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Lord Mackay of Clashfern: My Lords, it is worth mentioning that, ordinarily, if the pre-legislative scrutiny were to be done by a Joint Committee of both Houses, which might be appropriate here, that committee would normally call for evidence from people who had an interest in the matter-of whom there will be a great number in this case, although one or two of them may have disappeared. Pre-legislative scrutiny given by the
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Baroness Noakes: My Lords, what are the Government's intentions towards pre-legislative scrutiny? Do they intend to seek to set up a Joint Committee of both Houses to commence the work of scrutinising the draft legislation and when do they intend to do that? Alternatively, do they intend to start a consultation process with a public call for people to comment on the command paper that they issued last week? The command paper is rather curious. It is a wrapper around a draft Bill with Explanatory Notes and an impact statement, but without a foreword or any kind of explanation of why it is there. The Minister has referred to pre-legislative scrutiny, but it would be helpful to know what the Government's intentions are.
Lord Myners: My Lords, I understand that whether a Joint Committee is established is a matter for both Houses to determine, but I can certainly see merit in a Joint Committee. I would expect others to express views on that matter. I have already indicated my expectation that there should be a call for evidence and an expression of views and opinions and that that should be wide and comprehensive because of the delicate and sensitive matters involved. We are trying to strike the right balance between protecting national interests from the threat of terrorism while at the same time not encroaching on the civil liberties of individuals. Parliament needs to show itself to be open to a wide range of opinions and questions.
Baroness Noakes: I am sorry to press the Minister, but he said that he expected that this would happen. Surely the Government have plans. They have come in with a proposal for a sunset date of the end of December. What plans do the Government have to consult? As I pointed out, the command paper containing the draft legislation was issued in a sort of void last week and did not constitute the start of the consultation process and did not call for evidence. What plans do the Government have and when will they start?
Lord Myners: I have already indicated to the Committee that my expectation is that we will issue a call for evidence and set up a comprehensive pre-legislative scrutiny process. Whether that matter is conducted by a Joint Committee of both Houses is for both Houses to determine not the Government.
Baroness Hamwee: My Lords, the noble Baroness and others are not persuaded by my July date and I am not persuaded by the April date. The practical reason that the noble Baroness is suggesting is that one should get to the full Bill, if I may call it that, by the end of April and then return to it at leisure afterwards. The reality is that there would be no appetite for that. We
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The term "straitjacket" was used. This is a matter on which we should impose a straitjacket on ourselves. The position now is unsatisfactory and how we deal with that and the conditions we impose on ourselves should not be for our convenience, but with a view to getting the best outcome, which involves many factors.
Of course, the Minister referred to balancing the needs of national security and we did not vote against the Second Reading of the Bill. I welcome his acknowledgement of the human rights matters. It is difficult to believe that it is necessary to give three months to pre-legislative scrutiny. Organisations with a particular interest in the bigger Bill are already well appraised of the issues. I asked a representative from one yesterday about the time needed-I will not say which one it was because I do not want to pin it down without prior warning-but the message that I got back was that this is something they could do very quickly indeed. The July date would have been a balance. However, I would not like to hear an excuse at a later date that insufficient time had been given to looking at what would be an extremely important Bill. On a more practical note, I can see that I am on a loser and so I beg leave to withdraw the amendment.
7 pm
Lord Thomas of Gresford: In moving this amendment, I will speak also to Amendments 3, 4, 5, 6, and 7 that are grouped with it. Amendment 2 refers to the decision of the Supreme Court on 27 January that struck down the 2006 order. It was confirmed by the later decision of the Supreme Court that it had no discretion to suspend the order. It had the effect of declaring that the 2006 order had never possessed legal force and that it had been void from the start. It was therefore never an order in any legal sense. Your Lordships will recall this was a matter that was discussed at Second Reading this afternoon. It is only a "purported" order and the amendment corrects the description of the orders in the context of this Bill. It has the effect of protecting the clause from the argument-as, for example, in the Anisminic case-that a legal nullity cannot be used to give rise to further obligations.
The Bill currently gives the provisions of the orders retrospective effect and cloaks them in the authority of the United Nations Act 1946 if they derive their force from that Act. Amendment 3 removes the restrospectivity and the reference to the 1946 Act altogether so that the orders would now, instead, have their own freestanding legal force as primary legislation.
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Amendment 5 is consequential. Its effect is to preserve a consequence of the current lines of the Bill which is that the provisions of the Counter-Terrorism Act 2008-about special procedures to preserve security in proceedings about financial restrictions-will apply to asset-freezing proceedings under the Bill.
Amendment 6 goes with Amendments 4 and 7. Its effect is to carry over the effect of any current purported directions of the Treasury, which the Supreme Court has said have no legal effect, into new interim orders as established by the new clause. It would mean that the Treasury would have one month from the passage of the Bill to apply to the High Court for full orders. The amendment also preserves the effect of current licences granted by the Treasury. Amendment 12 is consequential to that, so that the current orders would continue under this proposal.
