely involved. The noble and learned Lord, Lord Howe, is another. The noble Lord, Lord Windlesham, with an eminent QC, produced a book on the case for allowing the media to cover the incident. The lesson that I have taken from it, from a greater historical distance, is that the attempt to keep it out of the public gaze only exacerbated an already very difficult situation. I hope the noble Lord will share his thoughts on the subject when I have finished speaking on clause stand part, because he clearly has some. I am sure that some of my noble friends will also speak.
It is not clear why the national interest regarding inquests cannot continue to be covered by national interest immunity. This system allows the judiciary to make a judgment. It is for the courts to reconcile the potential conflict between two public interests—between the public interest in the administration of justice, which demands that the relevant materials are available to the parties; and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging to the state. That balance is currently held by the judiciary. One of the questions we are asking is why that should not continue.
Who should ultimately decide which of those interests should prevail in a particular case? The answer, as I said, has long been clear in law—it is a function of the courts. The Government were saying, before they put their name to my opposition to clause stand part, that they should in future make this judgment. We feel that that would be a drastic step. I note the comments of the Joint Committee on Human Rights, which was very exercised by the proposal. I look forward to hearing the views of noble Lords who have vast experience on this subject.
3.45 pm
Lord Lester of Herne Hill: I am a member of the Joint Committee on Human Rights, which has just been mentioned. I was perhaps the only person who spoke on this subject at Second Reading on 8 July; I shall not bore the Committee by repeating most of what I said then. I began by drawing attention to something that sounds immensely boring but is important: the Explanatory Notes on the Bill wholly failed to deal with the human rights implications of the radical
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The Joint Committee on Human Rights explained in its report in October why it did not find that explanation satisfactory. In January 2008, shortly after the Bill was published, the committee made clear the nature of the human right concerns over the provisions. They do not rest on any claim that the convention requires inquests to be held with a jury. They concern the effect of the provisions on the ability of the UK to comply with the positive obligation in Article 2 of the convention to provide an adequate, effective and independent investigation, including sufficient public scrutiny and involvement of the next of kin where an individual has been killed as a result of the use of force, particularly by state agents. The committee said:
“We find extremely regrettable the Government’s continuing failure to provide an accessible explanation, in the Explanatory Notes to the Bill, for its view that the provisions are compatible with Article 2 ECHR”.
Why does that matter? It matters because there is a dedicated committee of both Houses whose job it is to monitor whether proposed legislation is or is not compatible with convention rights. That role cannot properly be performed unless the government department concerned plays with its cards face up on the table rather than concealing them. Otherwise, there is then a wholly unnecessary procedure in which the committee has to ask the Home Office and Ministers to deal with points that the Explanatory Notes could have dealt with perfectly well in the first place. This wastes time and resources, and hampers the role of both Houses of Parliament in scrutinising government legislation.
Many departments are not guilty in this respect. I am not suggesting that the Home Office is alone in being guilty, but there was a deplorable lack of candour and thought by the department when the Explanatory Notes were first drafted. The committee takes a serious view of the matter. I am not suggesting that it is worth going into history any more, but the committee hopes that this will not happen again.
We on the committee greatly welcome the fact that the Government have at last seen fit to take these provisions out of the Bill. Indeed, in my speech in July, I said that I hoped that sunset would come in October; it has done so, in the sense that we will now have these unsightly provisions excised. What is not good news is that the Home Office proposes to come back to them in a coroners Bill. We ask that there should be full public consultation on that proposal before that happens. I hope that the Minister will be able to assure us that there will be.
The convention requirements—the positive obligations on all states—are clear. During the debate in the other place on 10 June, the admirable shadow Home Secretary—I hope he will not mind my saying that—Dominic Grieve QC MP and Mr Dismore MP, chair of the JCHR, explained that the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. Those conducting the investigation have
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The procedure imposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury and with a special coroner if, in the Minister’s opinion, it is in the interests of national security or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. Therefore, the Secretary of State seeks, or was seeking, sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. I described the Government’s excuse for this as an example of what I called Home Office chutzpah, but most of your Lordships did not know what that meant. It means in Yiddish an infernal cheek, and that is what I think this was.
Independence is essential and a system based on the special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations because it would be fatal to any appearance of independence. Dominic Grieve MP rightly asked:
“What is the point of suddenly dispensing with juries? ... it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. ... If ... the Government came forward with other ideas and proposals ... that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake”.—[Official Report, Commons, 10/6/08; col. 249.]
I entirely agree with that and I agree with the Justice Committee in the other place, which called for the proposals to be withdrawn pending more detailed scrutiny and the proposed coroners Bill, as did the Joint Committee on Human Rights.
So for all those reasons it is most welcome—
Lord Lloyd of Berwick: I am very grateful to the noble Lord. I am not at all clear what the purpose of this now is. I thought there was common ground that these parts of the Bill will not be proceeded with now. If we are going to hear about them later under the fresh coroners Bill, why do we need to go into it now?
Lord Lester of Herne Hill: We do not need to go into it now and I am about to stop going into it at all. The reason I am making this short speech is to put up a marker because if, having rightly taken these provisions out, the Government are proposing to put them back in again without heeding the concerns about the convention rights—they have not dealt with the convention rights arguments—it is very important for the Joint Committee, myself and others to make it clear to the Home Office that we shall have exactly the same battle next time. Therefore, this is simply a way of welcoming the withdrawal of these provisions, which I now do, and indicating that enough is enough.
Lord Lloyd of Berwick: But is this not the very point that the noble Lord made at Second Reading? Surely the Government must be given credit for listening to something of what the noble Lord says.
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