Amendment 7 is the important amendment which inserts a new clause into the Bill. The effect of that new clause is 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, importantly, to introduce an appeal mechanism for the licensing process. Under the order as it currently stands, the Treasury, acting on the basis of reasonable suspicion alone and without any prior supervision by the courts, may subject a person to the full asset-freezing regime. There is no appeal and no limit to the number of times a direction, which lasts for a year, may be renewed. Your Lordships heard all these criticisms at Second Reading this afternoon.
The amendment and the new clause replace the existing process with one under which the Treasury applies to the High Court for an order to impose the asset-freezing regime on an individual. The court may impose an order on the basis not of reasonable suspicion but on the basis of findings of fact that the person concerned-the individual against whom the order is directed-is connected with terrorism and that the order is necessary to protect the public from terrorism. Reasonable suspicion would not be enough for such a full order, which would last up to a year and which may be renewed on further application from the Treasury as long as the findings of fact remain valid.
For emergency situations, this draft clause provides that the Treasury would be able to apply to the High Court for an interim order on the basis of reasonable suspicion alone, but that interim order would last for a month only. In that month the Treasury would be expected to bring proceedings for the full order in the High Court which would have control of the proceedings. The interim order could be extended beyond a month but only to cover the time taken for the subsequent proceedings for a full order, or for any relevant criminal trial or other proceedings. The purpose is to replace the reasonable suspicion test with a finding of fact that the individual is connected with terrorism.
The 2009 order introduced a licensing system under which the rules that forbid giving support to the subject of the asset-freezing regime might be relaxed for certain purposes. The amendment to Article 17 of the 2009 order maintains that licensing system but does allow an appeal to the High Court both for the
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Baroness Noakes: My Lords, the noble Lord, Lord Thomas, has made a good case for the amendments in this group. I will not go through the amendments in detail or comment on the particular drafting of the amendments because I sympathise with all the points that he has made. As I explained at Second Reading today, we do not regard this Bill as one to which substantive amendments should be made. Essentially the fast-track process does not lend itself to this kind of amendment. Our normal process is a deliberative one, with pause for thought after Second Reading and again after Committee. I do not know about the Liberal Democrat Benches, but I do not feel as if I have paused for thought at all today.
If the Government had introduced a Bill along the lines of the draft issued last week, we would have had a better opportunity to reflect on these amendments. If we were going to try to perfect the 2009 order, there would be other amendments that we would think worth considering. We will not be able to support these amendments today. However, is saying that, I agree that they raise valid points and I hope that we shall have a proper opportunity to consider them in the context of a full Bill at some point.
Lord Elystan-Morgan: My Lords, the noble Lord, Lord Thomas of Gresford, makes a number of points with which I have very considerable sympathy. However, I say with the utmost respect that Amendments 2 and 3 may well be unnecessary. It is not a case of saying that these provisions shall have the effect as if they were primary legislation-they are primary legislation. Although there is a history that leads us back to the realms of various elements of delegated legislation, that has no real relevance to these provisions at this time.
I have immense respect, regard and admiration for the noble Lord, Lord Myners, in every context, particularly in this one. If he had been spending or mis-spending his life for the past 30 years in the courts, he could not have made a better fist of it than he did at Second Reading today. However, he said that we were interpreting UN Security Council Resolution 1373 as including a situation where a person not only was proven to have taken part in terrorism but was indeed suspected of that. That is an utterly logical and understandable attitude to take, but technically very probably a wrong one for this reason. Although that is the historical narrative of what has brought this crisis to your Lordships' House today, with regard to the actual legislation that we are considering, the United Nations resolution is totally irrelevant. If there never was such a thing as the United Nations, the legislation would stand or fall on its own feet. The fact that you may in legislation refer
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It is often said that Parliament can do whatever it likes except make a man a woman and a woman a man. I am not sure that that restriction applies any longer. Be that as it may, Parliament has total sovereignty. It is in the exercise of that sovereignty that we are entitled to do this. We are referring to the wording of what were once delegated powers and incorporating those powers in primary legislation. It is the primary legislation that will be judged from now on. On that basis, much as I sympathise with the views expressed by the noble Lord, Lord Thomas of Gresford, on the other matters, I respectfully submit that Amendments 2 and 3 are not necessary.
Lord Boyd of Duncansby: My Lords, perhaps I could ask the noble Lord about Amendment 7. The Bill extends to Scotland, but I do not see any reference to the jurisdiction of the Scottish courts. Perhaps the noble Lord can tell us what role, if any, the Scottish courts might play, and what happens to somebody in Scotland whose assets are frozen.
Lord Thomas of Gresford: The noble Lord makes a valid point. Fortunately we have a Report stage at which all these matters can be verified.
Lord Pannick: My Lords, I share the concern of the noble Baroness, Lady Noakes, about whether today, in debating the Bill, we can address the important and difficult issue of the substantive conditions that must be satisfied before an asset-freezing order takes effect. I am also concerned that the amendment moved by the noble Lord, Lord Thomas of Gresford, seeks to confine the substantive order to circumstances where there is a finding of fact that the individual is connected with terrorism. There is a strong case for maintaining such a power in circumstances where the individual is reasonably believed to be associated with terrorism. It is a much stricter test than the test merely of reasonable suspicion that the Government wish to maintain.
Lord Mackay of Clashfern: First, I will make a small technical point. Clause 1(2)(d) refers to the Terrorism (United Nations Measures) Order 2009. Under Amendment 2, it is to be called "purported". When it comes to later amendments, it has suddenly dropped its "purported" and has become-what should I say?-fully fledged.
There is a Scottish point that must be dealt with. We are in grave difficulty when we attempt to alter the test that was used in the orders that have been quashed, because it is hard for us now to take the view that the Government's protection is more than is necessary in the circumstances, with which they are much more familiar than any of us can be. I would not wish to take the risk of reducing the ambit of the orders without a full discussion, for which we have neither the time nor the opportunity. This is meant effectively to put in place the orders that have been quashed or
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Baroness Scotland of Asthal: My Lords, I respectfully agree with the comments made by the noble and learned Lord, Lord Mackay. The debate that we have just had is illuminating because it identifies how complex and different the views expressed on this issue are. It is clear that the amendments proposed by the noble Lord seek to bring about a fundamental change in the nature of the terrorist asset-freezing regime that we have. I make no comment for the moment on whether they are soundly based: I simply say that that is their purpose. We will not be able to deal with them adequately-I would almost say "at all"-this evening. Justice should be done to them, because we know from the Supreme Court decision that it wanted Parliament to have an opportunity to have a mature, reasoned and seasoned debate. That is what we have decided to do in relation to the management of the Bill.
7.15 pm
We disagree with the noble Lord's premise. The amendments that he seeks to pursue concern two issues. The first advocates putting asset freezing in primary legislation rather than Orders in Council, in the belief that this is necessary to restore access to Convention rights. The second removes the asset-freezing decision from the Executive and gives it to the judiciary. That is a very significant change. Therefore, I agree with what was said by all other noble Lords: the point was made by the noble Baroness Lady Noakes, the noble Lord, Lord Elystan-Morgan, and, in effect, by my noble and learned friend Lord Boyd, who pointed to the fact that we have not dealt with Scotland. When you stand at the Dispatch Box, that is always something that you fail to do at your peril. Salient points were also made by the noble Lord, Lord Pannick. All the points recognised that the matter is complex, difficult and will take time to discuss. Notwithstanding the huge power of your Lordships' Committee, I do not think any of us believes that we will be able to do it tonight.
Perhaps I may say, with the consent of the Committee, that although I assure the noble Lord that I have many pages of explanation about why there are difficulties in what he proposes, I will save the Committee from that delicious torment and ask that we postpone it for another day.
Lord Thomas of Gresford: My Lords, I refuse to accept any criticism on the drafting or principles because the Bill was published only a couple of days ago, which has not given anybody a chance to look at it in depth. I accept the criticisms about Scotland: I spend much of my time in Scotland, so I am very concerned about Scottish legislation. I am also concerned by the point made by the noble Lord, Lord Pannick, about whether the test should be reasonable belief or a stronger finding of fact by the court. Obviously these matters should be pursued when the full Bill is brought
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Baroness Noakes: I shall speak also to Amendment 6C. These amendments concern the further directions which the Government might make under the orders made under the United Nations Act. I fully accept that the Government may need to make directions that further persons are designated for the purposes of asset freezing between the time that this Bill receives Royal Assent and the time when it is replaced by substantive primary legislation. I also accept that the Government may need to renew or vary a direction. Therefore, I accept the thrust of Clause 1(3)(a).
However, my concern is that, as drafted, it appears that further directions can be made under all the orders listed in Clause 1(2). My amendment deletes the reference to "further directions" in subsection (3)(a). Amendment 6C inserts a new subsection into Clause 1 which specifically says that:
"Further directions may be made under",
the 2009 order only but not under the 2001 and 2006 orders.
The 2009 order is far from perfect; we had a small taste of that on the previous group of amendments. The advantage of the 2009 order is that it is an improved version of the earlier orders: the 2001 and 2006 orders allow the Treasury to designate someone who may reasonably be suspected to be or may be a terrorist. That was removed following the Court of Appeal judgment and does not appear in the 2009 order. The 2009 order made other beneficial changes.
I am aware that the 2006 order repealed part of the 2001 order and that the 2009 order repealed part of the 2006 order. It may well be that my amendment is unnecessary because no further directions can be given under the earlier orders. However, I am not absolutely sure of the position, and that is why I have tabled the amendments. If directions can be given only under the 2009 order, can the Minister explain why subsection (3)(a) is drafted as it is? It refers to all the orders. I beg to move.
Baroness Hamwee: Perhaps I could ask a question which follows on from what the noble Baroness, Lady Noakes, has asked about the earlier orders. In what circumstances would the Government want to rely on the earlier orders?
Baroness Scotland of Asthal: I can clear this up. The noble Baroness, Lady Noakes, says that she seeks, by these amendments, to provide that any future directions
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